In Hook v Secretary of State for Communities and Local Government  EWCA Civ 486 Lindblom LJ (with whom Peter Jackson LJ and Asplin LJ agreed), has held that a planning decision maker cannot, as a matter of law, grant planning permission to retain a building in a given use, unless they are satisfied that the building is already in that use, or would become used for that purpose if permission were granted.
The Claimant had constructed a building on her agricultural land-holding within the Green Belt without planning permission. She lived in the converted field shelter to support her plant-cultivation operation. To regularise the situation, the Claimant applied for planning permission for the "erection of a temporary worker's dwelling ancillary to the use of the land for horticultural and agricultural purposes (retrospective)". The application was promoted together with an agricultural occupancy condition.
Both the local council and the inspector on appeal accepted the description of development but held that, due to the small-scale nature of the horticultural operation, the present use of the land was not "agricultural" and so the building was not a "building for agriculture" (an appropriate use in the Green Belt). The Inspector accordingly found that the development was inappropriate development in the Green Belt and did not deal with the occupancy condition in the decision letter.
Lindblom LJ held that the Inspector was "entitled, and right" not to have regard to the condition because it had not been "first established that the proposed development was a "[building] for agriculture"" (para.51). It was only if the Inspector had been satisfied that the building proposed to be retained "was in fact, or would become, a "[building] for agriculture", the suggested condition would have bene a relevant matter to consider" (para.51).
The Court found that to have taken the agricultural occupancy condition into account in such circumstances would have "offended the principle that planning permission ought not to be granted subject to a condition unrelated to the development" (para.53).
Despite saying that the claim "does not involve any new issue of law", the Court has effectively identified a new legal limit on the power to grant retrospective planning permission to retain a building in a given use.
Even in cases where the planning decision maker accepts the description of development as accurate, the applicant will now need to "satisfy" the decision maker that the building either is in the proposed use, or "would be" (not merely could be) put to that use, in order to gain planning permission to retain a building in the terms sought.
The effect of the judgment appears to be that a person may seek planning permission prospectively with no requirement to demonstrate that they will implement the permission, but must do so in order to gain permission retrospectively.
Dr Ashley Bowes appeared for the Claimant (instructed by Jamie Beagent of Leigh Day).