Titchfield Festival Theatre Limited v Secretary of State for Housing, Communities, and Local Government & Anor [2025] EWHC 883 (Admin)

[2025] EWHC 883 (Admin)Case No AC-2024-LON-003215
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16 th April 2025
Before
Neil Cameron KCsitting as a Deputy High Court Judge
Between
SECRETARY OF STATE FOR HOUSING, COMMUNITES, AND LOCAL GOVERNMENTRespondentsFAREHAM BOROUGH COUNCILRespondentMegan Thomas KC (instructed by Thrings Solicitors) for AppellantAshley Bowes (instructed by the Government Legal Department) for First Respondent for The Second Respondent did not appear and was not representedHearing Hearing date: 26 th March 2025
JUDGMENT

The Deputy Judge (Neil Cameron KC):

[1]Titchfield Festival Theatre Limited (“Titchfield”) appeals under the provisions of Section 289 of the Town and Country Planning Act 1990 (“TCPA 1990”) against a decision made by an inspector appointed by the First Respondent who dismissed an appeal against an enforcement notice.[2]By an order dated 13th November 2024 HH Judge Jarman KC granted permission to appeal on Grounds 1 and 2 and refused permission to appeal on Ground 3.[3]The Appellant’s application to admit in evidence the Third Witness Statement of Kevin Fraser and exhibits also falls to be considered. The Background Facts[4]Titchfield Festival Theatre (“TFT”) is a not-for-profit community and youth theatre.[5]TFT occupy premises at 71-73 St Margarets Lane, Fareham, Hampshire, PO14 4BG (“the Site”). There is a large building on the Site. The building comprises three distinct areas, known as Areas A, B and C.[6]In 2010 TFT purchased land at 73, St Margarets Lane; the land acquired is the land known as Areas A and B.[7]By a decision notice dated 2nd May 2012 the Second Respondent granted planning permission to develop Areas A and B (“the 2012 Planning Permission”). i) The description of development is “Retrospective application for continued use of Unit A for D2 and theatre purposes and Unit B for Storage Use”. ii) Condition 1 provides:
“The use hereby permitted shall cease on or before the 2nd May 2013, unless a further planning permission has been granted before the expiry of such period. REASON: To retain planning control over the development hereby permitted and to enable the monitoring of car parking, highway safety impacts, the number of people in attendance of events and the impact of the activity on adjoining residential amenity, to enable the grant of temporary planning permission to be reviewed; in accordance with Policies CS5 and CS17 of the Fareham Borough Core Strategy.” iii) Condition 7 provides “Public performances shall only take place in Unit A and shall be limited to a maximum of 140 performances per annum. REASON: In order to protect the amenities of occupiers of nearby residential properties.”
REASON: In order to protect the amenities of occupiers of nearby residential properties.” iv) Condition 8 provides:
“The use of Unit B, identified on the OS Sitemap received by the Local Planning Authority on 23rd January 2012 shall only be used for purposes defined as falling within Classes B1 or B8 of the Town and Country Planning Use Classes Order 1987 (as amended). The use for such purposes shall be limited to between the hours of 08:00-18:00 Monday to Friday, 09:00-13:00 on Saturday and not at all on Sundays and Bank Holidays. REASON: In order to protect the amenities of occupiers of nearby residential properties.”
REASON: In order to protect the amenities of occupiers of nearby residential properties.”[8]By a decision letter dated 20th February 2013 an inspector appointed by the First Respondent allowed an appeal against the decision to grant the 2012 Permission subject to conditions and deleted condition 1 attached to the 2012 Permission (“the 2013 Appeal Decision”).[9]In 2021 TFT purchased Area C (71, St Margaret’s Lane).[10]By a decision notice dated 5th July 2022 the Second Respondent granted planning permission to extend the warehouse building (Area C) and raise the roof and extend the walls to join the warehouse building and the Area A/B building.[11]A 463 seat theatre was created within Areas B and C known as the Arden Theatre.[12]On 22nd November 2023 the Second Respondent, pursuant to the powers conferred on them by section 172 of the TCPA 1990, issued an enforcement notice (“the Enforcement Notice”).[13]The Enforcement Notice: i) Identified the precise boundaries of the land to which it related by reference to a plan (pursuant to regulation 4(c) of the Town and Country Planning (Enforcement Notices and Appeals) (England) Regulations 2002). The land was described as 71-73, St Margarets Lane, Fareham, PO14 4BG. The plan identified the buildings known as buildings B and C on the Site. ii) Identified the following as matters which appeared to the Second Respondent to constitute a breach of planning control:
“Without planning permission, • the material change of use of the Land to theatre use (sui generis); and • an engineering operation to excavate and create an underground area beneath the Land.” iii) Set out the following steps which were required to be taken: i. “Cease the use of the Land as a theatre; ii. Backfill the excavated underground area beneath the Land with a suitable inert material (such as compacted aggregate, soil, or similar) to ground level; iii. Dismantle the stage; iv. Remove the seating; v. Dismantle the lighting rig and PA or other sound equipment; and vi. Remove the resultant materials from carrying out steps (iii), (iv) and (v) from the Land except to the extent that those materials are solely being stored on the Land.”
