Titchfield Festival Theatre: Court of Appeal clarifies the counter-factual hypothesis in section 57(4) enforcement reversions

The Court of Appeal has allowed an appeal brought by Titchfield Festival Theatre Limited, finding that both the planning inspector and the High Court had fundamentally misapplied section 57(4) of the Town and Country Planning Act 1990 when assessing whether the appellant could revert to pre-existing lawful uses following the issue of an enforcement notice.

The theatre operator owned three interconnecting light industrial units — Areas A, B and C — on the outskirts of Titchfield in Hampshire. Areas A and B had a long-established lawful use for theatre purposes, confirmed by planning permission granted in 2012 and upheld on appeal in 2013. Area C, acquired separately in 2021, had a lawful use for storage under a 1964 permission.

Fareham Borough Council issued an enforcement notice in November 2023 alleging an unauthorised material change of use of Areas B and C to theatre use, together with unlawful engineering operations. At the subsequent public inquiry, the appellant sought to rely on section 57(4) as a fallback, arguing that if the notice were upheld the lawful theatre use on Area B and the storage use on Area C could lawfully be resumed without fresh planning permission.

The inspector's error

The inspector rejected that argument on the basis that the unlawful development had created a new, enlarged planning unit encompassing all three areas, that this amounted to a material change of use, and that the previous planning unit comprising Areas A and B no longer existed. She concluded that the enforcement notice land (Areas B and C) therefore had no lawful use to revert to.

The High Court upheld that reasoning, placing particular reliance on Stone v Secretary of State for Communities and Local Government [2014] EWHC 1456, which both the inspector and the judge had read as authority for the proposition that section 57(4) requires spatial unity between the enforcement notice land and the land on which pre-existing lawful use rights existed.

The Court of Appeal's analysis

Holgate LJ, with whom Lewison and Dove LJJ agreed, held that the inspector's reasoning was irrelevant to section 57(4) and disclosed a failure to apply the statutory hypothesis which that provision requires.

The Court confirmed, applying the House of Lords' decision in Young v Secretary of State for the Environment [1983] 2 AC 662, that section 57(4) operates by requiring the decision-maker to assume that the development alleged to constitute the breach of planning control has not been carried out, and then to ask what the lawful use of the land was on that counter-factual basis. The new planning unit and the material change of use identified by the inspector arose because of the very development which section 57(4) required to be disregarded. Those matters were therefore incapable of defeating the right of reverter.

Stone was distinguished on its facts. In that case the right of reverter had depended upon a 2009 mixed-use planning permission that extended beyond the enforcement notice land and was incapable of being exercised without the residential element that had been removed by a variation of the notice. That peculiarity of Stone had no bearing on the present case, where the immediately preceding lawful uses — theatre in Area B, storage in Area C — were straightforward and unencumbered. The Court rejected the Secretary of State's submission that section 57(4) requires "spatial unity" between the notice land and the area to which pre-existing lawful use rights attach, noting that no such requirement appears in the statutory language and that Pioneer Aggregates [1985] AC 132 cautions against judicial addition of limitations not found in the legislation.

Lewison LJ added that the question was simply what would have been the position had the unlawful development never occurred. On the agreed facts, Areas A and B would have retained their lawful theatre use and Area C its lawful storage use. Whether a new planning unit had been created in the real world was, in his view, entirely beside the point.

Outcome and remittal

The appeal was allowed on grounds 1 and 2(3). The inspector's decisions on both the ground (a) planning merits and the ground (f) remedial steps appeal were tainted by the same error of law. The enforcement notice appeal is remitted to a fresh inspector for redetermination at a new public inquiry.

The judgement also offers useful clarification of the distinct functions of the "planning unit" concept in Burdle and the "new planning unit" or "new chapter in the planning history" concept from the Jennings Motors line of authority, warning against conflating the two in enforcement contexts.

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