Town and Country Planning Act 1971 — Secretary of State’s decision to uphold enforcement notice challenged — Discussion of theories of ‘new planning unit’ and ‘new chapter in planning history’ — Latter theory preferred by Master of the Rolls — Enforcement notice requiring discontinuance of use of a new building for the purpose of the repair, servicing and maintenance of motor vehicles — New building erected to replace old building on a small portion of a half-acre site which had existing use rights for a mixed use in connection with repair, servicing and maintenance of vehicles — Divisional Court in present case had upheld minister, regarding themselves as bound by Aston v Secretary of State for the Environment to decide that the erection of a new building ipso facto gave rise to a new planning unit and put an end to any existing use rights in respect of the land on which the new building was erected — Statements in Petticoat Lane Rentals Ltd v Secretary of State for the Environment and in the Aston case criticised as too wide — Appellants in present case entitled to benefit of existing use rights in respect of new building — Appeal allowed, reversing decision of Divisional Court — Matter remitted to Secretary of State for rehearing and determination in the light of the Court of Appeal’s ruling — Aston decision criticised
The
appellants, Jennings Motors Ltd, appealed from an order of the Divisional Court
(Donaldson LJ and Bristow J), dated April 22 1980 upholding a decision of the
Secretary of State which in turn upheld an enforcement notice served by the
local planning authority on the appellants. The notice was in respect of the
erection of a new building on an industrial site at Dibden Purlieu, near the
New Forest, and required the discontinuance of the use of the building for
workshops for the repair, servicing and maintenance of motor vehicles.
Michael J
Burrell (instructed by Malkin, Cullus & Sumption, agents for Lamport,
Bassitt & Hiscock, of Southampton) appeared on behalf of the appellants;
Simon Brown (instructed by the Treasury Solicitor) represented the respondent.
Giving
judgment, LORD DENNING MR said: The village has an attractive name, Dibden
Purlieu. It goes back to the times of the Norman French. It is a mile or so
inland from Southampton Water on the west side, near the New Forest. Some part
of it has been developed in recent years for residential purposes. It is
designated in the Hythe Town Map, Hampshire, for residential use. But, in the
midst of this residential area there is an industrial site. It only takes up
about half an acre all told. It has been used for the last 20 years for
commercial purposes in connection with motor vehicles. It is a mixed use in
connection with the repair, servicing and maintenance
of the site. There is a showroom and office in another. It takes up
one-thirteenth of the site. No question arises about those. But then there is a
new building. It occupies only about one-seventeenth of the site of half an
acre. It is about 55 ft long and 23 ft wide and 10 ft high. The rest of the
site is for access and parking motor vehicles.
It is that new
building which is in question. Previously there was a garage workshop there.
The occupiers had applied in 1975 for permission to pull it down and put up the
new building. It was refused. They never got permission for it. But, in spite
of the refusal of permission, the occupiers completed the building. The local authority
did not take enforcement proceedings in respect of the building because ‘it was
considered that the new building was more satisfactory in appearance than those
it had replaced’. Nevertheless, the local authority resolved that enforcement
proceedings should be taken to secure the discontinuance of the use.
Now the point
of law that arises is this: The whole of the half-acre site is being used for a
‘mixed’ use for which it has been used for the last 20 years, since 1962. The
new building is being used for one of those mixed uses, namely, the repair and
servicing of motor vehicles. It is not suggested that there has been a change
in the ‘mix’ of use on the site as a whole. Nor is any charge made in the
enforcement notice that there has been a change owing to the ‘intensification’
of use. The enforcement notice related only to the new building (coloured pink
on a plan). It was dated August 12 1976 and was in these terms:
It appears to
the Council that after December 31 1963 there has been a breach of planning
control in that the said land has been developed by the making of a material
change in the use of the buildings coloured pink on the attached plan situate
thereon to a use for the purpose of workshops for the repair, servicing and
maintenance of motor vehicles without the grant of permission. . . . Now
therefore . . . the Council hereby require you within two months . . . to
discontinue the use of the buildings coloured pink on the attached plan for the
purpose of workshops for the repair, servicing and maintenance of motor
vehicles.
The minister
upheld the enforcement notice. In his decision letter of June 6 1978 he said:
In the light
of the judgment of the Petticoat Lane case it is considered that when
the new building was erected a new planning history commenced in respect of it,
and the building on completion had no actual, established or permitted use . .
