Sumner, R (on the application of) v Secretary of State for Communities & Local Government

Immunity from enforcement for operational development does not, by itself, make the building’s intended use lawful. The statutory time limits distinguish operational development from a material change of use, and each must be considered separately. A building may therefore be immune from enforcement while its use remains unauthorised and subject to the longer limitation period. A certificate under section 191 of the Town and Country Planning Act 1990 is not a planning permission, and section 75 cannot supply the benefits of a planning permission where none exists. The intended purpose of a building is not ordinarily ancillary to its construction, although particular works may be ancillary to a use. Any subsequent planning application must be determined on its own facts and planning merits.

The claimant challenged an inspector’s decision upholding an enforcement notice concerning buildings at Southside Farm, used for vehicle repairs. The inspector found that the buildings themselves were immune from enforcement because the operational development had been completed more than four years earlier. He nevertheless found that the vehicle-repair use had not continued for ten years and was not ancillary to any lawful use of the land.

The claimant argued that the intended vehicle-repair use formed part of, or was ancillary to, the construction of the buildings and therefore benefited from the four-year limitation period. Alternatively, he argued that the effect of sections 191 and 75 of the Town and Country Planning Act 1990 was equivalent to a grant of planning permission.

1. The appeal was dismissed. The enforcement notice was upheld, with costs of £9,168 payable to the Secretary of State.
2. Section 171B of the Town and Country Planning Act 1990 deliberately distinguishes operational development from a change of use. The four-year period applies to unauthorised building, engineering, mining or other operations. A change of use, other than use as a single dwelling house, attracts the ten-year period.
3. The intended use of a building is not, merely because it was intended when the building was constructed, ancillary to the operational development. Construction and change of use are separate planning matters. Works may in an appropriate case be ancillary to a use, such as installing a staircase to facilitate office use, but that principle did not make the vehicle-repair use ancillary to construction.
4. A building becoming immune from enforcement does not confer immunity on an unauthorised use. Nor does it place the owner in the same position as if planning permission had been granted. On the inspector’s findings, the building could lawfully be used only for uses ancillary to the lawful uses of the land, not for vehicle repairs.
5. Section 191 concerns the effect of an existing certificate of lawful use or development. It does not determine whether a use is immune from enforcement under section 171B. Section 191(6) gives conclusive effect to a certificate, while section 191(2)(b) prevents certification of a matter contravening an enforcement notice. Section 191 is not a planning permission: section 336 excludes it from the statutory definition of planning permission, and the word “also” in section 191(7) refers to additional effects outside the Act.
6. Section 75 applies where planning permission has been granted. It could not be used to write into the Act the consequences of a permission or certificate that did not exist. The Court of Appeal’s decision in Welwyn Hatfield Council v Secretary of State for Communities and Local Government left the relationship between operational development and use undecided; that issue was decided here against the claimant’s construction.
7. The possibility that an immune building may remain unused did not justify that construction. A later planning application could be considered on its facts, including whether exceptional circumstances warranted permission, but that was not a reason to treat the unauthorised use as lawful.

This was a statutory appeal to the Administrative Court against an inspector’s decision dated 17 July 2008. No citation for the inspector’s decision was stated in the judgment. The court dismissed the appeal and ordered costs of £9,168.