Freedman, R (On the Application Of) v Wiltshire Council

Under section 191(4) of the Town and Country Planning Act 1990, a local planning authority may modify or substitute the description of an existing use in an application for a certificate of lawfulness. The authority must, however, be satisfied on the balance of probabilities that the use described in the substituted certificate has continued for at least ten years. Periods during which land was used for a narrower ancillary purpose cannot be aggregated with periods of use for a wider, unrestricted purpose. A certificate cannot lawfully authorise the wider use unless that use itself has been established for the statutory period.

Mr Crocker applied for a certificate under section 191 of the Town and Country Planning Act 1990 concerning the Old Workshop at Home Farm Business Centre and adjoining land. He sought certification of office use and ancillary vehicular parking, said to have continued for at least ten years.

Wiltshire Council rejected certification of the office use but granted a certificate for unrestricted vehicular parking on the adjoining land. Mr Freedman, a local resident, sought judicial review. The central issues were whether the Council could substitute unrestricted parking for ancillary parking and, if so, whether it had properly assessed the ten-year continuity requirement.

1. The claim succeeded and the certificate of lawful use granted on 30 July 2013 was quashed.
2. Section 191(4) of the Town and Country Planning Act 1990 permits a local planning authority, in an appropriate case, to modify the description of the use in an application or substitute a different description. The power is broad enough to permit substitution of unrestricted vehicular parking for ancillary vehicular parking.
3. The power is subject to a distinct evidential requirement. The authority must be satisfied, on the balance of probabilities, that the use described in the substituted certificate has been carried on continuously for at least ten years. The authority cannot certify a wider use merely because some narrower use has continued for the required period.
4. The Council had treated periods of ancillary parking, meaning parking connected with and ancillary to the use of the Old Workshop, as capable of being aggregated with periods of general vehicular parking. That was legally incorrect. The two uses were materially different: unrestricted parking could be used by any person, whereas ancillary parking was limited by its connection with the Old Workshop.
5. The Council had therefore failed to decide whether unrestricted vehicular parking had itself continued for ten years or more. The court declined to determine the factual merits of that question before the Council had carried out the required assessment. The matter was left for the Council to decide whether to refuse the application or to modify or substitute the description if the evidence satisfied the statutory test.