. it is considered that this use (for the repairing, servicing and maintenance
of motor vehicles) must involve a material change of use from no use, and there
has therefore been a breach of planning control.
The Divisional
Court upheld the minister. They did so reluctantly as they thought they were
bound by the unreported case of Aston (infra). The occupiers
appeal to this court. We have been referred to all the cases. They disclose two
theories. The one is the theory of the ‘new planning unit’. The other is the
theory of the ‘new chapter in planning history’. I will consider each theory
separately.
‘The new
planning unit’
According to
this theory, when a man applies for permission to erect a new building, either
where none existed before or to replace an old building, he creates a ‘new
planning unit’. He can use it for any purpose specified in the permission or,
if no purpose is specified, for the purpose for which it was designed to be
used; see section 33(2) of the 1971 Act, subject to any conditions contained in
the permission. If he erects a new building without any permission at all, he
starts with a nil use and must get permission for any use. Once he erects that
new building, he cannot fall back on previous existing use rights. This theory
was stated by Widgery LJ in Petticoat Lane Rentals Ltd v Secretary of
State for the Environment [1971] 1 WLR 1112. In that case the new building
covered the whole site. Widgery LJ said:
In my
judgment one gets an entirely new planning unit created by the new building.
The land as such is merged in that new building and a new planning unit with no
planning history is achieved. That new planning unit, the new building, starts
with a nil use . . .
In the later
case of Aston v Secretary of State for the Environment (not
reported, April 9 1973) Lord Widgery CJ (as he then was) applied it to a case
where the new building covered only part of the site — just about half the
site. He said:
where you
have a new building erected, that part of the land which was absorbed in the
new building and covered by the new building is merged in it; you start with a
new planning unit which has no permitted planning uses except those derived
from the planning permission, if any, and from section 33(2) of the Town and
Country Planning Act 1971, which allows such a building in many instances to be
used for the purpose for which it was designed.
That theory
was accepted by Lord Fraser in Newbury District Council v Secretary
of State for the Environment [1981] AC 578 in the House of Lords, when he
said (at p 606): ‘The only circumstances in which existing use rights are lost
by accepting and implementing a later planning permission are when a new
planning unit comes into existence.’
This theory
has been extended by some observations in the House of Lords to a case where a
man applies to change the use of a building so as to make it available for
occupation for several families. If he acts on the permission and makes the
change — by putting in internal partitions and doors — then he creates a ‘new
planning unit’. He must abide by any conditions inserted in the permission. He
cannot fall back on previous existing use rights: see the Newbury case supra
[1981] AC at p 607 by Lord Fraser and at p 618B by Lord Scarman.
‘A new
chapter in planning history’
According to
this theory, when a man applies for permission to erect or alter a building —
or to make a change in the use of land — in such circumstances as to effect a
radical alteration in the nature or use of the site — then it may be
interpreted as the opening of a ‘new chapter in the planning history’. If he
then acts on the permission — and erects or alters the building or changes the
use of the land — he must abide by the conditions on which the permission was
given. He cannot afterwards revert to any previous existing use rights. This
theory was stated clearly by Lord Parker in Prossor v Minister of
Housing and Local Government (1968) 67 LGR 109. In that case a garage
proprietor applied for planning permission to erect a new building on part of
the site to replace an existing repair shop. He was granted permission on the
condition that no retail sales were to take place in the new building. The
garage proprietor afterwards claimed that he had existing use rights for
selling motor cars. Lord Parker CJ said (at p 113):
. . .
Assuming that there was at all material times prior to April 1964 an existing
use right running on this land for the display and sale of motor cars, yet by
adopting the permission granted in April 1964 the appellant’s predecessor, as
it seems to me, gave up any possible existing use rights in that regard which
he may have had. The planning history of this site, as it were, seems to me to
begin afresh on April 4 1964 with the grant of this permission, a permission
which was taken up and used.
This theory
was restated by Lord Lane in the Newbury case [1981] AC at p 626 C-D:
. . . The
holder of planning permission will not be allowed to rely on any existing use
rights if the effect of the permission when acted on has been to bring one
phase of the planning history of the site to an end and to start a new one.
The
difference in the two theories
In many cases
the two theories give the same result. Thus in the Newbury case [1980]
AC 578 there was no new building at all. The two hangars remained the same
throughout. So there was no ‘new planning unit’. Equally the use of those
hangars remained substantially the same throughout for storage purposes. So
there was no ‘new chapter of planning history’. Lord Lane said (at p 626F):
‘The change of use from repository to wholesale warehouse could not by any
stretch of the imagination be said to have started a new planning history or
created a new planning unit. Indeed no one has so contended.’
