Abandonment and Planning: When is a use a lost (ca)use?

Abandonment of a use in planning terms is a sticky subject and often contentious. Just because a building is abandoned, doesn't mean the planning use is abandoned also. 

Whether a use can be resumed can be the determining issue in whether a development is possible and could be a critical point in whether a property is a viable acquisition. This is illustrated by a recent appeal decision about a former bingo hall.

Former Lyceum Cinema

The Council had refused planning permission for the use of the vacant building as a cinema, concert hall and restaurant. Therefore the developer had to rely on the previous bingo hall (Class 11) use to enable the refurbishment of the property for other Class 11 (assembly and leisure) uses, including as a cinema and concert hall.

In this instance the Property had been used as a cinema until 1981 and a bingo hall until 2006. The building had since laid empty and unused for a period of 15 years and had fallen into some disrepair. The reporter found that the use had not been abandoned despite this, on the basis that the building was still capable of being used as a bingo hall and there had been no intervening use (despite the council's allegations otherwise).

Abandonment

The difficulty with the concept of abandonment is that it revolves so much on the facts.

English courts have established 4 factors for determining abandonment - the physical condition of the buildings; the period of non-use; whether there has been any other intervening use; and the owner’s intentions – but below are some other things to consider when assessing whether a use has been abandoned:

1. Is the property capable of accommodating its former use?

A building that has laid vacant for some time may well have fallen into disrepair and will require (sometimes significant) refurbishment works. The key question is whether the use is still capable of being re-commenced at the property. Even if it may involve considerable financial or technical challenges, if it's possible, it should not necessarily be considered abandoned.

1. Was the former use a lawful use?

This may seem slightly obvious, but a previous use that was unlawful, cannot be lawfully resumed. The resumption of any such unlawful use (assuming it hadn't surpassed the 10 year period) would also re-start the 10-year clock for potential enforcement. And remember, the deemed lawfulness of a use that does not benefit from planning permission requires the continuous use without enforcement.

1. Have alternative uses been investigated?

Although developers may have investigated alternative uses for a vacant property, this does not result in a use to be abandoned. For example, with the bingo hall, the new owner had looked into (and commissioned architects to propose designs for) developing the property for various uses, both within and without Class 11 use. The reporter made it clear that these proposed alternative uses related to the future use, whereas the key question is that of the existing use.

It would likely be the same even if planning permission is granted for a change of use, but that permission was never implemented. Technically the existing use has not changed until the permission is implemented, although the application for and grant of permission could demonstrate sufficient "intention" to abandon the use and/or evidence to suggest resumption is no longer possible.

Another scenario of interest would be temporary permissions. If a temporary permission (for storage, for example) is granted and after the relevant time, the temporary use ceases, it would also be right to suggest that this doesn't prove abandonment. The use of the property has lawfully reverted to the previous use.

1. Is the developer's "intention" an objective test?

The courts have confirmed that it is not the subjective intention of the developer that can prevent a use from being abandoned. Instead it is an objective test based on various factors. This links back to the use being "capable" of being accommodated. If a developer's intentions are unrealistic and stubborn to the facts, then on an objective basis the use will likely have been abandoned.

1. Will a previously granted CLUD be proof of a use not being abandoned?

CLUDs are not conclusive. It is well-established that a CLUD is only stating the lawfulness of the use at the time at which the certificate is granted. Any change in circumstance following the certificate of lawfulness may render the certificate "out of date". Events and (in)actions after a CLUD is granted can still abandon a use (although obviously usually a reasonable period of time is likely to have passed since the CLUD was granted for that to happen).

So if you're coming to a vacant property thinking of resurrecting it to its former glory, it's important to think whether the previous use is still available.