The Court of Appeal has handed down a significant judgment providing clarification on how fallback positions should be approached in enforcement cases, following a successful argument from Thrings.
Acting for the appellant in Titchfield Festival Theatre Ltd v SSHCLG and Fareham Borough Council, Thrings, successfully challenged the approach taken by the council, the Planning Inspectorate (PINS) and the High Court to section 57(4) of the Town and Country Planning Act 1990.
Fred Quartermain, Partner in Thrings’ Planning and Environment team, takes a look at the case, its outcome and the significance of the decision.
Section 57(4) - From enforcement notice to the High Court
The case related to an enforcement notice issued by Fareham Borough Council in 2023 against Titchfield Festival Theatre, a leading amateur theatre group, over a material change of use on its site.
Whilst it was agreed by all sides that two of the three areas covered by the notice (A and B) had a lawful use for theatre purposes, the enforcement notice alleged the third (C) was also being used for theatre purposes despite having a lawful storage use. It was operating from an enlarged planning unit.
At appeal, the theatre relied in part on a fallback position under section 57(4). This provides a limited exception to the requirement for planning permission where an enforcement notice has been issued This enables the landowner to revert to the last lawful use of the land immediately before the breach, effectively disregarding the unlawful development.
This approach was, however, challenged by the Council who claimed that the development had created a new planning unit comprising the three areas, and that this had extinguished the previously lawful use rights and prevented any reliance on section 57(4). Preferring the Council’s approach, PINS upheld the notice.
This reasoning was then upheld when appearing before the High Court, which agreed with PINS’ decision that lawful use rights could be lost through the creation of a new planning unit The court said that section 57(4) required a form of “spatial unity” between the enforcement land and the land benefitting from lawful use rights.
The Court of Appeal
Elevating the case to the Court of Appeal, Thrings – instructing Megan Thomas KC of Six Pump Court – took forward the argument that the Inspector had asked the wrong question, having relied on the consequences of the breach to reject the fallback, rather than assuming the breach of planning control had not taken place as is required for section 57(4) to apply.
This view was accepted unanimously and the appeal upheld by the three presiding Lords Justice, Lewison, Dove and Holgate – the latter of whom suggesting in the judgment that the reasoning of the inspector and High Court was “irrelevant” and that “errors of law tainted the inspector’s decision”.
The four-stage test
A key outcome of the judgment is the structured approach now set out for applying section 57(4). The four-stage test laid out by Lord Justice Holgate outlines that decision makers should:
- Identify the development alleged in the enforcement notice
- Identify the use of the land immediately before that breach
- Assume the breach did not occur
- Determine whether the preceding use was lawful
If the answer at stage 4 is yes, planning permission is not required to revert to that use.
This model provides a clear and practical framework, shifting away from the more restrictive approach seen in previous decisions.
The Court of Appeal also, very usefully, clarified that the term ‘new planning unit’ can relate to two different concepts one of which involves incompatibility with previous lawful use rights and so it must be used with caution.
What this means in practice
Following the handing down of the judgment, there are a number of implications for those involved in planning enforcement – local councils and landowners alike:
- Fallback positions are strengthened – Arguments reliant on section 57(4) can apply even where lawful uses relate to different parts of a site
- Focus returns to the statutory test – Decision makers must apply the statutory assumption and avoid relying on the effects of the breach itself
- Limits on reliance on “new planning unit” arguments – Those arguments cannot be used to sidestep s57(4)
- Enforcement strategy may need to adapt – Authorities will need to consider more carefully how notices are framed, particularly where multiple lawful uses exist across a site
Fred Quartermain said: “This judgment is not just a significant result for our client but also for the wider planning sector, bringing clarity to how section 57(4) should be applied. When applying section 57(4), ignore the breach, look at what was lawful before it, and start from there.
“The Court of Appeal’s confirmation that the exercise is a straightforward statutory one, which should not be complicated by concepts such as new planning units, is welcome news and one that anyone involved in planning should be taking note of.
“For anyone involved in planning enforcement – whether responding to a notice or considering issuing one – this judgment underlines the importance of getting the legal analysis right from the outset. Seeking specialist advice at an early stage can make a decisive difference to the outcome.”
Thrings’ Planning and Environment lawyers have extensive experience in navigating complex local and national planning policy legislation and has successfully supported commercial and residential applications through the approval and appeal processes. To find out more and for advice on your development proposals, please do get in touch.