But in some
cases the two theories give different results. Thus, where an old building is
pulled down and a new one put in its place, there is no ‘new planning unit’.
But the change of use may be so radical that the new use to which the building
is put may open a
case (1968) 67 LGR 109. The new use was for a repair shop and stores. The
existing use (on which the occupier relied) was for the display of secondhand
cars for sale. The repair shop was so radical a change that it opened a ‘new
chapter in planning history’.
In the Aston
case, and in our present case, the two theories give different results. In each
case there was a new building on part of the site, and thus a ‘new planning unit’.
But in neither case did the new use open a ‘new chapter in the planning
history’. I think that the Aston case was wrongly decided, so also the
decision of the Divisional Court in this case, which followed it.
Result
In the light
of experience, I think we should discard the theory of the ‘new planning unit’.
In future it should no longer be thought that a new building creates a ‘new
planning unit’ which starts with a ‘nil use’. Certainly not when it is just the
replacement of an old building. The better theory is the opening of a ‘new
chapter in planning history’. This may take place when there is a radical
change in the nature of the buildings on the site or the uses to which they are
put — so radical that it can be looked upon as a fresh start altogether in the
character of the site. If there is such a change and the occupier applies for
permission and gets it subject to conditions — and acts upon that permission —
he cannot afterwards revert to any previous existing use rights.
Conclusion
Before us Mr
Simon Brown pleaded for guidance. He told us that those in the ministry were
much perplexed as to the right principle to adopt. He submitted that the right
theory was the ‘new chapter in the planning history’. I agree with him. Applied
to this case, I think there was no change in the planning history at all. There
is one whole site of half an acre with existing use rights. All that has been
done is to erect a new building in place of an old one, on a little portion of
the site. The occupiers are entitled to the use of those rights inside the new
building I would allow the appeal accordingly.
Agreeing that
the appeal should be allowed, OLIVER LJ said: The Divisional Court held that it
was bound by the unreported decision in Aston v Secretary of State
for the Environment to find that where, either with or without permission,
a building has been erected upon land previously unbuilt on, that building is,
from the time of its erection, a new planning unit, so that the building owner
is unable, where the question in issue is whether or not there has been a
material change of use, to pray in aid the pre-existing user of the land on
which the building stands.
It is, I
think, impossible to escape from the conclusion that that is what Aston
v Secretary of State decided. The pith of the matter is contained in the
following passage from the judgment of Lord Widgery:
. . . The
principle which one derives from the authorities and applies to the present
case is that where you have a new building erected, that part of the land which
was absorbed in the new building and covered by the new building is merged in
it; you start with a new planning unit which has no permitted planning uses
except those derived from the planning permission, if any, and from section
33(2) of the Town and Country Planning Act 1971, which allows such a building
in many instances to be used for the purpose for which it was designed.
The principle
there expressed is enunciated as a universal one, and the short question raised
by the present appeal is: Is it right?
Inevitably this involves some review of the relevant authorities from
which the universal principle is said to stem.
The first of
these is Prossor v Minister of Housing and Local Government
(1968) 67 LGR 109. There had been for some years an established existing use as
a petrol filling station and motor repair shop. A planning permission was
granted for the erection of a new building and the replacement of an existing
repair shop and stores. It is not clear how far the new building covered the whole
of the site, but having regard to its size and shape and the nature of the
user, I infer that it covered part only. It was, however, granted subject to a
condition relating to the whole site that it should not be used for retail
sales other than sales of spare parts and the redevelopment took place pursuant
to that permission. An enforcement notice to prevent the user of the forecourt
for the sale of secondhand cars was upheld by the Divisional Court and on one
analysis of the decision (subsequently suggested in Gray v Minister
of Housing and Local Government (1968) 68 LGR 15) the basis for this was,
in effect, an estoppel arising from the acceptance of the permission with the
condition attached and the subsequent implementation of it. If that were indeed
the ground of the decision — and the judgment of Lord Parker CJ does not make
it entirely clear that it was — it is now clear from Newbury District
Council v Secretary of State [1981] AC 578, that it cannot be
sustained as a correct decision on that ground. But the way in which it was put
by Lord Parker was this:
By adopting
the permission granted in April 1964, the appellant’s predecessor, as it seems
to me, gave up any possible existing use rights in that regard which he may
have had. The planning history of this site, as it were, seems to me to begin
afresh on April 4 1964 with the grant of this permission, a permission which
was taken up and used. . . .
