Bramall v Secretary of State for Communities and Local Government & Anor

A right to resume a previous lawful use after expiry of a time-limited planning permission need not be exercised immediately. However, the statutory wording requires a temporal relationship between the ending of the authorised use and the resumption of the former use. A substantial unexplained delay may result in loss of the right.

Abandonment is assessed objectively by reference to the view of a reasonable person with knowledge of all relevant circumstances. The owner’s subjective intention is relevant, but cannot determine the issue. Relevant factors include any intervening use, the physical condition of the property, the period of non-use and the owners’ intentions. The decision-maker determines the weight of those factors.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 an Inspector’s dismissal of his appeal against refusal of a lawful development certificate.

The property had originally been used as a dwelling. A time-limited planning permission authorised its use as a poultry house until 30 September 1961. The property then remained unused. Applications for residential redevelopment were made at various times, but the cottage was never restored to residential use.

The central issues were whether the claimant retained a statutory right to resume the former dwelling use and whether that right had been abandoned.

1. The appeal was dismissed. The Inspector had committed no error of law warranting the quashing of his decision.
2. Section 57(2) of the Town and Country Planning Act 1990 does not necessarily require resumption of the former normal use immediately after expiry of the time-limited permission. Nevertheless, its language implies a relationship in time between the ending of one use and the commencement of the other. A sufficiently long period may mean that the statutory right is lost, particularly where the delay is unexplained. There must ultimately be a point at which the resumed use cannot properly be said to have occurred at the end of the authorised period.
3. The court proceeded on the assumption, adopted by both parties, that the principles of abandonment applied to the right to resume. Under Hartley v Minister of Housing and Local Government [1970] 1QB 413 a lawful use may be abandoned. The applicable approach, stated in Hughes v Secretary of State for the Environment, Transport & Regions [2000] ATP & CR 397, was objective: the decision-maker must assess the view of a reasonable person possessing knowledge of all relevant circumstances.
4. The relevant circumstances included any subsequent use, the physical condition of the property, the length of non-use and the owners’ intentions. Reasons explaining the failure to resume use had to be considered, but they could not elevate subjective intention above its proper evidential significance. The weight given to each factor was for the decision-maker, consistently with The Trustees of the Castell-y-Mynach Estates v Secretary of State for Wales and another [1985] JPL 40.
5. The Inspector was entitled to find that the 1969 planning determination and its later communication deterred the owners from resuming residential use, but to attach little weight to that explanation when assessing abandonment after 1973. The subsequent applications indicated, at most, an intermittent intention to obtain permission for a replacement dwelling, rather than an unambiguous intention to resume use of the existing cottage.
6. The Inspector was also entitled to decline to determine definitively whether the 1969 decision was legally correct because material documents were unavailable. Expenditure incurred before 1973 was peripheral to the issue of abandonment after that date and did not require express treatment in the decision letter.

The claimant was ordered to pay the First Respondent’s costs.

The judgment does not state a prior appellate decision. The claim was an appeal under section 288 of the Town and Country Planning Act 1990 against the Inspector’s decision dated 27 July 2010.