R (oao Hourhope Ltd) v Shropshire Council

For the Community Infrastructure Levy demolition deduction, a building must have been in actual lawful use during the prescribed period. It is insufficient that the building had an authorised use which could theoretically be resumed.

Whether a building is in use depends on all the circumstances, including the activities taking place, the duration and reasons for any interruption, and the intentions of those involved. Items left after a business has ceased may constitute storage only where the facts support that characterisation; abandoned items do not establish continued use. Legitimate expectation cannot require a public authority to act unlawfully and requires a clear assurance and reliance.

The claimant developer challenged Shropshire Council’s refusal to amend a Community Infrastructure Levy liability notice concerning residential development on the site of a former public house. The claimant sought a demolition deduction, arguing that the building remained in lawful use because its authorised public-house use had not been abandoned, or because furniture and equipment left on the premises constituted storage.

The claimant also relied on online council guidance and alleged a legitimate expectation that the items would qualify as continued lawful use. The central issues were the meaning of “in lawful use”, whether the evidence established continued use or storage, and whether the guidance constrained the council’s decision.

1. Meaning of “in lawful use”. The amended wording of the Community Infrastructure Levy regulations did not alter the meaning of the requirement. An “in-use building” must be a building actually being used for a lawful planning purpose. It is not enough that a lawful use remains theoretically available because it has not been abandoned.
2. Assessment of use. Whether property is in use requires assessment of all the circumstances, including the activities occurring on the premises and the intentions of the persons using them. The required degree of activity varies with the nature of the use. A temporary interruption may not end an existing use, but the closure of the public house without a fixed or definable reopening date entitled the council to conclude that the use had ended.
3. Items left on the premises. The presence of bar equipment, furniture and other items did not continue the public-house use. Storage ancillary to a public house is part of the overall public-house use, rather than a separate authorised storage use. The council was entitled to regard the items as abandoned, rather than stored, and it would have been unlawful to treat their presence as continued lawful use.
4. Legitimate expectation. The online guidance gave no clear assurance that chattels left after cessation of the main use would qualify as storage. A legitimate expectation could not require the council to act contrary to law. In any event, there was no evidence of reliance causing detriment.
5. The council’s decision was reviewable on ordinary judicial review principles. No error of law, irrelevant consideration, failure to consider relevant matters, or Wednesbury unreasonableness was established. The claim was dismissed.