I draw
attention to this because it is consistent with Mr Simon Brown’s submission on
the present appeal that what the court is concerned with is not so much ‘a new
planning unit’ (an expression which, he suggests, may be misleading) but simply
with the question whether an event or a concatenation of events has taken place
which can, as a matter of fact, be said to have opened a new chapter in
the planning history. That is a question of intention and degree. The
expression ‘planning unit’ (which nowhere appears in the legislation) is,
however, one which is now hallowed by usage and is, I think, a convenient
phrase for identifying, in cases where the question is whether there has been a
material change of use, both the area whose planning history requires to be
studied for that purpose and, in an appropriate case, the starting point of
that history. The concept of the creation of a new ‘planning unit’ by the
opening of a new planning history, not so expressed in Prossor’s case,
emerges in the judgments of the Divisional Court in Petticoat Lane Rentals
v Secretary of State for the Environment [1971] 1 WLR 1112. The history
of the land with which that case was concerned had started with the use of the
land as an open site upon which a market was held. A building was then erected
over the whole site pursuant to a planning permission which designated the use
as an office, warehousing, supermarket, car parking and loading area (to be
used for market trading on Sundays). The question was whether the existing use
of the site for weekday markets prior to the erection of the building survived
that event. The Divisional Court held unanimously that it did not. There was
some discussion in the judgment of Widgery LJ (as he then was) of the ratio of Prossor’s
case, but he found it unnecessary to express any conclusion and was content to
say that the principle clearly applied ‘where, as here, one has a clear area of
land subsequently developed by the erection of a building over the whole of
that land’. It seems, however, that when he spoke of ‘the principle of Prossor’s
case’ he must have had in mind the reference in the judgment of Lord Parker to
the fresh beginning of the planning history, for he went on to say at p 1117:
Where that
happens . . . one gets in my judgment an entirely new planning unit created by
the new building. The land as such is merged in that new building and a new
planning unit with no planning history is achieved. That new planning unit, the
new building, starts with a nil use, that is to say immediately after it was
completed it was used for nothing, and thereafter any use to which it is put is
a change of use, and if that use is not authorised by the planning permission,
is a use which can be restrained by planning control.
It is thus
clear that what brought about the result described by Lord Widgery was not the
acceptance of the planning permission, which was arguably inconsistent with the
prior existing use, but the mere erection of the building, and it would follow
that the same result must ensue even if there were, as in the instant case, no
planning permission at all. Bridge J (as he then was) and Lord Parker CJ
agreed, but reserved the question of what the result would be where (as here)
the building was on part only of a site having a prior existing use as a whole.
The concept here, therefore, is that of the creation of a new and different
unit by the physical alteration of the land to an extent enabling it to be
treated as if it
before. Thus Bridge J referred to the ‘disappearance’ of the land to which the
existing user was attached.
A similar
concept is to be found in Leighton and Newman Car Sales Ltd v Secretary
of State (1976) 32 P & CR 1, where there had been a pre-existing garage
business on a site forming part of the relevant land, a business which included
the sale of cars. The site, together with two adjoining sites, was redeveloped
entirely as a petrol filling station under a permission which contained a
condition restricting the use of certain car-parking space to the parking of
vehicles of the occupiers and users and prohibiting the sale or display for
sale of vehicles on the forecourt. The Secretary of State’s dismissal of the
tenant’s appeal against an enforcement notice was attacked (inter alia)
on the ground that the inspector’s report had not included a relevant matter,
namely the existing use of the garage site before the redevelopment. This court
upheld the dismissal by a Divisional Court of an appeal from the Secretary of
State. In the judgment of the court, delivered by Browne LJ, there is this
passage (at p 10): ‘Further, nos 271 to 275 were not merely a different
‘planning unit’ from the old no 271; they were a completely new and different
physical unit to which we think the previous use of no 271 was irrelevant’.
In my judgment
this is the essence of the matter. Where there has been a total change in the
physical nature of the premises it is easy to infer — indeed, the inference may
be irresistible — that reliance upon any prior user is being abandoned and a
new planning history is to begin. Such an inference may equally be drawn — and
may equally be irresistible — where there is no change or a less radical change
in the physical nature of the site but a change in what I may call its planning
status which is inconsistent with the preservation of a prior existing use —
for instance its subdivision into smaller units of occupation or its
incorporation into a larger single unit.
