James Hay Pension Trustees Ltd v First Secretary of State & Ors

A document may operate as a certificate of lawful proposed use under section 192 of the Town and Country Planning Act 1990 despite errors or non-compliance with the prescribed form, if its context makes the intended grant sufficiently clear to a reasonable recipient. The court may consider the application, correspondence and decision documents where the document is ambiguous. A certificate in force conclusively presumes the lawfulness of the certified use.

A planning permission for a material change of use may be abandoned after the authorised change has been implemented. Whether abandonment occurred is an objective question, assessed by considering all relevant circumstances. Identified factors are guides, not mandatory requirements in every case.

The claimant appealed under section 289 of the Town and Country Planning Act 1990 against an Inspector’s dismissal of its appeal from an enforcement notice issued by South Gloucestershire Council. The notice alleged unauthorised mixed uses, including vehicle servicing, a motor vehicle hire base, a builders’ yard and storage.

The appeal challenged the Inspector’s conclusions that a Council document dated 19 November 2001 was not a certificate under section 192, that a 1965 planning permission for a garage and store had been abandoned, and that the Inspector had consequently applied the wrong approach to the green-belt planning issue. The central questions were whether the document had statutory effect and whether the permission could legally be abandoned by non-use.

1. Appeal allowed and matter remitted. The Inspector’s decision was wrong in law on the certificate issue. The parties agreed that this required remission to the Secretary of State for further consideration.
2. The Council’s application material showed that it understood the claimant to seek a certificate of lawful proposed use under section 192 of the Town and Country Planning Act 1990. The document of 19 November 2001 was poorly headed and did not comply strictly with section 192(3) or paragraph 24(11) of the General Development Procedure Order 1995. It did, however, identify the land, refer to the 1964 permission, clarify that the permission was not personal to the Bristol Avon River Board, and update the relevant use-class reference.
3. Applying the approach in York and Ross v Casey and Casey and Mannai Investment Company Ltd v Eagle Star Life Insurance Company Ltd, the document had to be read in context. The application, correspondence and officers’ report established what was sought and what was intended to be granted. The document was therefore substantially to the like effect as the prescribed certificate. The statutory presumption in section 192(4) applied.
4. The abandonment issue therefore fell away. Nevertheless, the court held that a valid permission for a material change of use may be abandoned once the authorised change has been completed. The general principle in Pioneer Aggregates UK Ltd v SOSE did not prevent that conclusion, having regard to the distinction between continuing operational development and a completed change of use, as explained through Young v SSFE and Cynon Valley BC v Secretary of State for Wales and Another.
5. The Inspector had correctly identified the objective abandonment approach and the relevant considerations, including physical condition, length of non-use, intervening use and the owner’s intentions. Those matters were not mandatory factors in every case. His conclusion that abandonment had occurred was open to him and was not perverse.

The matter was remitted to the Secretary of State for rehearing and redetermination in accordance with the court’s conclusions.

This was a statutory appeal to the High Court under section 289 of the Town and Country Planning Act 1990 from the First Secretary of State’s decision, acting through an Inspector, dated 4 April 2005. The Inspector had dismissed the claimant’s appeal against South Gloucestershire Council’s enforcement notice, subject only to extending the compliance period from two to six months.