Childs, R (on the application of) v First Secretary of State & Anor

A certificate of lawful existing use may describe a recognised use outside the use classes by reference to its intensity. Where the certificate specifies a number of caravans, an increase in that number is capable of being a change of use and may be material. Materiality is a question of fact and degree, assessed by considering the change in the character of the use and its planning consequences, including appearance, activity, traffic and effects on surrounding amenity. The result differs where the certificate is silent as to intensity: a substantial increase may then involve no change of use. A certificate covering the whole site and specifying four caravans therefore provided a valid reference point for assessing a proposed use involving eight or more caravans.

The claimant sought judicial review under section 288 of the Town and Country Planning Act 1990 of an inspector’s decision dismissing four appeals. The appeals concerned refusals by Test Valley Borough Council to issue certificates under section 192 for proposed residential caravan-site uses involving eight, 15, 30 and 50 caravans.

The site had previously been certified under section 191 as a residential caravan site for four caravans. The inspector considered that increasing the number to eight or more would materially change the character of the use. The central issue was whether an increase in the number of caravans could constitute a change of use where the existing certificate specified the number.

1. The application was refused. The inspector had not erred in law in dismissing the appeals and the claimant’s challenge failed.
2. Under section 191 of the Town and Country Planning Act 1990, a planning authority is entitled, though not obliged, to describe a recognised use outside the use classes by reference to its intensity. The 2003 certificate lawfully certified the whole field for use as a residential caravan site for four caravans.
3. Under section 192, the lawfulness of a proposed use requires comparison with the existing use. Where the existing use is validly expressed by reference to intensity, a materially more intensive proposed use can constitute a change of use. Whether the change is material is a question of fact and degree.
4. The inspector was entitled to consider the change in the character of the use in planning terms, including the site’s appearance in the landscape, activity on the site, vehicular movements and effects on immediately surrounding roads and amenity. Four caravans appeared as a discreet, minimally used field, whereas eight would appear as a developed residential caravan site. That supported the finding of material change.
5. The position would potentially differ if the certificate had been silent as to numbers. In that event, the certified use might have applied without limit as to intensity, so an increase might involve no change of use.
6. A collateral challenge to the 2003 certificate could not be mounted in these proceedings under section 284(1)(f) and (3)(g) of the Town and Country Planning Act 1990. In any event, the challenge would have failed because it was not inappropriate to define the use by reference to four caravans. The court distinguished R v Wicks [1998] AC 92.
7. The claimant was ordered to pay the Secretary of State’s costs, subject to detailed assessment if not agreed. Permission to appeal was granted because the point of law was important and conflicting dicta existed.

The inspector dismissed the claimant’s four appeals against refusals by Test Valley Borough Council. The Administrative Court refused the resulting section 288 challenge.