Newland v Secretary of State for Communities & Local Government & Anor

The identification of a planning unit is a question of fact and degree for the primary decision-maker. A site may remain one planning unit where land surrounding a dwelling is physically and functionally ancillary to it, even if that land is more extensive than the dwelling’s curtilage. Once a former caravan has lawfully become a dwelling house, the ancillary use of land within the same planning unit may acquire the same four-year enforcement protection. Section 57(4) permits resumption only of the lawful use immediately preceding the development subject to enforcement. It does not permit an owner to leapfrog over an intervening lawful use and revive an earlier use. An inspector’s planning judgment will be quashed only on a recognised legal error or where the conclusion is irrational.

The claimant challenged, under sections 288 and 289 of the Town and Country Planning Act 1990, the Secretary of State’s dismissal of appeals concerning enforcement notices and a refusal of planning permission. The site had originally been authorised for one residential caravan. Following substantial alterations, the Inspector found that the caravan had become a dwelling house and that the site thereafter comprised one planning unit consisting of the dwelling house with ancillary garden and paddock.

The claimant argued that the wider site remained authorised as a caravan site, or alternatively that its use had not acquired immunity because the ten-year enforcement period applied outside the dwelling house. He also argued that the Inspector had failed to assess separately the operational development covered by the second enforcement notice. The central issues were the correct identification of the planning unit, the operation of the four- and ten-year enforcement periods, the scope of section 57(4), and the adequacy of the Inspector’s reasons.

1. The applications and appeal were dismissed. The Inspector had not erred in law, acted irrationally, or failed adequately to consider the relevant development.
2. The identification of the planning unit was a matter of fact and degree for the Inspector. Applying Burdle v Secretary of State for the Environment [1972] 1 WLR 1207, the appropriate starting point was the unit of occupation, unless a smaller area could be identified as physically and functionally subject to a separate use. The Inspector had considered the relevant approach and was entitled to find that the site remained a single planning unit after 1999.
3. The Inspector’s findings supported an element of continuity but also established a change in the main use. Before 1999 the wider land was used in conjunction with the caravan. After 1999 it was used as a garden and paddock ancillary to the dwelling house. The distinction between curtilage and planning unit did not prevent ancillary land from being treated as part of the change of use affecting the dwelling house. Once the dwelling-house use became lawful under sections 171B(2) and 191(2) of the Town and Country Planning Act 1990, the ancillary use within the same planning unit was likewise lawful.
4. Section 57(4) did not permit a return to the caravan-site use. It permitted resumption only of the lawful use immediately before the development specified in the enforcement notice. The intervening use as a garden and paddock ancillary to the dwelling house had supplanted the earlier caravan-site use, and the 1986 permission was spent. Section 57(4) could not be used to leapfrog over that intervening use.
5. The challenge to the second enforcement notice also failed. On a straightforward reading of the Inspector’s decision as a whole, he had considered the operational development under that notice and found it harmful in planning terms. An Inspector need not analyse every component separately where the papers disclose that the principal issues were understood and addressed. The notice and the deemed planning application were therefore properly dismissed.

Inspector: On 12 October 2006 the Secretary of State’s Inspector dismissed the appeals against the enforcement notices and the refusal of planning permission.

High Court (Administrative Court): The statutory challenge under sections 288 and 289 of the Town and Country Planning Act 1990, and the related appeal, were dismissed.