Whether the
alteration is of such a character as to produce this result is, I think, in
every case a question of fact and degree.
How, then,
does the matter stand when, as in the instant case, what has occurred is that
there has been some physical alteration to part only of an occupation site, for
instance by the erection on it of a new building, the alteration of an existing
building, or an application for and grant of a planning permission subject to
conditions inconsistent with the prior user?
This may pose very difficult problems in the interpretation of the
facts, particularly where, as here, there is a mixed site or where a particular
use has been intensified as a result of the change. But these are problems only
of fact and degree, not of principle, and they are not insoluble.
There are, so
far as the industry of counsel has been able to discover, only two reported
cases — the Aston decision is, as I have said, unreported — which relate
to the problems created in the field of change of user by the erection of a new
building on part only of the site. The first is the case of Joyce
Shopfitters Ltd v Secretary of State, a decision of the Divisional
Court, reported only in the notes of cases in [1976] JPL 236.* The report is a very sketchy one, but what
seems to have occurred there was that a building on the site was used partly
for the manufacture of fencing and garden furniture and partly for car repairs
and car breaking. The remainder of the site, which included two cottages, had
been used for purposes ancillary to those purposes. The site owners, without
planning permission, built an extension to the main building and demolished the
cottages. Two enforcement notices were served, one requiring the removal of the
extension and one requiring the discontinuance of the user of the site for the
purposes of a joinery and shopfitting business — a business which the Secretary
of State found was not a change of use because it was merely a change from one
industrial use to another within section 22(2)(f) of the Town and Country
Planning Act 1971. He declined to grant permission for the retention of the
extension to which the first enforcement notice related, but he upheld the
second enforcement notice relating to change of use in respect of the site of
the extension and (on the ground that there was a separate planning unit with a
nil user) in respect of the site of the cottages. The Divisional Court remitted
the matter for reconsideration on the basis that, so far as the site of the
extension was concerned, there was an existing use which had not been
extinguished by the erection of the extension, and so far as the site of the
cottages was concerned the planning unit to be considered was the site as a
whole.
*In last the
decision, given on July 14 1975, is reported verbatim and in full at 237 EG
576, [1976] 1 EGLR 144.
It is not easy
from the very brief report to get any very clear idea of the court’s reasoning,
but the case is consistent — indeed really only consistent — with the view that
the court did not consider that the changes which had taken place in the site as
a result of the extension and the demolition were of a sufficiently radical
nature to justify the inference that in either case there was the abandonment
of the existing industrial user and the commencement of a new planning history.
The case is thus entirely consistent with what has been said above and
inconsistent with the view that the mere erection of a building constitutes a
new planning unit. The second case is that of Hilliard v Secretary of
State (1978) 37 P & CR 129. Here an area of farmland had existing use
rights for agricultural purposes with ancillary storage and wholesale
distribution of both indigenous and non-indigenous produce. The owner applied
for and was granted a planning permission to erect a building, the permission
having attached to it a condition that it should only be used for the storage
of agricultural produce and farm implements in conjunction with the use of the
farm for agricultural purposes. The building subsequently came to be used for
the wholesale distribution of fruit and vegetables and the local authority,
instead of serving an enforcement notice to enforce the condition, served a
notice requiring the discontinuance of material change of user on the footing
that there had been an intensification of user amounting to an unauthorised
change of user. This court, on appeal from the Divisional Court’s upholding of
the Secretary of State’s decision to uphold the enforcement notice, reversed
the decision and remitted the matter to the Secretary of State on the footing
that the evidence had been directed entirely to the intensification of the user
of the building when it should have been directed to the intensification of the
user of the farm as a whole. The case is not, I think, of very much assistance
in the context of the present inquiry, because, ex concessis, the
planning unit there was the farm as a whole and it was to the whole of that
unit (as is, indeed, the case here) that the enforcement notice was directed.
The case therefore turned entirely upon whether the evidence could be said to
have established a change of user by intensification of the farm as a whole. It
has, however, this relevance, that, as Mr Burrell points out, a building
erected upon part only of the land was not there treated as, ipso facto,
creating a new planning unit, and indeed the decision of the court is only
consistent with their view that it had not done so. Presumably it did not do so
because the alteration of the unit was not such, as a matter of fact and
degree, as to justify the inference that the existing user was being abandoned
and a new and different planning unit created.
