Sellars, R (on the application of) v Basingstoke & Deane Borough Council

When determining an application for a certificate of lawful existing use under the Town and Country Planning Act 1990, the planning authority must identify the appropriate planning unit. It must consider whether the relevant use, assessed across that unit, has become immune from enforcement. The authority cannot confine the inquiry to the area shown in the application if the planning unit may be larger or smaller. A longstanding use may be superseded by a mixed use or a materially intensified use, so that the earlier use has not continued unchanged for the statutory period. Intensification is material only where it changes the definable character of the use. The court may quash a decision affected by legal error, but should withhold relief where the outcome would inevitably be the same.

The claimant sought judicial review of the defendant local planning authority’s decision to issue a certificate under section 191 of the Town and Country Planning Act 1990. The certificate authorised the use of a specified area for flying up to five powered model aircraft at stated times. The claimant challenged the authority’s approach to the planning unit, alleged intensification of the use, and its assessment of continuity during the 2001 foot and mouth restrictions.

The central issues were whether the authority was entitled to consider only the red-line area, whether the evidence disclosed a material change of use through mixed use or intensification, and whether the authority had lawfully assessed the relevant ten-year period.

1. Ground 1 allowed. The claim succeeded because the authority failed to identify and consider the appropriate planning unit. The concept is judge-made, but remains an essential part of planning-law inquiries. Under section 191, the authority must determine whether the existing use is lawful because enforcement action may no longer be taken, not merely whether an activity has continued on the specified land for ten years.
2. The hypothetical enforcement process must therefore be considered. That process begins by identifying the planning unit, then asks whether there has been a material change of use within it and whether the relevant use has continued for the statutory period. The planning unit may be larger or smaller than the land described in the application. The authority’s decision to confine consideration to the red-line area was an error of law.
3. Ten years’ use for activity A does not establish immunity if, within the same planning unit, the use has changed to a mixed use comprising A and B, or has materially intensified. The earlier use is then superseded by the new use, which must itself have continued for ten years. The principles stated in D. Beach v Secretary of State for the Environment, Transport and the Regions [2001] EWHC 381 (Admin) and Lynch v Secretary of State for the Environment [1999] JPL 354 were applied.
4. Ground 2 failed. Intensification may amount to a material change of use only where it changes the definable character of the use of the land. Its assessment is a matter of planning judgment, applying Hertfordshire County Council v Secretary of State for Communities and Local Government [2012] EWCA Civ 1473. The evidence was insufficient to establish such a change, and the authority’s conclusion was lawful.
5. Ground 3 failed. The authority was entitled to reach its factual conclusion about activity during the foot and mouth restrictions. If the application were remade, the relevant period would remain the ten years preceding the original application date, not the date of the later decision.
6. The certificate was quashed and the application remitted to the defendant for a lawful decision.

First-instance judicial review. The claim succeeded on the planning-unit ground and failed on the intensification and foot-and-mouth grounds. The certificate was quashed and the application remitted to the defendant.