Stockton On Tees v Secretary of State for Community and Local Government

A valid planning permission which has been implemented is not extinguished merely because the permitted use later ceases. Under Town and Country Planning Act 1990, s 75, planning permission ordinarily continues to benefit the land unless legislation, the permission’s terms, or exceptional circumstances make it incapable of implementation. The distinction between an abandoned established use and an extant planning permission remains important. A change-of-use permission is not treated as spent solely because the change has occurred and the use has subsequently stopped. Fresh permission is therefore unnecessary where the owner seeks to resume the originally permitted use, provided no different lawful use or other circumstance has displaced the permission.

The claimant local planning authority brought a statutory appeal under s 288 of the Town and Country Planning Act 1990 against a planning inspector’s decision dated 27 July 2009. The inspector had granted a certificate of lawful use for the resumption of a caravan-site use previously authorised by a 1961 planning permission.

The site had ceased to operate as a caravan park for several years, and its structures had disappeared or fallen into dereliction. It had not been put to another use, and the permission had not been revoked or superseded. The central issue was whether the original permission had become spent or incapable of implementation through the cessation of the permitted use, so that fresh planning permission was required.

1. The appeal was dismissed. The planning inspector had correctly concluded that the 1961 permission remained effective and that the permitted caravan-site use could be resumed without a fresh planning application.
2. Section 75 of the Town and Country Planning Act 1990 provides that, subject to statutory provisions concerning duration, revocation and modification, planning permission inures for the benefit of the land and persons interested in it. The governing principle from Pioneer Aggregates (UK) Limited v the Secretary of State for the Environment and Others [1985] AC 132 is that a valid permission capable of implementation according to its terms cannot be abandoned merely by conduct or non-use.
3. The exceptional circumstances identified in Pioneer Aggregates concern practical incapability of implementation, such as mutually inconsistent permissions where later development makes the earlier permission impossible to carry out. They do not include the mere cessation of a use authorised by an extant permission.
4. The court distinguished an established use which has become lawful through immunity from enforcement. Such a use may be capable of abandonment, but it is not equivalent to a use authorised by planning permission. The distinction recognised in R (Fairstate Ltd) v First Secretary of State and another [2004] EWHC 1807 (Admin) was material.
5. Cynon Valley BC v The Secretary of State for Wales [1986] JPL 760 concerned different circumstances and did not establish that every change-of-use permission becomes spent when the authorised use later ceases. The observations in James Hay Pension Trustees Ltd v The First Secretary of State and Others [2005] EWHC 2713 (Admin) were obiter and could not readily be reconciled with Pioneer Aggregates.
6. Costs were assessed at £8,331. Permission to appeal was granted because the issue was arguable and of general importance.

The matter came before the High Court as a statutory appeal under s 288 of the Town and Country Planning Act 1990 from a planning inspector’s decision dated 27 July 2009. The appeal was dismissed, and permission to appeal was granted.