[14]TFT appealed against the Enforcement Notice. The Enforcement Notice was appealed on the grounds set out at section 174(2)(a), (b), (e), (f), and (g) of the TCPA 1990.[15]An inspector was appointed to determine the appeal. The inspector held an inquiry in May 2024.[16]Both the Appellant and the Second Respondent submitted legal submissions to the inspector on the alleged loss of existing lawful use rights. i) The Appellant’s legal submissions included the following:
“6. Use rights can only be extinguished in a set of narrow circumstances. a) … f) Where something has occurred on the site which is so radical that it opens up a new chapter in the planning history. 7. Even if there is a new planning unit by incorporating a neighbouring building it does not follow that the result is a new chapter in the planning history. … 11. So it is a matter of fact and degree as to whether the bringing into the theatre planning unit of the neighbouring workshop and storage unit was so radical that it can be looked on as a fresh start altogether in the character of the site. 12. What has occurred at TFT does not come close to a radical change or the intention of fresh start in the character of the site. It is necessary to consider the character of the whole site.” a) … f) Where something has occurred on the site which is so radical that it opens up a new chapter in the planning history. ii) The legal submissions made on behalf of the Second Respondent included the following: “3. The LPAs position is that in those circumstances the lawful use rights which had accrued to Area B were lost. The appellant cannot revert to them. The planning unit in respect of which they had accrued no longer exists. A theatre use limited to Areas A and B cannot be reinstated without subdividing the new planning unit and materially changing the use of Area C.”
[17]On 12th August 2024 the First Respondent’s inspector issued a decision letter (“the Decision Letter or DL”). i) The inspector records that the Appellant withdrew the appeals on grounds (b), (d) and (e) (DL 5). ii) The decision on the appeal is set out at DL 1-3 “Decision 1. It is directed that the enforcement notice is corrected by: Deleting the word ‘Remove’ from step (iv) and replacing it with ‘Dismantle’. 2. It is directed that the enforcement notice is varied by: Deleting the word ‘three’ and replacing with ‘seven’ in the period for compliance with steps (ii)-(vi). 3. Subject to the correction and the variation, the enforcement notice is upheld and planning permission is refused on the application deemed to have been made under section 177(5) of the 1990 Act as amended.” Deleting the word ‘Remove’ from step (iv) and replacing it with ‘Dismantle’. Deleting the word ‘three’ and replacing with ‘seven’ in the period for compliance with steps (ii)-(vi). iii) DL 13 and 14 state:
“13. The 2013 appeal 3resulted in the use becoming permanent, through the removal of condition 1. Two theatres were built in area A, known as the Oak (188 seat capacity) and the Acorn (96 seat capacity). The parties agree that, prior to the alleged breach of planning control taking place, areas A and B had been used for a period in excess of 10 years for theatre purposes and had a lawful use as a theatre. I have no reason to disagree. 14. In 2021 TFT purchased area C (71 St Margarets Lane). Planning permission 4 was sought and granted to extend area C to connect it to area B and raise theheight of the roof. A theatre was created within areas B and C known as theArden Theatre and has 463 seats. The use of areas B and C as a theatre is thesubject of the enforcement notice. 3 Appeal Ref: APP/A1720/A/12/2186833 4 Ref P.22.0255.FP” iv) DL 78-84 state: “Other considerations 78. The appellant argued that a fallback position exists which is a material consideration. The basis for this is the accrued lawful use of areas A and B for theatre use. Therefore, it is argued, if I uphold the notice and the requirements are complied with, the use of areas A and B as a theatre could continue, and area C would revert to a storage use, through section 57(4). As a result, the Arden Theatre could be reduced in size to be wholly contained in area B. The appellant estimates that a reduced Arden Theatre would have 341 seats, and that this could run alongside the Oak and Acorn theatres. 79. The parties agree that the use of areas A and B accrued a lawful use for theatre purposes prior to the incorporation of area C. However, it needs to be established whether the reversion to the accrued use would be lawful under section 57(4). 80. It has been established through case law that a lawful use can be lost in specific circumstances. One of those circumstances is where there has been the formation of a new planning unit. Whether a new planning unit has been created is a matter of fact and degree for the decision maker to determine. 81. The parties agree that prior to the current breach of planning control, there were two planning units - the planning unit previously consisted of areas A and B and that area C previously formed a separate planning unit. They also agree that the unit of occupation is now all three areas 15. While there are three separate theatres and a number of ancillary activities taking place, they are not in physically separate and distinct areas that are occupied for substantially different and unrelated purposes. The Arden Theatre straddles areas B and C, which are no longer physically subdivided. Amongst other things, area C provides backstage space as well as dressing rooms, part of the stage and orchestra pit of the theatre. I am therefore satisfied that a new planning unit was formed when area C was incorporated into the theatre use with the construction of the Arden Theatre. 82. I have had regard to the case of Stone 16and the other authorities discussed in the legal submissions on this question in coming to this conclusion. In Stone an existing lawful use was found to be capable of being extinguished by the creation of a new planning unit in respect of the land in question. In this case, the amalgamation of two planning units into one has resulted in a change in character of the use. It has changed from a small theatre and ancillary uses in areas A and B, to a much larger theatre use over the three areas (A, B and C) and the formation of a new planning unit. The new planning unit contains a large theatre which has given rise to additional traffic movements, noise generation and parking requirements. These indicate that the character of the use has changed and that this has planning consequences, such that the change has been material. As the expansion of the planning unit has been onto land that was previously in a separate and unrelated use as storage, it is not the case that the theatre has simply been extended. 