The High Court recently considered whether a local planning authority had lawfully substituted - under s. 191(4) of the TCPA 1990 - a lawful use of another description for that claimed in the application form. Peter Wadsley considers the case.
The case of R (Freedman) v Wiltshire Council  EWHC 211 Admin (6.2.14 Bristol, Lewis J) is of interest to planning lawyers for four main reasons:
- It confirms existing authority (Panton v. SSETR (1999) 78 P. & C.R. 186) that, when considering an application for a certificate of lawful use (CLU) under s. 191 TCPA 1990, the decision maker (here an officer of the council) can substitute for the description of the use in the application another existing lawful use, provided it is satisfied that the use set out in the substituted description had been carried on for 10 years.
- However, the officer had not considered, as he should have done, whether the substituted use had continued for 10 years and had, impermissibly, aggregated with the substituted use periods of the claimed use. Hence there was not a 10 year period of use for the substituted use. The decision was therefore quashed.
- The decision also establishes that a claimed use for vehicular parking ancillary to a principal use (B1 office, in this case) is materially different from vehicular parking generally. That is, perhaps, unsurprising because an ancillary use is dependent on, and normally does not survive, the principal use.
- The decision leaves undecided (on the facts of the case it was not necessary to deal with the issue) what procedural steps the authority should take if it thinks it should substitute a different use description for the one claimed. If there are objectors, it would seem appropriate to notify them and give them, as well as the applicant, a chance to deal with the issue. Otherwise, the decision might be procedurally unfair.
The council had received an application for, inter alia, a B1 office use with ancillary parking. The evidence did not support any wider parking use. The application was heavily objected to and the officer decided to refuse the B1 use. However, he then granted a CLU for vehicular use generally; i.e., a use which would have allowed parking by the general public and not simply parking ancillary to the B1 use.
The judge found that s. 191(4) allowed the authority to modify or substitute the description given so that the use correctly reflected the existing lawful use. It was not limited to simply rephrasing the description of the use as set out in the application. If there was evidence to support the substituted use, the officer could lawfully substitute that use.
However, there was no such evidence. What the officer had apparently done (he helpfully gave detailed reasons for his decision) was to aggregate periods of ancillary vehicle parking with periods of parking generally. He considered that as long as there was parking of some description over the 10 year period a CLU could be granted for vehicular parking generally. That was incorrect because the two sorts of parking are materially different.
They are different essentially because of the difference between ancillary and primary uses. The officer had granted a CLU for a primary use (general parking) when all that had been applied for - and for which there was evidence - was an ancillary use. The Encyclopaedia of Planning Law & Practice (‘the EPLP’), Vol. 2 at P55.40 at 2-3177 observes that ‘the protection of ancillary uses  remains only so long as the ancillary link is maintained’ and that the protection is lost where the ancillary use has '.... become a separate use in its own right.'; at P55.41. Thus, the ancillary use may be lost upon the cessation of the primary use or, for that matter, a finding that the primary use does not exist, as here. The EPLP refers at the same page to the case of Barling Limited v Secretary of State for the Environment  JPL 594 where an ancillary use involving the storage of materials in connection with house building on site was lost upon completion of the dwellings.
Hence to grant a certificate in terms that are wider than necessary or which are not supported by the evidence is likely to lead to the quashing of the CLU (see R v Sheffield City Council, ex parte Russell  68 P & CR 278).
There was no suggestion of procedural unfairness, largely because the officer had allowed, and then considered, very detailed submissions on the facts from all concerned.
 As here, an ancillary use may be something of a different character from the primary use and will be protected so long as the primary use continues [see Encyclopaedia at P55.39].