Property – Change of use – Abandonment – Property built for residential purposes run-down – Planning authority granting permission for limited time for change of use – Claimant owner seeking lawful development certificate years after cessation of alternative use – Secretary of state upholding refusal of certificate since residential use abandoned – Claimant applying to quash decision — Whether inspector erring in law in finding that residential use abandoned — Application dismissed
The claimant owned a cottage for use as a dwelling-house. Between 1918 and 1955, the property had been used for residential purposes but by 1955, it had become run-down and was unfit for human habitation. In the 1950s, the then owner’s application for a grant to carry out work to render the property fit for habitation was refused and in 1956, the owner obtained planning permission to change the use of the property to a poultry house. That use had ceased by September 1961, when the planning permission expired. The property remained unused from 1961.
In May 2008, the claimant, who became the owner in the 1990s, applied to the second defendant council for a lawful development certificate for an existing use of the property as a dwelling. That application was refused on the basis that the residential use had long been abandoned so that the structure no longer had a lawful planning use as a dwelling. An inspector appointed by the first defendant conducted a public local inquiry and dismissed the claimant’s appeal against that refusal.
The claimant applied to the court, under section 288 of the Town and Country Planning Act 1990, to quash that decision and remit the case for redetermination. The appeal before the inspector had proceeded on the basis that the claimant had the right to resume the use of the property as a dwelling-house at the time he made his application for a certificate of lawfulness, pursuant to section 57(2) of the 1990 Act, but that either he or his predecessor in title had abandoned that right. The court’s task was to decide whether the inspector had erred concluding that the right had been abandoned. If no error had been made the claimant’s right to resume residential use of the property had been lost.
Held: The application was dismissed.
The test for abandonment was the view, objectively taken, of a reasonable man with knowledge of all the relevant circumstances. Four factors had to be considered when assessing whether a use had been abandoned: (i) whether the property had been used for any other purposes; (ii) the physical condition of the building; (iii) the length of time it had not been used for residential purposes; and (iv) the intentions of the owners of the building. However, the weight to be attached to those factors was for the decision maker to determine. Hughes v Secretary of State for the Environment, Transport and the Regions [1999] 1 PLR 76 applied; Trustees of the Castell-y-Mynach Estate v Secretary of State for Wales [1985] JPL 40 considered.
The relevant circumstances that had to be assumed to be within the knowledge of the reasonable man when applying the test of abandonment included the reasons that explained why, in any given case, the owner had not resumed the use after cessation. However, those reasons might or might not convince the reasonable man that it was appropriate to conclude that the property had not been abandoned and could not elevate the owner’s subjective intention to a status that it did not enjoy.
In the instant case, the inspector had taken all the relevant factors into account and the court could discern no error of law that would justify the relief sought by the claimant.
Per curiam: The court was not convinced that the right to resume a previous lawful normal use under section 57(2) subsisted indefinitely if that right could be said to have been abandoned. The words of that subsection implied a relationship in time between one use ending and another commencing. If there were a significant period between the expiry of the time during which the alternative use was authorised and the resumption of the previous normal use, it was possible that unless the lapse of time was explained by factors such as negotiations between the landowner and the local authority, the right to resume might be lost. Further, there had to be a point in time when, as a matter of interpretation, it could not be said that the resumed use occurred at the end of the period during which an alternative use was authorised.
Paul Stinchcombe QC (instructed by under the bar direct access scheme) appeared for the claimant; Stephen Whale (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendant did not appear and was not represented.
Eileen O’Grady, barrister
