Titchfield Festival Theatre Limited v Secretary of State for Housing, Communities, and Local Government & Anor

Accrued lawful planning use rights may be lost where a change in the physical or planning status of a site creates a new planning unit, or opens a new chapter in its planning history, so that the later status is inconsistent with preserving the earlier use. Whether that has occurred is a matter of fact and degree. The principle is not confined to changes authorised by planning permission.

Under section 57(4) of the Town and Country Planning Act 1990, the land which may revert to its previous lawful use is the land to which the enforcement notice relates. The provision does not permit part of that land to revert by relying on a lawful use attaching to a different planning unit.

The appellant challenged an inspector’s decision upholding, subject to correction and variation, an enforcement notice concerning an unauthorised theatre use and underground engineering operation at premises comprising Areas B and C.

The appellant relied principally on accrued theatre-use rights associated with Areas A and B. It argued that those rights survived the incorporation of Area C, that section 57(4) permitted Area B to revert to theatre use, and that lesser enforcement steps should have been considered. The appeal was brought under section 289 of the Town and Country Planning Act 1990 on points of law.

1. The appeal was dismissed. No error of law was established in the inspector’s decision.

2. Accrued lawful use rights can be extinguished where a new planning unit is formed or a new chapter in the planning history is opened. The decision-maker must determine, as a matter of fact and degree, whether the alteration is sufficiently substantial that the resulting planning status is inconsistent with preservation of the prior use. The principle applies whether or not the change was authorised by planning permission. The expressions “new planning unit” and “new chapter in the planning history” are used interchangeably.

3. The inspector had applied the correct test. She was entitled to find that Areas B and C had been amalgamated into a new planning unit containing a substantially larger theatre, with Area C previously used for a separate storage purpose. The resulting changes in traffic, noise and parking, together with the physical and functional integration of the areas, supported the conclusion that the character of the use had materially changed. Her reasons were intelligible and adequate.

4. The inspector was not required to consider quantified impacts from the former storage use of Area C when those details had not been placed before her and were not so obviously material that she had to consider them without being referred to them.

5. Section 57(4) creates a practical exception to the need for planning permission. It applies to the land identified in the enforcement notice. It did not permit Area B to revert to theatre use by relying on lawful-use rights attached to the former Areas A and B planning unit, because that unit had ceased to exist.

6. The Mansi principle remained applicable: enforcement action cannot remove an established lawful use. But where that use has already been lost through the creation of a new planning unit, there is no established lawful use to preserve. The inspector therefore correctly rejected the proposed lesser steps. The late witness statement was admitted, but the court declined to determine hypothetical merits concerning enforcement against a breach of condition because no ground of challenge succeeded.

High Court (Administrative Court): Appeal under section 289 of the Town and Country Planning Act 1990 dismissed. The inspector’s decision was upheld, subject to the corrections and variation already made by the inspector.