A burnt out site had had a lawful use for a market but was granted a planning permission for a new commercial building. When the building had been constructed the market had carried on, on the ground floor of the building and it was contended that this use was lawful. The use was successfully enforced against.
Held: The appeal failed. Lord Widgery LCJ considered the theory that once a land-owner erects a new building to replace another, that is a new use, and any established use falls: ‘For my part I also think it [Prossors] was entirely correctly decided, but I think that in extending and applying it we should tread wearily and allow our experience to guide us as that experience is obtained. Accordingly I decline to use any general terms in saying what Prossors case decides or how it applies to the present situation, but I am quite confident that the principle in Prossors case can be 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.
Where that happens – and it certainly happened in the case before us – in my judgment – 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, it is a use which can be restrained by planning control. As in Prossors case it seems to me to make no difference whether the old use sought to be restored was expressly extinguished by the new planning permission, or whether it was merely omitted from the terms of the grant in that permission. The fact that it is not authorised means that it is something which necessarily can be controlled because it is a change of use from the nil use which follows the erection of a new planning unit.’
Lord Widgery CJ
[1971] 2 All ER 793, [1971] 1 WLR 1112
England and Wales
Cited by:
Cited – Jennings Motors Ltd v Secretary of State for the Environment and another CA 27-Nov-1981
The land owners had demolished a building and erected a new building on a small part of the entire site, but without obtaining planning permission. The local authority argued that this was a change of use and a breach of planning control.
Cited – Atkins and Others v Wickington and Another Admn 9-Jul-2015
Challenge to grant of certificate of lawful use of land as motocross circuit. . .
Part Obiter – Secretary of State for Communities and Local Government and Another v Welwyn Hatfield Borough Council SC 6-Apr-2011
The land-owner had planning permission to erect a barn, conditional on its use for agricultural purposes. He built inside it a house and lived there from 2002. In 2006. He then applied for a certificate of lawful use. The inspector allowed it, and . .
These lists may be incomplete.
Updated: 22 June 2021; Ref: scu.246385
