Planning permission — Section 191 of the Town and Country Planning Act 1990 –Certificate of lawful use — Disabled landowner — Application to site mobile home on land close to dwelling — Inspector upholding refusal of certificate — Whether inspector erring in identification of planning unit — Whether lesser use required of disabled landowner — Application dismissed.
The claimant, who was severely disabled, owned a cottage, together with several strips of land that she claimed formed part of her residential curtilage. She wanted to place a mobile home on part of the land in which to house a carer. She applied to the second defendant local authority, under section 191 of the Town and Country Planning Act 1990, for a certificate of lawful use for use ancillary to her dwelling. The second defendants granted a certificate in respect of part of her land but refused it for the area in question.
On appeal, an inspector took the view that, inter alia, the claimant’s use of the land over the preceding 10 years had been insufficient to give rise to a material change of use to use ancillary to the dwelling. The first defendant allowed her appeal in part but she applied to quash the decision in respect of the remainder.
The claimant argued that: (i) the inspector had erred in his identification of the planning unit; (ii) he had made findings of fact that were not open to him or were unreasonable, in particular, that even if the land fell within the same planning unit as the cottage, stationing a mobile home on that land would not be incidental to the primary use; and (iii) he should have distinguished between the “intensity of use” required of an able-bodied and a disabled person.
Held: Application dismissed.
Any investigation of lawful use had must commence with an identification of the planning unit. Where it was possible to recognise a single main purpose for the occupier’s use of his or her land, to which secondary activities were incidental or ancillary, the entire unit of occupation fell to be considered. That could be equally apt, even where an occupier carried on a variety of activities and it was impossible to say which activity was incidental or ancillary to the other. However, where, within a single unit, two or more physically separate and distinct areas were occupied for substantially different and unrelated purposes, each area used for a different main purpose (together with its incidental and ancillary activities) ought to be considered as a separate planning unit: Burdle v Secretary of State for the Environment [1972] 1 WLR 1207 applied.
Both the identification of the planning unit and the determination as to whether a material change of use had occurred were matters of fact and degree. In the present case, the inspector’s approach and his conclusions could not be faulted.
There was no authority to support the proposition that a lesser amount of activity was required to support an application by a disabled person for lawful development use. Although the claimant’s argument claimed moral force, it would be difficult to convert such a general principle into legal rules capable of consistent application. “Material change of use” was a statutory concept. The test for determination was objective and its application was unaffected by the health or infirmity of the landowner.
Robert Levy (instructed by Leigh Day & Co) appeared for the claimants; Daniel Kolinsky (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendants did not appear and were not represented.
Eileen O’Grady, barrister
