Flint & Anor, R (On the Application Of) v South Gloucestershire Council

In determining an application for a lawful development certificate, the planning authority must identify the lawful use and the land to which it relates by reference to the evidence over the relevant period. The identification of a planning unit is a question of fact and degree involving planning judgment. There is no universal requirement to include every possible detail of the use in the certificate. The appropriate level of particularity depends on the evidence and circumstances. A certificate may describe a use generally where that description is sufficiently clear and precise. A court should interfere only where the authority’s decision is irrational or otherwise unlawful.

The claimants challenged the defendant local planning authority’s decision under section 191 of the Town and Country Planning Act 1990 to issue a lawful development certificate for the existing use of land and buildings as a shooting school. The certificate covered the land shown on the application plan and recorded breaches of conditions concerning operating hours and the number of persons receiving instruction.

The claim alleged that the authority had adopted the wrong approach to the planning unit and had failed to describe the use with sufficient precision, particularly as to numbers of participants, shooting days and cartridge type. The central issues were whether the land formed a single planning unit and whether the certificate was unlawfully insufficiently particularised.

1. Claim dismissed. The authority had lawfully concluded that the land edged red on the application plan formed a single planning unit. The relevant principles, summarised in Burdle v Secretary of State for the Environment [1972] 1 WLR 1207, require consideration of whether the land has one main purpose with ancillary activities or consists of physically separate areas used for substantially different and unrelated purposes. The issue is one of fact and degree.
2. The officer had considered the evidence over the whole ten-year period, including the layout of the traps, witness evidence, newsletters and a DVD. He was entitled to conclude that shooting positions in the woodland directed fire over the field and that there was no significant functional or physical separation across the site. That conclusion involved planning judgment and was not irrational.
3. Precision in a lawful development certificate is important, but the law does not require the same degree of particularisation in every case. The appropriate detail is a matter for the decision maker based on the evidence. The certificate precisely identified the land by reference to the site plan and adequately described the use as a shooting school. The omission of an express reference to Planning Practice Guidance did not invalidate the decision.
4. The evidence justified the conclusion that the condition limiting instruction to two people had been breached continuously for ten years. It did not, however, require the certificate to specify maximum participant numbers or cartridge type. The different treatment of operating hours was rational because the evidence on hours was clearer and showed a distinct risk of intensification.
5. The certificate recorded the use found to have existed during the relevant period. It did not prevent the authority from taking enforcement action if later conduct amounted to a material change of use through intensification, consistently with the principle stated in R v Thanet District Council ex p Tapp [2001] EWCA Civ 559.