About the size of it

From time to time there is debate about the size of a planning unit so we thought it might be useful to report a recent appeal case in which the subject was addressed (DCS Number 400-022-610). In this case the inspector ruled that an enforcement notice which required the cessation of motocross activities at a former quarry in south Yorkshire was not defective, despite the appellant’s claim that the planning unit was not identified correctly.

The appellant argued that the notice was invalid because: the red line on the enforcement notice plan showed a vast area of land; there was no specific reference to exactly where the alleged motocross activities were taking place, and; the red line covered areas where no breach had ever taken place. In addressing this point the inspector set out the law on the planning unit comprehensively so we have set out his text in full:

“The Courts use the concept of the planning unit to determine the area of land to be considered when identifying the primary use of land, (and its ancillary uses), and whether any material change of use has occurred. In the case of William Newland v SSCLG and Waverley BC QBD 22 December 2008, HHJ Hickinbottom said the identification of the relevant planning unit was quintessentially a matter of fact and degree for the primary decision maker, (also see Johnstone v Secretary of State for the Environment (1974) 28 P&CR 424 and Church Commissioners for England v Secretary of State for the Environment [1995] 2 PLR 99).

In the case of Burdle v SSE [1972] 1 WLR 1207, Bridge J. determined that there were three criteria to determine the planning unit:

  1. When occupier uses for single main purpose to which secondary activities are incidental, the unit of occupation to be taken as the planning unit.
  2. When a variety of activities none incidental or ancillary to the other, again consider the entire unit.
  3. When two or more areas occupied for substantially different purposes. Each area so used is a separate planning unit.

Bridge J. said: “It may be a useful working rule to assume that the unit of occupation is the appropriate planning unit, unless and until some smaller unit can be recognised as the site of activities which amount in substance to a separate use both physically and functionally.”

In the case of Thomas David (Porthcawl) Ltd and others v Penybont Rural District Council and others [1972] 3 All ER 1092 5 Oct 1972, the Appellants had complained that an enforcement notice had been served on an entire plot of land when the activities complained of, sand and gravel extraction, had occurred on only two smaller parts. There it was held that the site should be looked at as a whole.”

The inspector found it clear from these decisions that, where there is no evident demarcation between activities or works, the unit of occupation is generally to be taken as the planning unit, even where there may be a nil use on part of the land. Particularly where access roads and paths are shared and there is some flexibility in the location of activities, he reasoned, there cannot be a sensible separation of the site into different planning units. In his view, it was entirely appropriate for the council to have identified the entire enforcement notice red line site as the planning unit where a mixture of activities and engineering operations were taking place.

The inspector concluded that the notice appropriately identified the planning unit and correctly described the mixture of uses. It was a valid notice, he ruled.

So that’s about the size of it.

Section 4.324 of DCP Online concerns the planning unit concept.