Waters, R (On the Application Of) v Breckland District Council

An application for a certificate of lawfulness of operational development under Town and Country Planning Act 1990, section 191, is distinct from an application concerning the use of land. The local planning authority need not determine the lawfulness of the use first. It must, however, consider whether the operations themselves are lawful, including whether they form an integral part of an unauthorised use so that enforcement action may still be taken. That is a fact-sensitive judgment. Authorities concerning removal of operational development as part of enforcement against an unauthorised material change of use do not impose a general preliminary duty to determine the lawfulness of the use. A decision not to take enforcement action is lawful where it is a proper exercise of the statutory discretion, proportionate, and consistent with relevant planning guidance.

The claimant sought judicial review of Breckland District Council’s grant, on 8 July 2015, of a certificate of lawfulness for 44 buildings and structures at a chicken hatchery and animal-feed mill. He also challenged the Council’s stated refusal to take enforcement action concerning alleged unlawful use and operational development. The claimant argued that the Council had to determine the lawfulness of the site’s use before certifying the operations, and had unlawfully failed to address an alleged industrial use or intensification. The Council and interested parties contended that section 191 treated operations and use as distinct matters. The claim was heard in the Administrative Court.

1. Judicial review dismissed. The certificate of lawfulness and the decision not to take enforcement action were lawful.
2. Section 191 of the Town and Country Planning Act 1990 distinguishes between existing use and operations. An applicant may seek a certificate for operations alone. Under section 191(4), the authority must decide the lawfulness of the operations described in the application. It is not required first to determine whether the use of the land is lawful.
3. The authority must nevertheless consider whether the operations are subject to enforcement action. In a case comparable to Murfitt v Secretary of State for the Environment and Somak Travel v Secretary of State for the Environment, it may conclude that operations are not lawful because they are an integral part of an unauthorised use. That is a judgment on the particular facts, not a general requirement to determine the use before granting an operational certificate.
4. The different enforcement periods for operations and use under section 171B were not legally anomalous in a way that assisted the claimant. Welwyn Hatfield BC v Secretary of State for Communities & Local Government concerned deliberate deception and did not support the claimant’s wider submission.
5. The Council had in fact considered the site’s use, environmental effects, noise, transport and residents’ objections, although it made no formal determination of the use’s lawfulness. The evidence showed long-standing use and did not establish a significant recent intensification or material change of use warranting enforcement.
6. The refusal to take enforcement action was a lawful exercise of the discretion under section 172. It was reasonable to await the pending certificate and retrospective planning applications. The claimant’s pleaded application for a mandatory order was abandoned, and an unpleaded declaration was refused as too late.

First-instance judicial review in the High Court (Administrative Court). The judgment records earlier proceedings in which a 2012 certificate was quashed by consent on a limited technical ground, but that decision was not the judgment challenged in this claim.