Town and country planning – Certificate of lawful use – Planning conditions – Defendant local authority granting lawful development certificate for use of land and buildings as shooting school – Claimant landowners applying for judicial review — Whether defendants adopted correct legal test to define land used over continuous 10-year period – Whether certificate wrongly identifying scale of breach – Application dismissed
The claimants lived at Lady’s Wood, Chipping Sodbury and owned adjoining land which comprised woodland and a field. In 1984 they obtained planning permission to run a shooting school from the wood. The accompanying plans showed the wood with a significantly smaller defined area of the school roughly in the centre of it. The conditions included the restriction of hours of operation to 10am to 4pm Tuesday to Saturday, and the restriction on the maximum number of people receiving shooting instruction at any one time to two. In 1985 permission was granted for the erection of a 37-metre tower in the wood for the launching of clay pigeons. In 2013, they granted a lease of the land to a company which continued to operate the school.
In 2015 the company applied to the defendant local authority, under section 191 of the Town and Country Planning Act 1990, for a certificate that its use of the land for the shooting school in breach of the conditions was lawful since it had been going on for more than 10 years prior to the application. The defendants issued a certificate which covered the central and eastern parts of the wood and the whole of the field in breach of planning conditions, limiting the hours of operation and the number of persons being instructed at any one time.
The claimants applied for judicial review of the decision to grant a certificate. They contended that the defendants had not adopted the correct legal test to define what land had been used for the school over a continuous period of 10 years and there was insufficient evidence to justify the decision that such use extended over the field as well as the wood; and that the certificate should have identified the scale of the breach by reference to the number of persons receiving instruction at any one time and the type of cartridge used.
Held: The application was dismissed.
(1) Where there was a single main purpose of the occupier’s use of land to which secondary activities were incidental or ancillary, the whole unit of occupation had to be considered as a single planning unit. However, where, within single unit of occupation there were two or more physically separate and distinct areas occupied for substantially different and unrelated purposes, each area used for a different main purpose ought to be considered as a separate planning unit. It was a question of fact and degree. Precision was important in defining in the certificate the use found to be lawful. Otherwise the local planning authority might be precluded from preventing a use for which planning permission would not have been granted because the certificate had been issued in terms wider than were necessary. Where a certificate was wider than necessary, it would be quashed. It was not a requirement of law that in all cases a certain degree of particularisation was required. The appropriate level of detail would vary from case to case and was a matter of judgment for the decision maker based on the evidence. However, it was wrong in law to include in the certificate some of the particularity but not all of it: Burdle v Secretary of State for the Environment [1972] 1 WLR 1207, Broxbourne Borough Council v Secretary of State for the Environment [1980] QB 1, R v Sheffield City Council, ex parte Russell (1994) 68 P & CR 331, R v Thanet District Council, ex parte Tapp [2001] 3 PLR 52, Hillingdon London Borough Council v Secretary of State for Communities and Local Government [2008] EWHC 198 (Admin); [2008] PLSCS 37, R (on the application of North Wiltshire District Council) v Cotswold District Council [2009] EWHC 3701 (Admin) and Main v Secretary of State for Communities and Local Government (1998) 77 P & CR 300 considered.
(2) In the present case, the planning officer had well in mind that the evidence of shooting over the entire area of the site plan had to be considered over the 10-year period. He was entitled to conclude that from some of the shooting positions the fire was directed over the field and that the traps shown on the layout plan had been in position for well over 10 years. His conclusion that there did not appear to be any significant functional or physical separation across the site came after a number of site visits. He was entitled to conclude that there were no grounds to define a renewed but small area of lawfulness within what appeared to be a genuinely large but legitimate planning unit. There was nothing to show that such a conclusion was irrational. The certificate specifically and precisely identified the area to which it related by reference to the site plan, in compliance with section 191(5) of the 1990 Act.
(3) There was clear evidence on which to conclude that the planning condition limiting the maximum number of people receiving shooting instruction at any one time to two had been breached over a continuous period of 10 years. Just because a restriction in respect of the opening hours could properly be expressed in the certificate, it did not follow that a restriction in respect of numbers also had to be expressed. On the evidence there was a rational basis for making a recommendation in the one case but not in the other. The decision not to include any restriction on numbers of participants or cartridge type was not irrational.
James Corbet Burcher (instructed by Keystone Law) appeared for the claimants; Alexander Greaves (instructed by South Gloucestershire Council) appeared for the defendants.
Eileen O’Grady, barrister
