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

For a certificate of lawfulness under section 192 of the Town and Country Planning Act 1990, the relevant comparison is between the actual existing use and the proposed use. A court must not insert a notional intermediate use merely because that use could lawfully be resumed without further planning permission. Permitted development rights under Part 3, Class A of the Town and Country Planning (General Permitted Development) Order 1995 apply only where the proposed A1 use is changing from an existing or last use within Class A4. A historic A4 use, preserved as resumable by section 57(4), does not amount to an existing A4 use for that purpose.

The claimants sought an order under section 288 of the Town and Country Planning Act 1990 quashing an Inspector’s decision dated 27 August 2015. The Inspector had dismissed an appeal under section 195 concerning the refusal by Cherwell District Council to issue a certificate under section 192.

The certificate was sought for a change from Class A4 public-house use to Class A1 retail use under Part 3 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995. The property had previously been a public house, but its last use was an unauthorised mixture of A1 retail and residential use. The central issue was whether the earlier A4 use, which could be resumed under section 57(4), was sufficient to engage the permitted development right.

1. The claim was dismissed. The Inspector had correctly refused the certificate of lawfulness.
2. Section 192 of the Town and Country Planning Act 1990 requires consideration of whether the proposed use would be lawful if instituted at the date of the application. The comparison is between the present use and the proposed use. A notional use which could lawfully be introduced first is not relevant to that exercise. This was the principle applied in Secretary of State for Transport v Waltham Forest LBC [2002] EWCA Civ 330.
3. Article 3(5) and Part 3, Class A of the Town and Country Planning (General Permitted Development) Order 1995 concern a change from an existing use. Class A permits a change to A1 from a use falling within A3, A4 or A5. The relevant existing or last use here was the mixed A1 and residential use, not the historic A4 public-house use.
4. Section 57(4) preserved the ability to revert to the former public-house use without obtaining planning permission. It did not convert that historic use into an existing A4 use or create a permitted development right for the proposed A1 change.
5. The Inspector’s reference to the 2015 Order rather than the 1995 Order was an error, but the parties agreed that it made no difference because the relevant provisions had identical effect. The claimants remained free to apply for express planning permission.

The claim was brought in the Administrative Court under section 288 of the Town and Country Planning Act 1990 to challenge the Planning Inspector’s decision of 27 August 2015, which had dismissed an appeal under section 195 concerning a certificate of lawfulness application.