Stone & Anor v Secretary of State for Communities And Local Government & Anor

A lawful planning use may be extinguished where subsequent development creates a new planning unit and materially changes the use of the land. Whether a new planning unit exists is a question of fact and degree. The ordinary starting point is the whole unit of occupation, unless a physically and functionally separate use can be identified. Section 57(4) of the Town and Country Planning Act 1990 preserves only a lawful use of the land subject to the enforcement notice, as that land could lawfully have been used immediately before the enforced development. It did not preserve a use authorised for a different, smaller planning unit.

The appellants challenged an inspector’s decision dismissing their appeal against an enforcement notice issued by Cornwall Council concerning vehicle storage, vehicle processing and caravan storage at land near St Day, Cornwall. The inspector had corrected the notice to exclude the dwelling Cassita and its residual residential curtilage, but treated the remaining land as a single planning unit incorporating areas A, B, C and part of area D.

The appellants argued that compliance with an earlier enforcement notice had generated planning permission under sections 173(11) and 73A of the Town and Country Planning Act 1990, and that the permission continued to authorise residential use and storage of non-scrap vehicles. They also relied on section 57(4). The central issues were whether the inspector adequately explained the loss of that use and whether section 57(4) preserved it.

1. Appeal dismissed. The inspector was entitled to find that, after compliance with the earlier enforcement notice, the site contained two new planning units: Cassita with its residual residential curtilage, and the remaining land comprising areas A, B, C and part of D.
2. The identification of a planning unit is principally a question of fact and degree. The approach in Burdle v Secretary of State for the Environment [1972] 1 WLR 1207 remained binding. The whole unit of occupation is ordinarily considered where there is a single main purpose with ancillary activities, or a composite use without separate physical areas. Separate planning units may arise where physically distinct areas are used for substantially different and unrelated purposes.
3. A lawful use authorised by planning permission can nevertheless be extinguished by the creation of a new planning unit involving a material change of use. The inspector’s findings that the residential use had become a separate unit, while the rear of Cassita had been absorbed into the larger commercial vehicle-storage unit, were open to him on the evidence. The reasoning in the decision letter adequately explained that conclusion.
4. Section 57(4) of the Town and Country Planning Act 1990 did not assist the appellants. The provision concerns the land subject to the enforcement notice and the use for which that land could lawfully have been used immediately before the enforced development. The 2009 permission related to the whole of area D and depended on its mixed residential and vehicle-storage planning unit. The 2012 notice covered a different and larger planning unit, including areas A, B and C. The permission was therefore not referable to the land covered by the later notice.
5. The court observed that, had section 57(4) applied, the notice would probably have been interpreted as preserving any rights arising under it without amendment, consistently with Mansi v Elstree Rural District Council (1965) 16 P&CR 153. That observation was academic. The appeal was dismissed.

The judgment does not state a prior court decision in the same proceedings. The appeal was brought to the Administrative Court from an inspector’s decision dated 6 December 2012, which had dismissed the appellants’ appeal against the enforcement notice, subject to correction and variation of the notice.