Secretary Of State For Environment & Anor v Thurrock Borough Council

For an unauthorised material change of use to acquire immunity from enforcement after ten years, the relevant use must continue throughout the limitation period. Temporary inactivity does not interrupt continuity where the land remains properly described as being used for the relevant activity. Permanent cessation before immunity accrues cannot be treated as a dormant use continuing in planning law.

A proposed fall-back development is material to a planning decision only if there is a realistic prospect that it would be lawful and carried out. Where permitted development rights depend on a building being required for a purpose incidental to the enjoyment of a dwellinghouse, the decision-maker must address that requirement and explain the evidence supporting the supposed fall-back.

Two enforcement notices were served concerning land used for aviation activities. The first alleged an unauthorised material change from domestic and agricultural use to use as an airfield and for aircraft storage. An inspector allowed the landowner's appeal because commercial aviation use had begun more than ten years earlier and had not been abandoned. Newman J held that the inspector had misapplied the limitation provisions and quashed that decision.

The second notice concerned a hardstanding, concrete base and metal-framed building in the Metropolitan Green Belt. The inspector granted planning permission because, if the building were removed, the landowner might erect a more harmful building under permitted development rights. Newman J also quashed that grant.

The landowner and the Secretary of State appealed. The central issues were whether an unauthorised use had to remain continuous throughout the ten-year enforcement period, and whether the inspector had adequately established and explained the proposed permitted-development fall-back.

1. The four appeals were dismissed unanimously. Schiemann LJ gave the leading judgment. Chadwick LJ agreed and added reasons on the limitation issue. Sir Christopher Staughton agreed.

2. For the change-of-use notice, the inspector applied the wrong legal approach. The relevant question under sections 171B(3) and 174(2)(d) of the Town and Country Planning Act 1990 was whether the use as an airfield and for aircraft storage had continued throughout a defined ten-year period before the enforcement notice. The landowner bore the burden of establishing the facts supporting immunity. The inspector instead presumed that the unauthorised commercial use continued unless the local planning authority proved abandonment.

3. The doctrine of abandonment concerns a use supported by an accrued planning right. It did not create a presumption that an unauthorised use which ceased before immunity accrued remained notionally or dormantly in existence. The decision in Panton and Farmer [1999] JPL 461 concerned an established use and did not support the inspector's approach. Chadwick LJ also declined to follow any suggestion that an enforcement notice could appropriately require the cessation of an inactive use before an accrued planning right had arisen.

4. Temporary inactivity does not necessarily interrupt the limitation period. An enforcement notice may be issued while the relevant activity is temporarily absent because of a weekend, holiday or similar interruption, provided that the land remains properly described as used for that activity. Enforcement action cannot, however, be taken after the new activity has permanently ceased. Whether a borderline period amounts to cessation is a matter of planning judgment.

5. For the building notice, a fall-back development could be a material consideration only if there were a realistic prospect that it would be lawful and carried out. The inspector needed to decide whether a hangar within the relevant limits was required for a purpose incidental to the enjoyment of the dwellinghouse, and whether there was a realistic prospect that it would actually be erected. He did not address the first question expressly or identify adequate evidence and reasoning for either conclusion.

6. The parties were entitled to reasoning expressed with adequate clarity. The inspector's decision letter did not meet that standard. Newman J's orders quashing both decisions were therefore upheld. Permission to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division): The landowner's and Secretary of State's four appeals were dismissed. Newman J's orders quashing the inspector's decisions were upheld.
2. High Court, Administrative Court: Newman J allowed the local planning authority's appeals under sections 288 and 289 of the Town and Country Planning Act 1990. He quashed the inspector's grant of planning permission and the decision quashing the change-of-use enforcement notice.
3. Secretary of State's inspector: The inspector allowed the change-of-use appeal on limitation ground (d), quashed that enforcement notice, and granted planning permission on ground (a) for the building development.