From pub to shop – the need for a lawful use

Published on
2 min read

A recent case has highlighted the need to secure an existing lawful use before relying on permitted development rights to change from that use to another.

The claimants in this recent case owned a property that historically had been used as a public house. That use ceased, however, and the planning authority issued an enforcement notice against the change of use from pub to residential.

While the provisions of s57 Town and Country Planning Act 1990 would have allowed the claimants to revert to public house use without obtaining a fresh planning permission, they did not do so. Instead, they began to use part of the property for retail purposes, and also lived there. After around 18 months of this mixed use, the claimants applied for a certificate of lawful use to "formalise" their proposed change of use of the property from "vacant public house" to A1.

The planning authority failed to determine that application, but it was refused by an inspector on appeal. In upholding the inspector’s decision, the court found that the potential lawful use of the property as a public house (under s57) was irrelevant – what mattered was the actual use of the property at the time of the certificate application. In this case, that was as a mixed retail and residential use. Such use was not authorised and so there could be no reliance on the permitted development rights.

In reaching its decision, the court held that in considering an application for a certificate of lawful use it “was not concerned with consideration of a notional use which could be exercised without the need for further permission”, although that might be relevant to an application for planning permission.

(1) GEOFFREY RICHARD NOQUET (2) JACQUELINE EILEEN NOQUET v (1) SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT (2) CHERWELL DISTRICT COUNCIL (2016)
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