83. The implication of Stone is that careful consideration needs to be given to the wording of section 57(4). The ‘land’ which is the subject of the enforcement notice is areas B and C. The lawful use which has been established through the passage of time, relates to areas A and B, which formed one, self-contained unit. The ‘land’ does not therefore have a lawful use, as the lawful use does not include area C. The land with a lawful use as a theatre (areas A and B) no longer exists as a planning unit. I therefore conclude that section 57(4) does not permit a reversion to a lawful theatre use in area B as suggested by the appellant, because that planning unit no longer exists. 84. In terms of the alleged fallback position therefore, the lawful theatre use is restricted to area A by dint of the 2013 permission. Area B has a lawful use for storage through the 2012 permission and area C, as a separate planning unit, has a lawful use through its 1963 permission. There is therefore no possibility, even merely theoretical, of installing a theatre in Area B without planning permission. The fallback position relied upon by the appellant does not therefore exist. I note that the 2013 permission was subject to a condition restricting the use of Area B to B1 and B8 uses. It is not the case therefore that Area B could be used for the range of uses falling within Class E. It has not been put to me that there is any other fallback position in this regard. 15 Statement of Common Ground 8 May 2024 16 Stone & Stone v SSCLG & Cornwall Council [2014] EWHC 1456 (Admin)” v) At DL 106, when considering the ground (f) appeal, the inspector stated: “106. The appellant has suggested various lesser steps. The appellant argues that in order to preserve existing use right of area B as a theatre then the steps could be restricted to area C. As I have found that the accrued lawful use of area B as part of the theatre in area A has not survived the breach of planning control, this aspect of the ground (f) appeal falls away.”
The Grounds of Challenge[18]The Appellant challenges the inspector’s decision on the following grounds:[19]Ground 1 has four limbs i) The inspector has failed to give a valid or rational reason for concluding that the theatre use rights which accrued in Area B prior to the incorporation of Unit C have been lost as a result of the incorporation of Unit C. It is irrational to conclude that the change from a small theatre to a much larger theatre is a change in the character of the use. ii) Further or alternatively, she has erred in law in concluding that the creation of a larger planning unit was not an expansion of the previous existing planning unit. iii) Further or alternatively, in concluding that the new planning unit has given rise to additional traffic movements, noise generation and parking requirements she has failed to take into account that previously Unit C as a workshop and storage unit also generated traffic movements, noise generation and parking requirements and thus her conclusion that the character of the use, which has planning consequences, has changed is flawed as she has not applied the correct baseline for comparison purposes. iv) Further or alternatively, under the ground (f) appeal, lesser steps which would relate only to Area C were erroneously rejected by the inspector on the flawed basis that Area B did not have lawful theatre use rights (DL106).[20]Ground 2 has two limbs: i) The inspector has erred in law in holding that section 57(4) TCPA 1990 does not act to allow the unit B land to revert to its last lawful use (theatre use). Simply because the land enforced against was both unit B and unit C together, this does not preclude unit B from reverting to theatre use. ii) Further, the inspector has failed to take into account the Mansi principle in construing s.57(4), to which she was expressly referred. The Legal Framework Appeals made under Section 289 TCPA 1990[21]An appeal under section 289 is an appeal on a point of law. Section 289(1) TCPA 1990 provides:
“(1) Where the Secretary of State gives a decision in proceedings on an appeal under Part VII against an enforcement notice the appellant or the local planning authority or any other person having an interest in the land to which the notice relates may, according as rules of court may provide, either appeal to the High Court against the decision on a point of law or require the Secretary of State to state and sign a case for the opinion of the High Court.”
Enforcement Notice Appeals

Enforcement Notice Appeals

[22]Section 174 of the TCPA makes provision for appeals against enforcement notices (being a notice issued by a local planning authority pursuant to the power conferred by section 172 of the TCPA 1990). Section 174(2) provides:
“(2) An appeal may be brought on any of the following grounds— (a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged; (b) that those matters have not occurred; (c) that those matters (if they occurred) do not constitute a breach of planning control; (d) that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters; (e) that copies of the enforcement notice were not served as required by section 172; (f) that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach; (g) that any period specified in the notice in accordance with section 173(9) falls short of what should reasonably be allowed.”
[23]Section 177(5) of the TCPA 1990 provides:
“(5) Where— (a) an appeal against an enforcement notice is brought under section 174, and (b) the statement under section 174(4) specifies the ground mentioned in section 174(2)(a), the appellant shall be deemed to have made an application for planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control.”
Exception to the provision that planning permission is required for development

Exception to the provision that planning permission is required for development

[24]Section 57(4) of the TCPA 1990 provides:
“(4) Where an enforcement notice has been issued in respect of any development of land, planning permission is not required for its use for the purpose for which (in accordance with the provisions of this Part of this Act) it could lawfully have been used if that development had not been carried out.”
