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

A certificate of lawful proposed use or development under the Town and Country Planning Act 1990, section 192 is a statutory certification, not a grant of planning permission. The application and certificate must identify the land and proposed use, state why the use is lawful, and comply with the prescribed form, or a substantially similar form, under the Town and Country Planning (General Development Procedure) Order 1995.

Those requirements are mandatory. A document describing itself as permission for development, omitting the proposed use and reasons, and materially departing from the prescribed form has no status as a section 192 certificate. Context, extrinsic evidence and the authority’s intentions cannot cure the defect. The statutory conclusive presumption of lawfulness therefore does not arise.

The dispute concerned an enforcement notice relating to mixed uses at former railway premises. The local authority issued a document dated 19 November 2001 addressing whether a 1965 planning permission was personal to the Bristol Avon River Board and whether its use fell within current Use Class B8. The Inspector held that the document was not a lawful development certificate under section 192 and found that the permitted storage use had been abandoned by 2000.

Wilkie J allowed the appeal to the High Court on the certificate issue, but upheld the finding of abandonment and remitted the matter to the Inspector. The Court of Appeal considered whether the document could be treated, in context, as a valid certificate under section 192 despite its wording and its failure to comply with statutory content and form requirements. The central issue was whether those defects affected its legal status.

Lord Justice Ward delivered the judgment. Lord Justices Wall and Richards agreed. The appeal was allowed and the Inspector’s decision restored, including the conclusions that the November 2001 document was not a certificate under section 192 and that the relevant storage use had been abandoned.

1. Statutory character. Section 192 of the Town and Country Planning Act 1990 establishes a procedure for certifying whether a specified proposed use or operation would be lawful if begun at the application date. It does not confer planning permission. The legal status of the document depended on compliance with the statutory scheme.
2. Mandatory content and form. Section 192(2) required the authority to be satisfied that the described use or operations would be lawful. Section 192(3) required the certificate to specify the land, describe the use or operations, give reasons for the decision and specify the application date. Article 24(11) of the Town and Country Planning (General Development Procedure) Order 1995 required the prescribed Schedule 4 form, or a form substantially to the same effect.
3. The document was expressly described as permission for development. It did not clearly describe the proposed use or give reasons for determining it lawful. It was materially different from the prescribed form. Partial compliance concerning the land and date did not cure the defects. The statutory requirements could not be rescued by the authority’s intentions or by examining the surrounding correspondence and file.
4. Construction authorities. The principles concerning contextual correction of errors in contractual or statutory notices, illustrated by [1997] A.C. 749 and the other authorities cited, did not apply. This was a question of whether the document had statutory status, not of construing ambiguous words. A public certificate affecting public interests required the precision prescribed by statute. The approach in R (Reprotech Ltd) v East Sussex CC [2002] UKHL 8 supported that conclusion.
5. The conclusive presumption under section 192(4) could arise only from a valid certificate. The defective document therefore had no such statutory effect.

1. Court of Appeal (Civil Division) — On 26 October 2006, the appeal was allowed and the Inspector’s decision restored: [2006] EWCA Civ 1387.
2. Queen’s Bench Division, Administrative Court — Wilkie J allowed the appeal on 30 November 2005 in relation to the validity of the document, upheld the finding of abandonment, and remitted the matter to the Inspector.
3. Planning Inspector — By decision dated 4 April 2005, the Inspector held that the document was not a lawful development certificate under section 192 and that the relevant storage use had been abandoned.