Rugby Football Union v Secretary of State for Transport, Local Government & Regions

Whether a proposed activity falls within a use class depends on the wording of the relevant entry in the Use Classes Order. Where the entry describes use as a particular facility, the land must possess the essential characteristics of that facility. A stadium used for concerts is not thereby used as a concert hall where it lacks the defining physical characteristics of a hall, such as a roof.

The expression “other outdoor recreation” in Class D2(e) must be read in context. It refers to activities of a sporting or physical nature, rather than every form of leisure or enjoyment. Spectators’ enjoyment of sport or music does not make the land an area used for outdoor recreation.

The Rugby Football Union appealed under section 288 of the Town and Country Planning Act 1990 from a decision of Ouseley J in the Administrative Court. The judge had upheld an inspector’s dismissal of an appeal concerning the proposed use of Twickenham Stadium for an unlimited number of concerts.

The stadium was accepted to fall within Class D2(e) of the Town and Country Planning (Use Classes) Order 1987 as an area for outdoor sport. The issues were whether concerts constituted use as a concert hall under Class D2(b), or alternatively use for other outdoor recreation under Class D2(e).

1. Appeal dismissed. The proposed concerts would not constitute use of Twickenham Stadium as a concert hall within Class D2(b).
2. The correct method is to identify the existing use class and then ask whether the proposed activity satisfies the wording of the relevant entry. The phrase “use as a concert hall” requires the land to have the essential physical characteristics of a concert hall. Twickenham was mainly open and lacked a roof. It was therefore not used as a concert hall, even though concerts were held there.
3. The wording of the Use Classes Order varies between entries. Some entries ask whether land is used for a stated purpose, while others ask whether it is used as a specified facility. The applicable wording must be applied according to its form and content.
4. Class D2(e) must be construed in its context. “Other outdoor recreation” refers to recreation of a similar sporting or physical character to the activities identified in that paragraph. A broad meaning covering all enjoyable pastimes would make the specific activities in Class D2 redundant and permit unexpectedly wide changes of use.
5. The relevant activity was the use of the stadium, not the enjoyment of spectators or performers. Watching rugby, listening to music, and performing professionally did not constitute the physical recreation contemplated by Class D2(e). The reasoning in Millington v Secretary of State for Environment, Transport and Regions and Shrewsbury v Atcham Borough Council supported that contextual approach.
6. Lord Justice Longmore added that, in a case of genuine doubt, the statutory exception in section 55(2)(f) would place the burden on a landowner seeking to rely on the Use Classes Order. That observation was unnecessary because the proposed use plainly failed to satisfy the Order. Lord Justice Ferris agreed with both judgments.

• Court of Appeal (Civil Division): appeal from the judgment of Ouseley J was dismissed. The court upheld the inspector’s decision concerning the proposed concert use.
• Administrative Court, Queen’s Bench Division: Ouseley J upheld the Secretary of State’s appointed person’s decision dismissing the planning appeal.