Loss of accrued use rights

Loss of accrued use rights

[25]There is a long line of authority in which the courts have considered the circumstances in which accrued planning use rights can be lost.[26]In Prossor v. Minister of Housing and Local Government (1968) 67 LGR 109 at page 113 Lord Parker of Waddington CJ (with whom the other members of the Divisional Court agreed) considered the effect on existing use rights of implementing a planning permission, stating:
“… 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, and the sole question here is: has there been a breach of that condition? It is admitted that there has, and accordingly in my judgment the appeal on this point should be dismissed.”
[27]The effect of the judgment in Prossor was considered by a Divisional Court in Petticoat Lane Rentals Ltd v. Secretary of State for the Environment [1971] 2 All ER 793. Widgery LJ (with whom the other members of the court agreed) stated (at pages 795-796):
“Some argument has been directed to the fact that in Prossor v Minister of Housing and Local Government the use of the land for the display of secondhand motor cars was expressly prohibited by a condition of the planning permission. For my part I do not think that that is a relevant factor at all. I think that precisely the sameresult would have appeared in Prossor's case if, instead of granting permission for use as a garage and then attaching a condition to take out the use for secondhand car sales which would otherwise have been included in the grant, the draftsman had chosen ina rather more complicated phraseology to specify precisely what could be done and had simply left out the sale of secondhand cars. I do not therefore regard the fact that there was an express prohibition as being anything more in that case than an indication of the fact that the draftsman found it easier to express hiswishes in that way.”
[28]At page 796 in Petticoat Lane Widgery LJ refers to explains the concept of the creation of a new planning unit:
“…Accordingly I decline to use any general terms in saying what Prossor's case 3decides or how it applies to the present situation, but I am quite confident that the principle of Prossor's case 3can 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, 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 newplanning 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, that use is a use which can be restrained by planning control. As in Prossor's caseit 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 grant in that permission. The fact that it is not authorised means 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.”
[29]In Newbury DC v. Secretary of State for the Environment [1981] AC 578 Viscount Dilhorne stated (at page 599B) that permission for operational development or a change of use can lead to the creation of a new planning unit:
“If, however, the grant of planning permission, whether it be permission to build or for a change of use, is of such a character that the implementation of the permission leads to the creation of a new planning unit, then I think that it is right to say that existing use rights attaching to the former planning unit are extinguished. It may be that in the Prossor case the erection of the new building created a new planning unit. If it did, and it is not very clear from the report, then in my view that case was rightly decided.”
[30]In Jennings Motors Ltd v. Secretary of State for the Environment [1982] QB 541 the Court of Appeal considered an appeal against a decision of the Divisional Court. i) Lord Denning MR said: a) At page 475d “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.” b) At page 476 c-d “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 on 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 on that permission, he cannot afterwards revert to any previous existing use rights.” ii) Oliver LJ (with whom Watkins LJ agreed) said a) At page 478f-g:
“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 on 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.” b) At page 480j to 481a “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 bea 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.”
[31]In John Kennelly Sales Ltd. v. Secretary of State for the Environment [1994] 1 PLR 10 Malcolm Spence QC (sitting as a Deputy High Court Judge) took the view that the Prossor principle did not apply in a case where no planning permission was granted for a change of use, stating (at pages 16-17):
“Although that sentence is rightly not challenged, I wish to stress that the language of the preceding sentence, which I re-read: ‘Accordingly I take the view that the planning history of the site started a new chapter when he brought the various areas of land together under one occupation and created a fresh planning unit’ is, in my view, incorrect; that is, if it is praying in aid the principle in Prossor v Minister of Housing and LocalGovernment (1968) 67 LGR 109. It is only in connection with that principle that it has been customary to speak of “a new chapter of planning history”
. The principle has been applied several times by the courts, almost always when the break in the history was brought about by the implementation of a planning permission for rebuilding on the site. However, in Newbury District Council v Secretary of State for the Environment [1981] AC 578, the House of Lords decided that the principle may also apply to the implementation of a planning permission for a material change of use in an appropriate case. I refer without reading them to the speeches of Viscount Dilhorne at pp588-598, Lord Fraser of Tullybelton, somewhat briefly, at pp 606-607, Lord Scarman at pp 617-618, wherein he also said that the researches of counsel had not revealed any case thus far where it had been applied to a change of use, and Lord Lane at p626. In every case their lordships refer to planning permission for the development, be it operational development or change of use. Without hearing convincing argument (and no argument at all was necessary in the present case) I am entirely unwilling to regard the Prossor principle as applicable in a case where there was not a planning permission for the change of use. It seems to me that to attempt to apply it would muddle the process of reasoning, which is required in these cases where there falls for consideration a history of changes of use without permission. It is good enough for present purposes that, plainly, as a matter of law, an established use on one of the areas of land could not bring about an established use on one or both of the other areas of land.”[32]In Stone v. Secretary of State for Communities and Local Government [2014] EWHC 1456 (Admin) Wyn Williams J accepted the submissions of counsel at paragraph 41:
“In the light of these authorities it is clear, as Mr Cameron QC frankly acknowledges at paragraph 10 of his speaking note, that an existing lawful use of an area of land which is authorised by planning permission is nonetheless capable of being extinguished by the creation of a new planning unit in respect of the land in question. …”
