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The recent cases of R (on the application of Alison Sellars) v Basingstoke and Deane Borough Council  EWCH 3673 (Admin) and R (Freedman) v Wiltshire Council  EWHC 211 provide useful clarification of the correct approach to take when making or determining an application for a certificate of lawful existing use (CLEUD).
Landowners often make such applications to obtain confirmation that their use of the land has been going on for so long that the planning authority can no longer take any enforcement action in respect of it - even though that use is not authorised by planning permission.
These are to be found in section 191 of the Town & Country Planning Act 1990, which provides:
1. If any person wishes to ascertain whether:
a) any existing use of buildings or other land is lawful
b) any operations which have been carried out in, on, over or under land are lawful, or
c) any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful, he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter.
2. For the purposes of this Act uses and operations are lawful at any time if:
a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason), and
b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force.
This case involved an application for a certificate of lawful existing use for a small area of farmland that had been used by a model aircraft club for flying model aircraft.
The Club applied to the Council for a CLEUD on the basis that it had been using the land for over 10 years and as such was entitled to a certificate confirming the use had become lawful.
The Council, having reviewed the evidence submitted with the application, and having made further enquiries was satisfied that the use of the small area of land the subject of the application had been so used and granted the certificate.
A neighbouring landowner who was upset by the noise from the model aircraft challenged the decision by judicial review. The claim was made on a number of grounds but the ground which was successful was
“that the Defendant [Council] erred in its approach to the planning unit and/or by treating as irrelevant activities which were taking place outside the red line area identified in the application. In respect of the planning unit, the Claimant [the neighbour] contends that the Defendant failed to identify the relevant planning unit or alternatively approached the relative planning unit wrongly having regard to (a) a proper analysis of the extent of the land used by the Interested party [the Club] and (b) the range of flying uses taking place on the relevant land…”
The issue was whether the applicant for a certificate is entitled to have the matter decided by reference only to the land specified in the application, or whether the Council should have established what was the planning unit and then considered the uses that had taken place within it.
Although the concept of the planning unit is fundamental to the consideration of many planning matters – particularly enquiries connected with enforcement, it is a judge made concept and is not referred to in section 191 nor indeed is it a term found anywhere in statute.
All planning practitioners will know that the planning unit can be difficult to define.
In the leading case on this, Burdle v Secretary of State  1 WLR 1207, Bridge J set out the following as criteria that should be considered:
"First, whenever it is possible to recognise a single main purpose of the occupier's use of the land to which secondary activities are incidental or ancillary, the whole unit of occupation should be considered.
"Secondly, it may be equally apt to consider the entire unit of occupation even though the occupier carries on a variety of activities and it is not possible to say that one is incidental to the other. This is well settled in the case of a composite use where the component activities fluctuate in their intensity but different activities are not confined within separate and physically distinct areas of land.
"Thirdly, it may frequently occur that within a single unit of occupation two or more physically separate and distinct areas are occupied for substantially different and unrelated purposes. In such a case, each area used for a different main purpose (together with its incidental and ancillary activities) ought to be considered a separate planning unit."
Although Section 191 makes no mention of the planning unit, an application for a certificate requires an assessment of whether the existing use has become lawful by the expiry of time for enforcement action so that no enforcement may be taken in respect of it. This is a wider question than merely establishing that the use has continued for more than the requisite 10 years.
Even though a material change of use may have occurred and continued for 10 years, planning authorities must also look at what would be the process of enforcement and
whether such enforcement could succeed.
Such enforcement would not be confined to the land on which the change of use had occurred and certainly would not be limited to an area of land identified by the occupier – it would begin by identifying the appropriate planning unit.
This case confirmed that the time limits for enforcement have no meaning outside the enforcement process and that process is imported hypothetically into s191 by the reference to the time for enforcement action having expired.
When considering whether a material change of use has occurred it is crucial that the planning unit is established since it is quite obvious that a single activity may be a material change of use in a small area but may not be material in a larger area.
In the instant case the judge considered that there were:
“a host of other possible planning units, any of which might apparently be chosen: the area used by the Club for all of its activities on the ground, the whole area used for aeronautical activities of any kind, the whole field, a group of fields where non agricultural activities take place, the whole farm, even, (though this is perhaps unlikely) the whole area over which model aircraft fly”.
It is a matter for the planning authority to identify the planning unit.
Where a larger planning unit is identified there is a greater likelihood that during the 10 years prior to the application there will have been a number of activities taking place. If that is the case there may not have been one single unauthorised use but (first) a single unauthorised use, then (for the rest of the period) a mixed unauthorised use.
In those circumstances even if the original use continues as part of the mixture it has not become unenforceable.
In R (Freedman) v Wiltshire Council  the High Court held that a local planning authority has the power under s 191(4) to substitute a different description of an existing lawful use for the use described in the application. To do so it must be satisfied on a balance of probability that the use as substituted has been carried on continuously for a period of 10 years or more.
In this case the applicant owned and let a business park. He applied for a CLEUD on the grounds that a material change of use from agricultural use to use for B1 offices and ancillary parking had occurred on a part of the park and that use had continued for over 10 years.
The Council did not consider that the evidence supported the claim in respect of the offices but did accept that there had been vehicular parking on the land.
Since there was no office use established, this parking could not be ancillary to it and therefore it determined that there would not be a breach of planning control to use the land for parking by the public at large (unrelated to the use of the business park or any specific part of it).
Accordingly it substituted the description “vehicular parking” for the “ancillary vehicular parking” applied for, and issued a certificate confirming that parking was lawful.
However, following a judicial review challenge instigated by a neighbour, the Certificate was quashed because the officer had aggregated periods of use for ancillary parking with periods of use for vehicular parking and therefore the Council had failed to consider whether, on a balance of probability, the land had been used for “vehicular parking” for a continuous period of 10 years or more.
Although the cases provide useful clarification of the approach that planning authorities should take in determining such applications, this is an area fraught with difficulty and no doubt will continue to cause headaches for both applicants and planning authorities.
This article was written by Simon Ewing.
For more information please contact Simon on +44 (0)20 7203 5330 or email@example.com