England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE OUSELEY)

		Royal Courts of Justice Strand London WC2 Wednesday, 17th July 2002

Wednesday, 17th July 2002

1. LORD JUSTICE SCHIEMANN: Before the court is an appeal by the Rugby Football Union from a judgment of Ouseley J in a planning matter. The judge had upheld the finding of an inspector appointed by the Secretary of State. The background is usefully set out in paragraphs 2 to 9 of the judge's judgment, which reads as follows:

"2. The certificate was sought in respect of an unlimited number of concerts. The Council failed to determine the application within the normal eight week period. On 11th July 2000 an appeal was lodged against that non-determination pursuant to section 195 of the Act. The appeal was dismissed by the Secretary of State's appointed person in a decision letter dated 19th January 2001. The RFU under section 288 of the 1990 Act now challenges his decision.

THE LAW

3. Section 192 of the Town and Country Planning Act 1990 provides:

'(1) If any person wishes to ascertain whether -

(a) any proposed use of buildings or other land... would be lawful, he may make an application for the purpose to the local planning authority specifying the land and describing the use or operations in question.

(2) If on an application under this section the local planning authority are provided with information satisfying them that the use or operations described in the application would be lawful if instituted or begun at the time of the application, they shall issue a certificate to that effect; and in any other case they shall refuse the application.'

4. A proposed use will be lawful if, among other things, it does not amount to 'development' within the meaning of section 55 of the 1990 Act, since in those circumstances permission will not be required for it by virtue of section 57 of the Act.

5. Section 55(2) of the Act provides:

'The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land...

(f) in the case of buildings or other land which are used for a purpose of any class specified in an order made by the

Secretary of State under this section, the use of the buildings or other land or, subject to the provisions of the order, of any part of the buildings or the other land, for any other purpose of the same class;'

6. Article 3(1) of the Use Classes Order provides that:

'Subject to the provisions of this Order, where a building or other land is used for a purpose of any class specified in the

Schedule, the use of that building or that other land for any other purpose of the same class shall not be taken to involve development on the land.'

7. Class D2 of the Schedule to the Use Classes Order includes the following uses:

'Class D2. Assembly and leisure

Use as -

(a) a cinema,

(b) a concert hall,

(c) a bingo hall or casino,

(d) a dance hall,

(e) a swimming bath, skating rink, gymnasium

or area for other indoor or outdoor sports or recreations, not involving motorised vehicles or firearms.'

THE FACTS

8. It was agreed before the appointed person by the London Borough of Richmond Upon Thames and before me by the Secretary of State that the Twickenham stadium was within Class D2(e) of the Schedule to the Use Classes Order, although as the argument developed before me, it became clear that there was some disagreement as to the basis upon which it was there. It was however at least within Class D2(e) as 'an area for other outdoor sports'.

9. The RUF submitted that the Secretary of State had erred in law in concluding that the proposed use as a concert venue fell outside the scope of 'use as a concert hall' within Class D2(b) of the Use Classes Order and, alternatively, erred in law in concluding that the proposed use fell outside the scope of 'an area for other outdoor sports or recreations.'"

2. Two issues arise on this appeal. The first was termed the concert hall issue by the judge. He said this at paragraph 13:

"On the first issue, which was whether the proposed use would fall within class D2(b) of the Schedule to the Use Classes Order as a concert hall, the appointed person said this:

'Taking first the appellants' argument that the proposal would amount to use as a concert hall, in Class D2(b), I accept that the UCO as a whole can apply both to buildings and to other land; and I am also aware that the categories in Class D2(a) to (d) do not refer primarily to types of buildings but to types of use. Nevertheless, the use in Class D2(b) is defined specifically as "use as a concert hall", not more generally as use for holding concerts or as a concert venue, and it seems to me that, having regard to the ordinary meaning of the words, a use as a concert hall can only take place in a location having characteristics which enable it to function in the nature of a hall. The dictionary definition of "hall" is a large room or chamber. I therefore tend to agree with the

Council's view that use as a hall of any sort must necessarily be restricted to a building or part of a building that is enclosed both vertically and horizontally. For example, a building designed for use as a theatre, cinema or assembly hall could, in my view, function as a concert hall with little or no adaptation; similarly, any large enclosed building, such as a warehouse or aircraft hangar, could have characteristics enabling it to be used as a concert hall, within the scope of Class D2(b).

6. By contrast, a mainly open stadium like Twickenham does not, in my view, possess the necessary degree of enclosure to function as a concert hall, and I do not consider that the inclusion of both indoor and outdoor activities in Class D2 as a whole is sufficient to extend the use defined very precisely in Class D2(b) to that extent.'

In paragraph 20 the judge goes on:

"... the question is: for the purposes of the Use Classes Order, is it sufficient to focus on the purpose or use to which concert halls are put, ie holding concerts? Or is it necessary to focus on the question of whether Twickenham has the physical characteristics of a concert hall, when concerts take place there?