Speaking for
myself, I have some sympathy with Mr Brown’s suggestion that ‘planning unit’
has become perhaps a slightly confusing expression, combining, as it does,
concepts both of geography and history. It is used in the temporal sense of a
separate and distinct period of planning history with its own beginning and end
relating to a given area of land, and it is used to distinguish and isolate the
geographical area of land the history of which, for a given purpose, has to be
studied. Nevertheless, it is, I think, a convenient phrase, and there is an
extremely helpful general test contained in the judgment of Bridge LJ (as he
then was) in Burdle v Secretary of State for the Environment
[1972] 1 WLR 1207 at 1212-3.
The historical
content of the term is well brought out in the speeches of Lord Scarman and
Lord Lane in Newbury District Council v Secretary of State for the
Environment [1981] AC 578. Lord Scarman, at p 617, says:
Clearly it
will be much more difficult to establish the creation of a new planning unit or
the beginning of a new chapter of planning history where the unnecessary
permission which has been granted subject to conditions purports to authorise
only a change of use. But such cases can exist . . . [and he gives an example].
There is [he continues] in such a case a wholly new departure, a new chapter of
planning history.
Lord Lane, at
p 626, is to the same effect. He said:
We were asked
by Mr Newey to say that the principle [ie the principle of the Petticoat
Lane decision] can only apply where the permission
the permission is simply to change the use. I do not consider that any such limitation
would be proper. It is not the reason for the break in planning history which
is important. It is the existence of the break itself, whatever the reasons may
have been. . . . In the present case there is no such break in the history. The
change of use from repository to wholesale warehouse could not by any stretch
of the imagination be said to have started a new planning history or created a
new planning unit.
Coming back,
then, to the Aston case, in my judgment, the principle there stated by
Lord Widgery CJ is, if I may say so respectfully, too widely expressed. In my
view the authorities show not that a new building, per se, has to be equated
with a new planning unit but that it is one of the factors — it may in many
cases be a conclusive factor — to be taken into account in considering whether
there has taken place in relation to the particular land under consideration a
change of so radical a nature as to constitute a ‘break in the planning
history’ or a ‘new planning unit’ (the expressions are used interchangeably).
As Mr Burrell points out, the building in the Aston case was, as a
matter of fact, pretty much on all fours with that in the Petticoat Lane
case, for it replaced an earlier building, destroyed eight years before, which
had covered rather less than half the available area, and it itself covered 90
per cent of the available area. There is, therefore, no ground for thinking
that the case was wrongly decided on the facts. But the stated ground for the
decision was, in my judgment, too widely expressed.
In the instant
case, the local authority could perfectly well have exerted their planning
control over the site by serving an enforcement notice for the removal of the
building, and then, if it was the user and not the building that they objected
to, granting a planning permission subject to a condition as to user. They
could have done that at any time within four years from 1975, but they chose
not to do so. In serving an enforcement notice to discontinue the use of the
building they necessarily opened up a consideration of the question whether the
circumstances, including the erection of the building without permission and
any intensification of user, led to the inference of the creation of a new
planning unit. It is not for this court now to decide that question, and I
content myself with observing only that the buildings concerned were merely a
replacement for already existing buildings on the site. I am, however, clearly
of the view that in considering himself bound by the Petticoat Lane decision
to hold that the erection of the new buildings per se constituted a new
planning unit and that he was thus constrained to depart from his inspector’s
recommendation, the Secretary of State misdirected himself. This, I think,
would clearly have been the view of Donaldson LJ if he had not felt himself
bound by the Aston decision — a disability from which this court is
relieved — and I would allow the appeal.
It follows
from what I have said above that in my view the difference between a new
planning unit and a change in the planning history is largely a semantic one.
The former expression is, as I have said, hallowed by long usage, and I for my
part think it would be a pity to discard it so long as the concepts which it
embraces (which include a change in the planning history) continue to be
clearly appreciated.
WATKINS LJ,
whose judgment was read by Oliver LJ, said: I have had the advantage of reading
the judgment of Oliver LJ with which I entirely agree. The Secretary of State,
we were told, seeks guidance upon the use of the expressions ‘planning unit’
and ‘a change in planning history’. It is my firm opinion that the use of the
former should be preserved and the guidance provided by Bridge LJ (as he then
was) in Burdle’s case on its application, which obviously involves a
study of the history of the land in question, followed.
The appeal
was allowed with costs in the Court of Appeal and below. The Divisional Court’s
order was rescinded and the matter was remitted to the Secretary of State for
rehearing and determination in the light of the court’s opinion.
