Titchfield Festival Theatre Ltd v Secretary of State for Housing, Communities and Local Government & Anor (Rev1)

Factual and Procedural Background

The Appellant is the owner-operator of a theatre complex occupying converted industrial sheds comprising three interconnecting units referred to as Areas A, B and C on the outskirts of The City, located on [Number] Main Street. Areas A and B were acquired in 2010 and Area C in 2021. Area A contains two small theatres, Area C contains the larger Arden Theatre. Company B is the local planning authority. On 2 November 2023 Company B issued an enforcement notice alleging (i) an unauthorised material change of use to theatre use in Areas B and C and (ii) engineering operations to create an underground area. The notice required cessation of theatre use, restoration of excavated areas and removal of theatre fittings.

The Appellant appealed to the Appellee. At a public inquiry in May 2024 the inspector dismissed the ground (a) and ground (f) appeals, varied the compliance period under ground (g) and otherwise upheld the enforcement notice (decision issued 12 August 2024). The Appellant relied as a fallback on s.57(4) TCPA 1990, contending that Areas A and B had an accrued lawful theatre use before incorporation of Area C and that Area C had a lawful storage use. The inspector rejected reliance on s.57(4) on the basis that the unlawful development had created a new planning unit covering Areas A, B and C and that the previous planning unit comprising Areas A and B no longer existed.

The Appellant sought judicial review under s.289 TCPA 1990. Judge Cameron (sitting as Deputy High Court Judge) dismissed that appeal on 28 March 2025. Permission to appeal to the Court of Appeal was adjourned to a rolled-up hearing before this court.

Legal Issues Presented

1. Whether s.57(4) of the Town and Country Planning Act 1990 applies only where the pre-existing lawful use relates to the same area of land as the land subject to the enforcement notice (the "spatial unity" question).
2. Whether pre-existing use rights are lost when a planning unit to which they relate is replaced by a new planning unit, such that s.57(4) cannot be relied upon.

Arguments of the Parties

Appellant's Arguments

• The Appellant contended that Areas A and B had accrued lawful theatre use prior to the incorporation of Area C and that s.57(4) permitted reversion to those uses even though the enforcement notice related to Areas B and C together.
• The Appellant argued the inspector should have taken that fallback into account on the ground (a) merits and, alternatively, should have limited the remedial steps in the enforcement notice so as not to interfere with lawful use rights (ground (f)).
• In the Court proceedings the Appellant (through Attorney Thomas) submitted the inspector failed to apply the counter-factual hypothesis in s.57(4) and should not have relied on creation of a new planning unit to defeat the reverter; further that the Mansi principle protected existing use rights irrespective of spatial unity.

Appellee and Company B's Arguments

• Company B and the Appellee (represented by Attorney Bowes at different stages) relied on Stone v Secretary of State for Communities and Local Government and submitted that s.57(4) applies to the land which is the subject of the enforcement notice and that spatial unity is required; they argued pre-existing rights were lost because the unlawful development had formed a single new planning unit and changed the character of the use.
• They submitted Mansi did not alter the statutory interpretation of s.57(4) and that where pre-existing rights are lost by formation of a new planning unit Mansi does not protect those rights.
• A late contention that conditions on an earlier permission precluded reversion was withdrawn and not pursued.

Table of Precedents Cited

Court's Reasoning and Analysis

The court emphasised that s.57(4) must be applied by adopting the statutory counter-factual hypothesis established in Young: assume the development enforced against had not been carried out and then ask whether the immediately preceding use of the land subject to the notice was lawful. The correct analytical steps were set out (identify the alleged development; identify the immediately preceding use of the notice land; assume the breach had not occurred; determine lawfulness of that immediately preceding use; if lawful, planning permission is not required to revert).

The court held the inspector erred by relying on the creation of a new planning unit and a material change of use that had resulted from the unlawful development. Those features arose only because the development the notice addressed had been carried out and therefore were irrelevant when applying s.57(4)'s counter-factual. Stone was treated as fact-specific and not laying down a general rule requiring spatial unity; Mansi was held to concern drafting of enforcement notices and not the scope of s.57(4). The court concluded there was no statutory language or scheme requiring that pre-existing lawful uses must have covered the whole of the enforcement notice land or formed a single planning unit for s.57(4) to apply.

Holding and Implications

ALLOWANCE OF APPEAL (in part)

Holding: The court granted permission to appeal on Ground 1 and on Ground 2(3), allowed the appeal on those grounds, and held that the inspector's application of s.57(4) was legally flawed because she failed to apply the required counter-factual hypothesis. The inspector's decision and the Deputy High Court Judge's upholding of it were set aside on those grounds.

Implications: The enforcement notice appeal is to be remitted for rehearing and redetermination by a different inspector in accordance with this court's reasoning and on the evidence to be adduced at a fresh inquiry. The decision clarifies that s.57(4) must be applied by assuming the development had not occurred and that no additional judicially-imposed spatial-unity requirement exists beyond the statutory text. The court did not purport to lay down a novel broad precedent beyond this interpretation and directed that factual determination on remittal proceed in conformity with the statutory approach.