Permission for change of use applied for and granted in 1995 – Grant purporting to limit duration of permission to seven years – Applicant making fresh application for permanent change of use – Inspector refusing application and declining to consider whether limitation on earlier grant validly imposed on a grant made otherwise than by development order – Applicant’s appeal allowed
The appeal premises comprised two large hangars and ancillary accommodation located on the former Weston Airport, Locking Moor Road, Weston-super-Mare. In 1994 the applicant sought planning permission for various changes of use for a temporary period of seven years. On February 15 1995, following an appeal against non-determination, the respondent’s inspector (the 1995 inspector) granted “planning permission for additional use of warehouse/factory for sales, exhibitions and leisure activities for a temporary period of seven years at Weston Business Park . . . in accordance with the terms of the application”. Various conditions were imposed, none of which required cessation of the use after seven years. On April 17 1997 the applicant applied for permanent use of the premises for the same purposes. That application was refused and the applicant appealed, contending, inter alia, that the 1995 application took effect as a permanent permission. The appeal was dismissed by the inspector (the 1998 inspector) who, in his decision letter dated January 16 1998, stated that, while it was not for him to rule as a matter of law whether the 1995 permission was of a temporary or permanent nature, he would nevertheless give weight to the fact that that permission had been granted conditionally. Appealing to the High Court, the applicant, while accepting that the seven-year restriction would have been effective if it had been expressed as a condition requiring discontinuance of use, contended that the 1998 inspector should have ruled that the 1995 inspector had no power to impose a limitation on the duration of the permission, and that, accordingly, a continuation of the permitted use after the seven-year period would not involve “a change of use” within the meaning of the Town and Country Planning Act 1990.
Held The appeal was allowed.
1. Although the 1990 Act contained various provisions (notably section 60) referring to a permission subject to a limitation, as distinct from a condition, these were, on their proper construction and having regard to their statutory history, confined to permissions granted by development order as opposed to grants following an application. An implied power to impose a limitation on the latter form of grant could not be spelled out of the enforcement-related provisions.
2. The court also rejected the respondent’s alternative submission that the character of the use would necessarily change after the expiry of the seven-year period. The temporal limitation had no bearing on the manner in which the land was being used: see per Lord Parker CJ in Cater v Essex County Council [1960] 1 QB 424 at p437.
3. The 1998 inspector had accordingly failed to have regard to a material consideration, namely that the 1995 permission was, in effect, permanent.
Paul Brown (instructed by Davies & Partners, of Gloucester) appeared for the appellant; Rabinder Singh (instructed by the Treasury Solicitor) appeared for the respondent.
