Planning permission — Certificate of lawful use — Material change of use in breach of planning control — Council issuing enforcement notice — Respondent applying for lawful development certificate — Whether council response amounting to certificate of lawful use — Appeal allowed
In 1965, planning permission was granted for the change of use of a railway booking office and yard (the appeal site) to a garage and store for the Bristol Avon River Board (BARB). This was subject to the condition that the building was not to be used for any purpose within Class X of the Town and Country Planning (Use Classes) Order 1963 other than that permitted without the prior consent of the local planning authority.
The respondent acquired the site in 2000 and, in June 2001, it applied for a lawful development certificate in respect of the site, pursuant to section 192 of the Town and Country Planning Act 1990. The council replied with a document dated 19 November 2001 that stated that the 1965 planning permission was not a personal consent to BARB and that the Class X use referred to in the permission was now covered by reference to storage in use class B8.
In September 2003, a further planning application was made for the use of the site as a vehicle repair shop, use of the yard for parking vehicles including ones for hire and the stationing of storage containers. In December 2003, the council refused that application. The council subsequently issued an enforcement notice alleging breach of planning control and requiring the respondent to cease its unlawful use within two months.
The respondent’s appeal against the enforcement notice was dismissed by the first appellant’s inspector but the respondent appealed under section 289 of the 1990 Act. The High Court allowed that appeal, holding that the inspector had erred in law by failing to characterise the document of 19 November 2001 as a certificate of lawful use and so, having regard to section 192(4) of the 1990 Act, the lawfulness of any use for which that certificate was in force should be conclusively presumed: see [2005] EWHC 2713 (Admin); [2005] PLSCS 217. The matter was remitted back to the inspector for reconsideration but the first appellant appealed.
Held: The appeal was allowed.
The failures to comply strictly with the mandatory requirements of section 192 were fatal to the respondent’s case. The question of whether the certificate had any legal status depended upon whether it complied with the statutory requirements for its validity but the certificate was not in the prescribed form or anything substantially to the prescribed effect. The local planning authority had failed to certify that they were satisfied, pursuant to section 192(2), that the use or operations described in the application would be lawful if instituted or begun at the time of the application. Further, there was neither a clear description of the use or operations in question as required by section 192(3)(b) nor any reasons for the determination that the use was lawful pursuant to section 192(3)(c): York v Casey [1998] 2 EGLR 25; [1998] 30 EG 110 and Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] 1 EGLR 57; [1997] 24 EG 122; [1997] 25 EG 138 distinguished.
The certificate was not a private notice between the planning authority and the respondent applicant but a public document in which the rights and interests of the public had to be taken into account. Landowners should have a reasonably accessible means of establishing what could be done lawfully with their property. Looking at this certificate, it was impossible to know whether it was a grant of permission or a certificate of lawfulness of proposed use. The 1990 Act specified more precision which this certificate did not provide: R (on the application of Reprotech (Pebsham) Ltd) v East Sussex County Council [2002] UKHL 8; [2002] 2 PLR 60 considered.
Nathalie Lieven and Paul Greatorex (instructed by the Treasury Solicitor) appeared for the appellants; the respondent did not appear and was not represented.
Eileen O’Grady, barrister
