M & M (Land) Ltd v Secretary of State for Communities & Local Government & Anor

A challenge under section 288 of the Town and Country Planning Act 1990 is confined to legal error, including irrationality or perversity. It is not an opportunity to re-argue planning merits or factual findings. A lawful use may be abandoned where the circumstances objectively show abandonment. The same principle applies to a use certified as lawful under section 191(6). The relevant assessment includes the physical condition of the site, the period of non-use, any intervening use and the owner’s intention. Owner intention is relevant but cannot alone determine the issue. Inspectors’ decision letters should be read as a whole and given a reasonably generous interpretation.

The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s dismissal of a section 78 planning appeal. The appeal concerned permission to erect a building and upgrade hardstanding at a former scrapyard in Hampshire.

The inspector concluded that the scrapyard use, although certified lawful in 1993, had been abandoned after a site clearance and fire in 1995. The claimant argued that section 191(6) prevented abandonment of a certified lawful use and that the inspector’s factual conclusions were perverse. The central issues were the legal effect of the certificate and whether the decision letter disclosed an error of law.

1. The application was dismissed. The challenge under section 288 was limited to legal error. It could include a conclusion that was perverse or unavailable on the facts found, but could not be used to reopen the planning merits or reweigh evidence.
2. The court accepted the objective abandonment approach stated in Hartley [1970] 1 QB 413. Whether a use has been abandoned depends on the circumstances, including the physical condition of the site, the period of non-use, any other use and the owner’s intention. The owner’s intention is relevant but not decisive. These factors were identified in Trustees of the Castell-Y-Mynach v Secretary of State for Wales and Taff Ely Borough Council [1985] JPL 40.
3. Section 191(6) of the Town and Country Planning Act 1990 conclusively presumes the lawfulness of the certified use at the relevant time. It does not give the use a stronger or continuing status than a planning permission. A certified lawful use may therefore be abandoned. The distinction drawn in Pioneer Aggregates [1985] AC 132 concerned a permission that remained capable of implementation through continuing mineral operations. The ordinary single-operation permission, and a certified use of equivalent effect, may be spent and abandoned.
4. The inspector had properly considered the four relevant factors. The evidence supported the conclusion that active scrapyard use had ceased after 1995, and that later visits and clearance did not amount to continuing use as a scrapyard. The absence of relevant licensing steps and the site’s physical condition supported that conclusion.
5. The decision letter had to be read as a whole and with a reasonably generous interpretation, as explained in Newsmith Stainless Ltd [2001] EWHC (Admin) 74. Read in that way, the inspector’s reference to there being no continuing use meant no continuing use of the site as a scrapyard. The decision was neither perverse nor legally unavailable on the evidence.
6. Costs were summarily assessed at £7,176. Leave to appeal was refused by the judge, subject to any application to the Court of Appeal.