Although there is no mention of “the planning unit” in the statutory provisions, two recent decisions are a reminder that it is a key part of enforcement of planning controls.
Background
The planning unit is used in assessing whether a material change of use has occurred, which would require planning permission. It is the area of land or the building used as the reference point against which the change can be judged.
Extent of planning unit
The extent of the planning unit is of critical importance. The larger the planning unit, the less likely the change of use will be material.
The general rule is that the unit of occupation is the planning unit. The potential for exceptions is illustrated in a recent Scottish enforcement notice appeal decision.
The appeal related to an enforcement notice that was served on eighty-four parties, in relation to land at Achnabobane, Spean Bridge. The appellant’s position was that the enforcement notice should not have been served on them, as no development had taken place on their land.
That was rejected by the Reporter, who concluded that, in the highly unusual circumstances of the case, the appellant is one of many individual owners of a component part of a wider single planning unit. The grounds for that conclusion include:
- those who purchased plots ‘bought into’ to the concept of the site as a whole being used for camping pods, chalets or caravans, with shared access arrangements.
- the physical extent of development that has taken place across the land as a whole is significant
- whilst many plots have not been developed, the locations of the plots that have been developed, together with the access tracks and other engineering works, are widespread
- the emerging alleged use of the land stems directly from the formation and/ or upgrading of access tracks. Those tracks provide direct access to notional individual plots. This reliance on access across other private land outwith the appellant’s ownership is indicative of the appellant’s land being just one component part of something bigger.
Loss of existing use rights
The concept of the planning unit is also relevant when considering whether existing use rights have been lost.
The English High Court decision in the Titchfield Festival Theatre case involved a large building, comprising three distinct areas, referred to as Areas A, B and C. The enforcement notice alleged a breach of planning control consisting of the material change of use of B and C to theatre use. It was agreed that, prior to the alleged breach, A and B had a lawful use as a theatre.
The Inspector concluded there had been a change in character of the use, from a small theatre and ancillary uses in A and B, to a much larger theatre use over the three areas (A, B and C). That involved the formation of a new planning unit, containing a large theatre which had given rise to additional traffic movements, noise generation and parking requirements. The planning consequences of the change in the character of the use resulted in the change being material.
The High Court upheld the inspector’s decision that the land with a lawful use as a theatre (A and B) no longer existed as a planning unit because the amalgamation of the two planning units into one had resulted in a material change in the character of the use and a new planning unit. There could be no reversion to theatre use in B, because that planning unit no longer exists. The accrued use rights had been lost.
Comment
The courts often describe planning decisions as being “a question of fact and degree”. The Achnabobane and Titchfield cases show the difficult issues that can arise where answering that question involves identification of the planning unit.
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