Searle, R (on the application of) v Secretary of State for the Environment & Anor

In determining the proper planning unit, the court must consider the character of the occupation and the relationship between activities carried on within it. A single unit of occupation is normally the starting point. Separate planning units may nevertheless exist where physically and functionally separate areas are used for substantially different and unrelated purposes. Physical separation does not require a physical barrier. The issue is one of fact and degree. On judicial review, the court must not substitute its own factual assessment for that of the planning inspector. The inspector’s conclusion will stand unless it was irrational or otherwise legally flawed.

The claimant sought, under section 288 of the Town and Country Planning Act 1990, to quash an inspector’s decision upholding the refusal of a certificate of lawful use or development. The certificate was sought to permit the stationing of a residential mobile home on land in Hampshire.

The inspector concluded that the relevant land formed a separate planning unit from adjoining land and that the claimant had not established the requisite lawful residential caravan use. The central issues were whether the inspector had applied the correct test for identifying the planning unit and whether his factual conclusion was legally open to him.

1. Application dismissed. The inspector’s decision was not unlawful and was not shown to be perverse.
2. The correct approach to identifying a planning unit was stated in Burdle v Secretary of State for the Environment [1972] 1 WLR 1207. The unit of occupation is ordinarily the appropriate planning unit. However, within a single occupation, separate planning units may exist where physically separate and distinct areas are used for substantially different and unrelated purposes. The question is one of fact and degree.
3. Physical and functional separation does not require a physical barrier. A barrier may support a finding of separation, but its absence is not decisive. The relevant question is whether the evidence establishes a real physical and functional separation.
4. The inspector was entitled to examine the evidence, including the aerial photographs, statutory declarations and the history of use, and to conclude that the area intended for the caravan was a separate paddock planning unit. The fact that the wider land had previously been rated as one unit did not determine the planning unit for planning purposes.
5. The claimant bore the burden of establishing the relevant lawful use on the balance of probabilities. The inspector had concluded that the evidence of residential caravan use related to adjoining land and did not establish such use on the appeal site. That factual assessment was open to him.
6. The court dismissed the application and summarily assessed the defendants’ costs at £5,906, inclusive of any VAT within that sum.

1. Inspector: dismissed the claimant’s appeal against the local planning authority’s refusal to grant a certificate of lawful use or development.
2. High Court (Administrative Court): dismissed the section 288 challenge to the inspector’s decision: [2006] EWHC 1908 (Admin).