[33]Dr Bowes submitted that the passage in Kennelly (at pages 16-17) is inconsistent with Jennings and that the decision in Jennings is binding on this court. I accept that submission. In Jennings the building under consideration was erected without the benefit of planning permission. The principle set out by Oliver LJ at page 478f-g is not limited to changes of use authorised by the grant of planning permission. When considering, as a matter of fact and degree, whether the alteration is of such a character as to result in a conclusion that the planning status of the site has changed in a way which is inconsistent with preservation of a prior existing use it is the nature of the change which is to be considered whether or not it has been authorised by a grant of planning permission.[34]The expressions ‘new chapter in the planning history’ a ‘creation of a new planning unit’ are used interchangeably in the case law. The use of either expression was endorsed by the majority in Jennings Motors. It is clear from the authorities that accrued planning rights (whether they be those with the benefit of planning permission or otherwise lawful as defined in section 191(2) TCPA 1990) can be lost when a new planning unit is formed/a new chapter in the planning history is opened. It is for the decision-maker to determine, as a matter of fact and degree, whether the change is of such a character that the planning status following the change is inconsistent with the preservation of a prior existing use. Section 57(4) TCPA 1990[35]Section 57(4) creates an exception to the requirement set out in section 57(1) that planning permission is required for the carrying out of any development of land.[36]Dr Bowes submitted that as an exception section 57(4) should be construed narrowly. In my judgment it is not a question of construing the provision narrowly but considering whether the facts of a particular case fall within the exception when considered in the context of the detailed statutory code set out in the TCPA 1990.[37]At paragraph 49 in Stone Wyn Williams J considered the meaning of section 57(4) TCPA 1990 stating:
“It seems to me, too, that careful consideration should be given to the words of section 57(4) of the 1990 Act. In my judgment the subsection authorises “land” to be used in a manner which was lawful immediately before the development which is the subject of an enforcement notice. The “land” to which the subsection is directed is the land which was the subject of the enforcement notice.”
[38]The circumstances in which the exception created by section 57(4) apply are described in the first phrase, namely where an enforcement notice has been issued in respect of any development of land. The next phrase in the sub-section states that “planning permission is not required for its use for the purpose for which (in accordance with the provisions of this part of this Act) it could lawfully have been used if that development had not been carried out.” (my underlining). The word ‘its’ refers back to the land in respect of which the enforcement notice has been issued.[39]In my judgment the purpose of section 57(4) is to create an exception to the requirement set out in section 57(1) that planning permission is required for the carrying out of any development of land. Absent section 57(4) express planning permission would be required for a material change of use from an unlawful use (which was the subject of an enforcement notice) back to the lawful use which had been extinguished by the material change of use which is enforced against. Section 57(4) is an entirely practical provision which allows land in respect of which an enforcement notice has been issued to revert to a previous lawful use without the need to go through the process of obtaining express planning permission.[40]Given that context, and the words used in the sub-section in my judgment it is clear that the exception created by section 57(4) relates to the land which is the subject of the enforcement notice.

(i) and (ii)

[41]In her skeleton argument Ms Thomas KC addresses limbs (i) and (ii) together. I take the same approach in this judgment.[42]Ground 1 limb (i) is a reasons challenge. The Appellant accepts that when Areas B and C were combined, a new planning unit was created. The Appellant further accepts that an accrued lawful use right can be extinguished when a new planning unit is formed, and that it was for the inspector to consider, as a matter of fact and degree, whether the alteration was of such a character that a new planning unit has been formed or a new chapter in the planning history had been opened.[43]Ms Thomas accepts that the test to be applied on a reasons challenge is that set out by Lord Brown at paragraph 36 in South Bucks DC v. Porter (No.2) [2004] 1 WLR 1953.[44]Ms Thomas submitted: i) There is nothing in DL80-82 which explains how the existing use rights in Area B were lost. ii) It is not sufficient for an inspector to say that a new planning unit has been formed, as it is necessary to consider, as a matter of fact and degree, whether the alteration was of such a character that a new chapter in the planning history had begun. iii) It was inadequate for the inspector to say that there was a material change of use, she needed to consider whether there was a radical change in the planning history of the site such that lawful use rights in Area B were extinguished. iv) The facts of this case can be distinguished from those considered in Stone. In Stone the existing lawful use was a mixed use of storage of non-scrap vehicles and residential. The residential element, a dwellinghouse, was taken out of the planning unit with the remainder incorporated into a larger planning unit which was used as a commercial yard. It was found that the non-residential part of the mixed use area had lost the right to store non-scrap vehicles as the mixed use could only exist because the dwellinghouse formed part of the unit. v) In Kennelly the judge accepted a submission that it was an illegitimate use of the planning unit concept to use it to remove established use rights, and that the expansion of the use on to other parts of the site is not tantamount to discontinuance of the use on the subject site. When the theatre was expanded into Area C, theatre use continued in Area B. It cannot be inferred from the creation of a new planning unit that the planning status was inconsistent with the preservation of the prior existing theatre use.[45]Dr Bowes submitted that the reasons for the inspector’s conclusions that the pre-existing use rights to use Area B as a theatre were lost were twofold: i) Area B was incorporated into a new planning unit; and ii) In the circumstances that change gave rise to a change in the character of the site.[46]Dr Bowes submitted that Limb (ii) is an attack on the evaluative judgment of the inspector. The inspector was entitled to find that the creation of the new planning unit was not merely an expansion of an existing planning unit.[47]At DL80 the inspector identified the correct question, stating that one of the circumstances in which a lawful use right can be lost is through the formation of a new planning unit. The inspector then states:
“Whether a new planning unit has been created is a matter of fact and degree for the decision maker to determine.”