21. ... The natural structure of the Use Classes Order means that in order to qualify for the change from a use within D2(e) to the use within D2(b), the change from 'use as an area for other outdoor sports' to 'use as a concert hall', the reference to 'use for a purpose of the same class' within section 55 and article 3 of the Use Classes Order simply requires that the language of the two applicable paragraphs be satisfied. Those are the purposes in this context. The appointed person, therefore, correctly asked the question: when concerts take place there, is Twickenham used as a concert hall? To which he correctly answered that it was not, because it lacked an essential physical characteristic - it had no roof. It is insufficient for it simply to be a concert venue. The building is not and never could be used as a concert hall because it lacks the essential characteristic for a concert hall, namely a roof.

22. I consider that in order to be able to take advantage of the changes within the Use Classes Order it is necessary for the essential physical characteristics of (in this case) a roof to be present in order for the change of use to be exploited...

23. I accept that some classes or purposes within the Use Classes Order use the different phraseology of, for example, in Class D1 'use for the provision...', or within Class A1 under the rubric of 'shop':

'Use for the following purposes -

(a) for the retail of goods...

(b) as a post office.'

24. That distinction, however, reinforces my view that one looks simply to see if the requirement of the particular paragraph is satisfied: is this stadium, therefore, used as a concert hall? The question is not: is this a building which although not a concert hall is nonetheless being used for the purposes for which a concert hall is used? The Use Classes Order would simply have referred to use 'for concerts' or 'as a concert venue.'

26. I do not consider that this approach deprives the Use Classes Order of effect in relation to changes from outdoor sports. The Use Classes Order permits the change of sport where it might be thought that the change of sport involved a different use because there could be different impacts from the relative popularity of the sports involved, or from degrees of professionalism or, for example, from the use of an area for training as opposed to playing matches."

3. Mr Lockhart-Mummery QC attacks this judgment as follows. He took us through the history of the Use Classes Order since 1948 and stressed that the wording reflected contemporary perceptions as to what could be allowed to escape the planning approval process which otherwise might have required such approval. He emphasises that planning is concerned with land use. He submitted that in planning law it is always necessary to identify the purpose of a land use in order to identify its status. He submits that, therefore, both in section 54(2)(f) and in Article 3 of the Use Classes Order one must answer the question "for what purpose will the appeal site be used after the proposed change of use?" He submitted that when one asks that question in the context of the present case the rugby football ground will be used for the purpose of holding concerts there.
4. It is a simple and, as the judge recognised in giving leave, an arguable point. Like the judge I think it wrong essentially for the reasons which he gave. The function of the Use Classes Order is to enable things unlikely to raise substantial planning issues to slip through without control. The simplest and in my judgment the correct way of approaching the Use Classes Order in a case like the present is to establish the use class in which the current activity is to be found - in the present case class D2 - and then see whether the proposed activity can be found in the same use class. One should assume that the proposed activities are taking place and ask one self "is the appeal site being used as a concert hall?" That is the proper question to ask. In the present case the natural answer to that question is "no".
5. Like the judge I fully accept that some other classes of the UCO pose the question in a different form, and it there will become necessary to ask the question in the form set out in the relevant use class. The questions are different in form as well as in content. There are two main types of formulation of the question to be found in the Order. I give three examples of each. Thus Class A1 poses the question "is the land to be used for the retail sale of goods?" Class B1(c) poses the question "is the land to be used for an industrial process?" Class D1(c) "is the land to be used for the provision of education?" On the other hand Class C1 poses the question "is the land used as a hotel?" Class D1(f) "is the land used as a public library or public reading room?" And class D2(b) imposes the question "is the land used as a concert hall?" So far as that latter category of three questions is concerned the fact that someone makes his field available for overnight tenting does not cause the land to be used as a hotel, the fact that someone is good enough to display his books in a field does not mean that the field is used as a public reading room; and the fact that someone is good enough to let his field be used for a band giving military concerts does not cause that land to be used as a concert hall.
6. Like the judge I consider that the fact that the Use Classes Order is not consistent in the way it defines use classes is a point against the appellant.
7. I turn now to the second issue which the judge headed "Outdoor Sport and Recreations". He said in paragraph 31:

"The second issue was whether Twickenham stadium as at least an area used 'for other outdoor sports' (ie rugby) would be used as a venue 'for other outdoor sports or recreation' when used for concerts.

32. The appointed person said:

'The appellants submitted that the public enjoyment of concerts constituted a recreation. I agree that it is certainly a recreation, but the issue here, as they recognise, is whether it is a recreation within the context of Class D2(e). The use of the term 'other... recreations' (my emphasis) [not the appointed person's emphasis] indicates to me that the scope of Class D2(e) only extends to recreations which are of a similar nature to those which might take place in a swimming bath, skating rink or gymnasium. Otherwise, use as a swimming bath, skating rink or gymnasium might be expected to have been included in separate sub-paragraphs of the Class, like each of the uses in paragraphs (a) to (d), and use as an area for other indoor or outdoor sports or recreations would not have been included with these specific activities."

