Court of Appeal issues ruling on planning enforcement notices and reversion to prior use

Lord Justice Holgate gave the main judgment in the case brought by Titchfield Festival Theatre against the Secretary of State For Housing, Communities and Local Government and Fareham Borough Council.

Holgate LJ said the main issue was whether s.57(4) only applies where the pre-existing lawful use relates to the same area of land as the subject of the enforcement notice and not to only part of it.

The second main issue was whether a pre-existing use right is lost when the planning unit to which it relates is replaced by a new planning unit, so that the landowner may not rely on s.57(4) of the TCPA 1990.

Titchfield Festival Theatre is in converted light industrial buildings comprising units named A, B and C.

Fareham issued an enforcement notice in 2023 for alleged breach of planning control for material change of use of part of the land and unauthorised excavation to create an underground area.

The theatre appealed to a planning inspector, who dismissed the contention that the theatre was entitled to rely on s.57(4) of the TCPA to revert to a theatre use on 'areas A and B 'and a storage use on ‘area C’, so restoring the situation before it bought ‘area C’ and occupied it together with ‘areas A and B’.

Following this the theatre appealed to the High Court under s.289 of the TCPA 1990 but this too was dismissed.

It then went to the Court of Appeal where Holgate LJ held the theatre was right in its interpretation.

Holgate LJ said: “The inspector's decision cannot stand. Unfortunately, when she came to apply s.57(4) she was led into considering matters which were irrelevant to that provision, but which concerned the taking of enforcement action for the breach of planning control, such as the creation of a new planning unit and the extinguishment of pre-existing use rights.

“She did not apply the statutory disregard as explained by the House of Lords in Young. The inspector was also led into error by the citing of Stone, which was essentially a decision on its facts and provided no assistance on the application of s.57(4) in the present case. These errors of law tainted the inspector's decision on [two grounds].”

Lord Justice Lewison agreed and added: “It is of critical importance to appreciate that section 57(4) requires a counter-factual hypothesis…that the development in question has not been carried out.”

He said: “In my judgment the inspector's analysis simply fails to engage with the statutory hypothesis. The new planning unit was created by the very development which was the subject of the enforcement notice. It is that development which must be ignored in reconstructing the position in the hypothetical world required by section 57(4).

“The question for the inspector and the judge was not whether a new planning unit…had been created in the real world, but what would have been the position if that new planning unit had not been created, and that new chapter had never opened? In failing to engage with the statutory hypothesis I consider that the inspector (and the judge who upheld her analysis) were wrong in law. The inevitable corollary if the unlawful development had not been carried out is that the previous lawful uses in relation to the previous planning units would have prevailed.”

Lord Justice Dove agreed with both other judges.

Law firm Thrings, which acted for the theatre, said it had instructed Megan Thomas KC of Six Pump Court who argued the inspector had asked the wrong question by having relied on the consequences of the breach to reject the theatre’s case, rather than assuming the breach of planning control had not taken place as is required for section 57(4) to apply.

Thrings partner Fred Quartermain said a key outcome from the Court of Appeal was the structured approach now set out for applying section 57(4):

• Identify the development alleged in the enforcement notice
• Identify the use of the land immediately before that breach
• Assume the breach did not occur
• Determine whether the preceding use was lawful.

If the answer at stage 4 is ‘yes’, planning permission is not required to revert to that use.

Mr Quartermain said: “This model provides a clear and practical framework, shifting away from the more restrictive approach seen in previous decisions.

“The Court of Appeal also, very usefully, clarified that the term ‘new planning unit’ can relate to two different concepts one of which involves incompatibility with previous lawful use rights and so it must be used with caution.”

Ashley Bowes, of Landmark Chambers, who acted for the Secretary of State, said the case showed there is no requirement that before the breach in the notice any lawful use must have related to a single planning unit equating to the notice land.

It had also said the previous case of Stone v Secretary of State for Communities and Local Government [2014] EWHC 1456 has been misunderstood and did not establish the proposition that s.57(4) only allowed a reversion to a prior use if it was co-terminus with the notice area.

Mark Smulian