Ms Thomas accepts that there is no legal error in DL80.[48]At DL81 the inspector considers the facts and states that she is satisfied that a new planning unit was formed when Area C was incorporated into the theatre use with the construction of the Arden Theatre. Ms Thomas accepts that there is no legal error in DL81.[49]At DL 82 the inspector said she had regard to Stone and the other legal authorities discussed in the legal submissions made to her. In the second sentence of DL82 the inspector said that in Stone an existing lawful use was found to be capable of being extinguished by the creation of a new planning unit in respect of the land in question. That principle, as identified in Stone,is not dependent upon the particular facts of that case. An existing lawful use is capable of being extinguished by the creation of a new planning unit; both parties represented in this case accept that proposition. The statement made by the inspector in the second sentence of DL82 is correct and reveals no defect in reasoning.[50]In the third sentence of DL82 the inspector found that the amalgamation of the two planning units into one has resulted in a change in the character of the use. The inspector then states that the new planning unit contains a large theatre which has given rise to additional traffic movements, noise generation and parking requirements. It was on the basis of those facts that the inspector found that the character of the use had changed, and that this had planning consequences such that the change has been material. The inspector further stated that it was not the case that the theatre had simply been extended, the expansion of the planning unit had been onto land which was previously in a separate and unrelated use as storage.[51]I do not accept Ms Thomas’ submission that the inspector erred by not expressly stating that a new chapter in the planning history had begun. Although Lord Denning MR (at page 476c in Jennings Motors) said that the better ‘theory’ is the opening of a new chapter in the planning history, the majority (Oliver and Watkins LJJ) did not agree that the expression creation of a new planning unit should be discarded. Oliver LJ said that the difference between a new planning unit and a change in the planning history was largely semantic and that it would be a pity to discard the expression creation of ‘a new planning unit’ (page 480j to 481a). As a result the expressions ‘creation of a new planning unit’ and ‘the opening of a new chapter in the planning history’ continue to be used interchangeably and the inspector cannot be said to have erred by failing to refer to a new chapter in the planning history.[52]I also reject Ms Thomas’ submission that the inspector erred by failing to consider whether there was a radical change in the planning history of the site such that lawful use rights were extinguished. Lord Denning (at page 476c-d in Jennings Motors) stated that the opening of a new chapter in the planning history may take place where there is a radical change in the nature of the buildings on a site or the uses to which they are put which are so radical that it can be looked upon as fresh start altogether in the character of the site. The majority explained their view of when a new planning unit may be created/a new chapter in the planning history opened. Oliver LJ (with whom Watkins LJ agreed) said that where there has been a total change in the physical nature of the premises it is easy to infer that reliance on any prior user is abandoned, but that such an inference can also be drawn where there is no change or a less radical change in the physical nature of the site but a change in the planning status which is inconsistent with the preservation of a prior existing use, for instance subdivision into smaller units, or incorporation into a larger single unit. Whether that alteration is of such character to produce a new planning unit is a question of fact and degree. Given the approach set out by Oliver LJ the inspector cannot legitimately be said to have erred by failing to say that she had asked herself whether there was a radical change in the planning history of the site.[53]The argument, whether based upon Kennelly or otherwise, that the expansion of an existing planning unit to create a larger planning unit cannot lead to the making of an inference that the planning status is inconsistent with preservation of a prior existing use cannot be accepted. In Jennings Oliver LJ gives incorporation into a larger single unit as an example of the circumstances in which it can be inferred that the planning status has changed in a way which is inconsistent with preservation of a prior existing use.[54]In my judgment the reasoning was intelligible and adequate. The inspector posed the right question and then answered it applying the correct criteria. Whether a new planning unit has been created was a matter of fact and degree for the inspector to determine applying her own judgment. The reasons given at DL 78-84 show that, having posed the right question, the inspector examined the relevant issues and concluded that a new planning unit had been formed and that the amalgamation of two planning units into one had resulted in a change in the character of the use. That reasoning gives rise to no substantial doubt as to whether she erred in law.[55]For those reasons Ground 1 limbs (i) and (ii) are not made out. Ground 1 limb (ii)[56]Ms Thomas submitted: i) At DL82, when considering whether the alteration in the planning status of the site was of such a character as to lead to the conclusion that it was inconsistent with preservation of a prior existing use, the inspector relied upon additional traffic movements, noise generation and parking requirements but did not take into account pre-existing traffic movements, noise and parking requirements, and thereby failed to take into account a material consideration. ii) It was not necessary for the Appellant to lead evidence on pre-existing movements as the enforcement notice was not ‘attacked’ on the basis that there had been no material change of use of Areas B and C.[57]Dr Bowes submitted: i) The inspector did take account of the previous storage use of Area C as she expressly mentioned it in DL 10 and DL 78. ii) As the Appellant did not lead evidence on the comparative impacts of the existing and former use, the inspector cannot be criticised for failing, expressly, to deal with a point not advanced.