It is generally recognised, as a matter of law, that a planning permission that is capable of being implemented according to its terms cannot be abandoned. However, the courts have recognised the concept of abandonment of a permitted use of land. When such a use has been abandoned, then resumption of that use amounts to development requiring planning permission. Clearly, whether cessation of a use amounts to abandonment depends on the particular circumstances of the case. The test evolved by the courts is an objective one; ie what would be the view taken by a reasonable man with knowledge of all of the relevant circumstances? Four specific factors are to be taken into account. They are (1) the physical condition of any relevant buildings. (2) The period of non-use. (3) Whether there has been any other intervening use. (4) Evidence regarding the owner’s intentions. (On the last factor, the courts have stated that the owner’s intentions can never be decisive of the matter given the objective nature of the test.)
In Wood v Secretary of State for Communities and Local Government [2015] EWHC 2368 (Admin), planning permission had been granted in 1967 for the formation and construction of a basin on an island in the middle of a river. Later, planning permission was also granted for the erection of dry and wet boathouses, and a bridge over the river linking the island to the bank of the river. (None of these planning permissions indicated how the basin was to be used.) Some years later, the then owners of the site demolished all of the buildings, leaving only the basin and the bridge. In 2011, the local planning authority (“LPA”) issued an enforcement notice requiring, inter alia, the cessation of the use of the basin for the mooring of boats. (The mooring complained of was long-term mooring, where boat owners treated the basin as a “home base”.) The LPA contended that such use had taken place during the previous 10 years, and was without the benefit of planning permission.
The court upheld the following conclusions by an inspector on appeal. (A) On a true construction of the planning permissions – relying upon section 75(3) of the Town and Country Planning Act 1990 – the permitted use of the basin and boathouses had been used in connection with the operation of a commercial boatyard, and not some wider use embracing moorings of any and every kind. (B) The boathouse use had subsequently been abandoned, that abandonment being evidenced in part by the demolition of the buildings and in part by an undertaking entered into by the then owner with the LPA prohibiting the use of the site for commercial purposes. (C) Even if such abandonment had not occurred, the mooring of private boats would not be lawful, since it was a very different use from the one that was inherent in the planning permissions and so outside their scope. (D) Accordingly, a material change of use had taken place without the benefit of planning permission.
John Martin is a planning law consulant
