Planning permission — Certificate of lawful use — Material change of use in breach of planning control — Council issuing enforcement notice — Claimant 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 claimant 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, he council refused that application. The council subsequently issued an enforcement notice alleging breach of planning control and requiring the claimant to cease its unlawful use within two months.
The claimant’s appeal against the enforcement notice was dismissed by an inspector appointed by the first defendant, but the claimant appealed under section 289 of the Town and Country Planning Act 1990.
An issue arose as to the status of the document issued by the council in November 2001 and whether it constituted a certificate of lawful use in respect of a proposed use.
Held: The appeal was allowed.
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.
Although nothing in the document purported to make it a certificate issued under section 192, it was intended to be a significant planning document and to have legal effect by defining what would be permitted to be done. Viewing the document in its context, which included the exchanges of correspondence and the terms of the council officers’ report, it was clear what was applied for, what was intended to be granted and its terms.
Taking that approach, the certificate issued was in a form substantially to the like effect as a certificate under section 192. The failure to comply strictly with section 192(3) did not prevent the statutory notice having an effect as such: York v Casey [1998] 2 EGLR 25; [1998] 30 EG 110, Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] 1 EGLR 57; [1997] 24 EG 122; [1997] 25 EG 138 and R v Ashford Borough Council, ex parte Shepway District Council [1999] PLCR 12 considered.
Peter Wadsley (instructed by Wilbraham & Co, of Birmingham) appeared for the claimant; Paul Greatorex (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendants, South Gloucestershire Council, did not appear and were not represented.
Eileen O’Grady, barrister