[58]As a general rule it is incumbent on the parties to a planning appeal to place before the inspector the material on which they rely (West v. First Secretary of State [2005] EWHC 729 (Admin) at paragraph 42). Where there are considerations which may potentially be relevant to a decision, if they are drawn to the attention of the decision-maker, the decision-maker will have to consider those matters (Cotswold District Council v. Secretary of State for Communities and Local Government [2013] EWHC 3719 (Admin) at paragraphs 57-59).[59]The details of the traffic movements, noise generation, and parking requirements associated with the previous storage use of Area C were not put before the inspector. In my judgment the quantified details of pre-existing traffic movements, noise generation and parking requirements associated with the past storage use were capable of being material considerations but were not so obviously material that a decision maker was required to have regard to them whether specifically referred to or not.[60]The inspector gave detailed consideration to parking and highway safety issues arising from theatre use (at DL 53-72) and to noise considerations arising from theatre use (at DL 73-77). At DL 82 the inspector refers to ‘additional’ traffic movements. It is clear that, at DL 82, the inspector was taking account of the fact that traffic movements were additional to those which had existed in the past. No party advanced details of previous traffic movements, parking requirements or noise generation associated with the storage use of Area C. As a result the inspector was entitled to reach a decision on the basis of the material placed before her. The inspector carried out a careful evaluation based upon the material placed before her. As the quantified details of the pre-existing traffic movements, noise generation and parking requirements were not placed before the inspector, and as those details were not so obviously material as to require her to take them into account whether referred to or not, she did not err by failing to take them into account.[61]For those reasons Ground 1 limb (iii) is not made out. Ground 1 limb (iv)[62]Ms Thomas submitted that the inspector erred when considering the ground (f) appeal (section 174(2)(f) TCPA 1990), at DL 106, in rejecting the Appellant’s argument that the steps required to be taken should be restricted to Area C so as to preserve existing use rights in Area B.[63]Dr Bowes submits that limb (iv) is entirely parasitic on Ground 1(i) succeeding. He submits that if Area B does not have existing use rights for a theatre then Ground 1(iv) falls away.[64]At DL 106 the inspector states that as she has found that accrued lawful use rights of Area B as part of theatre in Area A have not survived the breach of planning control, the Appellant’s argument based upon preservation of existing use rights falls away.[65]The inspector’s approach at DL 106 cannot be faulted. If, as the inspector found, the alteration resulting from the creation of a new planning unit was such as to change the planning status in a way which was inconsistent with the preservation of the prior existing use, the premise upon which this aspect of the Appellant’s submissions on ground (f) was based was not made out.[66]For those reasons Ground 1 limb (iv) is not made out. Ground 2[67]In her submissions Ms Thomas addressed both limbs of Ground 2 together. I take the same approach in this judgment.[68]Ms Thomas submitted: i) An ordinary reading of section 57(4) TCPA 1990 does not require that the land subject to an enforcement notice be the same size as the land on which there are existing use rights. Section 57(4) refers to any part of the land; there is no definite article (the) before the word ‘land’. ii) The ratio of Stone is not there must be spatial unity between the enforcement notice land and the land which has existing use rights. iii) The inspector was referred to the Mansi principle but omitted to consider the principle in relation to the interpretation of section 57(4) TCPA 1990. iv) The inspector misled herself in DL 83 by stating that the lawful use of Areas A and B had been established through the passage of time. That was incorrect as Area A had the benefit of an express planning permission.[69]Dr Bowes submitted: i) The Inspector identified and correctly applied the ratio of Stone at DL 83 namely there must be a spatial unity between the enforcement notice and the area which was in a pre-existing lawful use. ii) The judgment in Mansi v. Elstree RDC (1965) 16 P & CR 153 does not disturb the analysis in Stone. The effect of Mansi is that an enforcement notice must not be drafted (and in any event must be interpreted so as to avoid) to prohibit uses which were not enforced against.[70]At DL 83 the inspector stated that: i) the land which is the subject of the enforcement notice is Areas B and C. ii) The lawful use (established through the passage of time) relates to Areas A and B. iii) The land subject to the enforcement notice (Areas B and C) does not have a lawful use. iv) The land with a lawful use as a theatre (Areas A and B) no longer exists as a planning unit. v) Section 57(4) does not permit reversion to a lawful theatre use in Area B as the planning unit no longer exists.[71]I have considered the meaning and effect of section 57(4) at paragraphs 35 to 40 in this judgment.[72]I do not accept Ms Thomas’ submissions on the construction of section 57(4).[73]An enforcement notice relates to the land identified in the notice. Section 174(2)(a) TCPA 1990 provides that an enforcement notice shall be served on the owner or occupier of the land to which it relates. Section 173(10) of the TCPA 1990 provides that an enforcement notice shall specify such additional matters as may be prescribed. Regulation 4(c) of the Town and Country Planning (Enforcement Notices and Appeals) (England) Regulations 2002 provides that an enforcement notice shall specify the precise boundaries of the land to which the notice relates, whether by reference to a plan or otherwise. Land as referred to in section 57(4) is the land in respect of which the enforcement notice has been issued (as held by Wyn Williams J at paragraph 49 in Stone).[74]The absence of the definite article (the) before the word land in section 57(4) does not support Ms Thomas’ submission that the ‘land’ should be read as meaning any part of the land. The first phrase of section 57(4) is describing the circumstances in which the subsection applies, namely where an enforcement notice has been issued in respect of any development of land. It would make no sense to add the word ‘the’ before land, and it cannot be said that the absence of the definite article means that the subsection should be read in the way advocated by Ms Thomas.[75]The ratio in Stone is clear. Wyn Williams J stated at paragraph 49:
“The “land” to which the subsection is directed is the land which was the subject of the enforcement notice.”
[76]The fact that, in Stone, the facts were different to the present case, and in particular that a planning unit which had been in mixed use for residential use and for storage of non-scrap cars had ceased to exist, do not have a material bearing on the statement of principle in paragraph 49.[77]In my judgment, for the reasons I have given: i) The provisions of section 57(4) apply when an enforcement notice has been issued in respect of any development of land. ii) The land referred to in the first phrase of section 57(4) is the land to which the enforcement notice relates. iii) The exception (to the need to obtain planning permission) created by section 57(4) relates to the land to which the enforcement notice relates.[78]The principle established in Mansi (and set out at page 161 in that case) is that, in the context of enforcement action, the planning acts gave no power to the local planning authority to restrict or remove an established lawful use (in that case by setting out steps required to be taken in an enforcement notice). If a pre-existing use is lost by the creation of a new planning unit/opening of a new chapter in the planning history there will be no established lawful use. If a pre-existing lawful use has not been lost and the steps set out in the notice prevent it continuing, a ground (f) appeal can be allowed and the enforcement notice can be varied.[79]The inspector’s analysis at DL 83 reveals no error of law as: i) The inspector was right to say that land which is subject to the enforcement notice was Areas B and C and that the lawful use relied upon relates to Areas A and B. It makes no material difference to the inspector’s analysis whether the lawful use relied upon was a use which became lawful through effluxion of time or through the grant of an express planning permission. ii) The inspector was right to say that the land subject to the enforcement notice did not have a lawful use as the lawful use does not include Area C. iii) Given her findings on the creation of a new planning unit (at DL 81) the inspector was right to say that Areas A and B no longer exists as a planning unit.[80]For those reasons ground 2 is not made out. Relief[81]Dr Bowes argues that in the event that any of the grounds are made out the court should decline to quash the decision as the inspector’s decision would necessarily have been the same (Simplex (GE) Holdings Ltd. v. Secretary of State for the Environment [2017] PTSR 1041 at page 1060).[82]For the reasons I have given I find no ground of challenge is made out and therefore the issue of relief does not arise.[83]The Appellant applies for permission to admit the third witness statement of Kevin Fraser dated 7th March 2025. In that witness statement Mr Fraser gives evidence as to the use made of Area B for performances from 2011 to 2017. In support of this application it is said that the reason for the late filing of this evidence is that Mr Fraser suffered from ill health and was therefore unable to complete his witness statement and to file it within the time allowed.[84]It is said on behalf of the Appellant that the application to admit that evidence is made in response to the argument set out at paragraph 57 of the First Respondent’s Detailed Grounds of Defence that if any of the grounds are made out the Court should exercise its discretion to refuse relief as the outcome would necessarily have been the same as: i) Condition 7 attached to the 2012 Planning Permission confines public performances to Area A and therefore to use Area B for public performances would not be lawful. ii) The inspector would have been bound to conclude that that there was no fallback use of Area B as a single unit of performance.[85]Ms Thomas argued that the inspector would not have been bound to conclude that there was no fallback use for Area B as: i) The operative planning permission for Areas A and B was the permission granted by the 2013 Appeal Decision and the 2013 Appeal Decision did not repeat condition 7. During the course of the hearing Ms Thomas informed the court that this argument was no longer pursued. ii) Performances had been continuing for over ten years prior to the date of the issue of the enforcement notice and had therefore become lawful.[86]Dr Bowes argues that the court should decline the Appellant’s invitation to engage in the merits of the matters set out in Mr Fraser’s third witness statement. He submitted that it is not the function of the court to determine whether or not a valid condition is enforceable by reason of having been breached for over ten years.[87]Given that it was Mr Fraser’s ill health which prevented his third witness statement being submitted on time, and as the witness statement can be admitted without causing prejudice to the Respondents, I admit the witness statement.[88]As I have already stated the question of relief does not arise as no ground of challenge is made out. If the question of relief had arisen I agree with the submissions made by Dr Bowes that the court should not engage in the merits of whether or not the Appellant would have made out a case that no enforcement action could be taken against use of Area B in breach of condition 7 as the time for taking enforcement action had expired. Conclusion[89]For the reasons I have given the appeal is dismissed.