8. There are then further quotations from the Inspector.
9. The judge says at paragraph 42:

"I did not find this issue straightforward. My mind changed a number of times. However, I have come to the firm conclusion that... The focus of Class D2(e) is on sport or physical recreation. The words 'or other outdoor recreation' need to be read in the context of Class D(2)(e) which is clearly dealing with physical activities rather than hobbies, interests, or recreational activities of an artistic or creative nature. It cannot cover all those ways in which a person can enjoy recreation in a broad sense without becoming so broad as to render the rest of Class D2 otiose, or creating quite remarkable possibilities for uncontrolled changes of use. It would be inappropriate so to interpret the extension of the Use Classes Order in 1987.

43. I also conclude that the words in question should be seen as relating to that group of activities which it extends, which are those in Class D2(e), rather than to all those in Class D2 as a whole. The connotation and context of D2(e) is sport and physical recreation, the role of physical recreation being to cover those many situations where the physical activity would not be described as a sport because, for example, it might be done alone for private pleasure, I instance for these purposes a jogging track. This approach fits with the approach of the Court of Appeal in Millington [v Secretary of State for Environment, Transport and Regions and Shrewsbury v Atcham Borough Council [2000] JPL 297].

44. I do not consider therefore that the presence of spectators is material to Class D2(e). Twickenham is within Class D2(e) because it is an area used for outdoor sport, in this instance rugby union. It is not the presence of more or less passive spectators which brings it within the purpose of Class D2(e),. They may enjoy watching rugby. For them, in common sense language, watching rugby may be one of their recreations but they are not themselves engaged in physical recreation. Twickenham is not, for Class D2(e) purposes, an area used for outdoor recreation by spectators.

45. So far as concert performers are concerned it is only reasonable to assume that those contemplated here are professional musicians. No doubt they derive much pleasure from their own music-making but they are not for that reason alone engaged in recreation. Nor are they engaged in physical recreation however much the performance may make demands on their stamina. Their activities do not bring Twickenham within the scope of other outdoor recreation.

46. The concert goers are the equivalent to the rugby spectators for these purposes, but their enjoyment of the music or spectacle does not constitute 'other recreation' for the purposes of Class D2(e) any more than does the rugby spectators' enjoyment of rugby. The reason why Twickenham stadium is within Class D2(e) is because sport is played there [my emphasis] and not because sport is watched [my emphasis] there. The reason why the concerts are not within Class D2(e) is that the concert performance is neither sport nor recreation, nor is watching the recreation.

47. The distinction between watching and playing sport means of course that an important aspect of Twickenham stadium is disregarded. However, the distinction is a perfectly rational one in the context of the Use Classes Order. It is perfectly rational to focus on physical activity rather than on watching physical activity. If Twickenham had to be approached as an area used for watching professional sport it would not be within Class D2(e) at all."

10. I ought to add something in relation to Millington where I delivered the only substantive judgment. One of the issues in that case was whether the landowner could rely on the Use Classes Order in defence of an Enforcement Notice which charged him with using his land for the purposes of selling wine and light refreshments and for visits of fee-paying members of the public. In order to advance this argument he needed to establish that his previous use fell within Class D2 and was the use of an area for recreations. The previous use consisted of visits by members of the public to look at the remains of the old Roman town of Viriconium in Shorpshire. The Inspector held that such visits may have had a recreational component but having heard that a good number of the visitors were archeologists and students, the main purpose of the visit was probably out of academic interest. The Secretary of State agreed with the Inspector that he did not regard the presence of an ancient monument on the land and the particular interest shown therein by visitors as a recreational use. This court held that the Secretary of State was entitled to take that approach. I said that the Secretary of State was perfectly justified in finding that:

"In the context of the use of the words in the UCO, what had gone on in the days before the vineyard was established did not amount to the use of the land for the purposes of recreation."

11. Mr Lockhart-Mummery criticised the approach of the judge on two main grounds. 1. An eiusdem generis approach was not an appropriate approach to construing the Use Classes Order which had grown up over the years. I have some sympathy with the argument but would reject it. The eiusdem generis approach certainly appealed to the Court of Appeal in Millington. 2. The judge erred in incorporating some physical requirement into the concept of recreation in Class D2. Mr Lockhart-Mummery submitted that it would have been easy for the legislator to have inserted such an adjective and yet he did not do so. He submitted that a much wider meaning could be given to "recreation" so as to embrace bridge tournaments, stamp collecting, chess competitions and the like. I accept that the word is capable of having wider meanings. So did the judge. I accept that the general heading of Class D is "assembly and leisure", which undoubtedly cover some of the D2 activities such as use as a bingo hall. But I agree with the judge that in the present context, which is D2(e), it is right to incorporate some physical effort to the phrase "recreation", otherwise it is so wide as to be an improbable planning tool. Mr Lockhart-Mummery in his very helpful skeleton argument referred the court to the definition of "recreation" in the Oxford English Dictionary under heading 3a, which is as follows:

"The action of recreating (oneself or another), or fact of being recreated, by some pleasant occupation, pastime or amusement."

12. I noticed on looking at the source that amongst the examples which the learned editor cites in support of that definition is the following from Hook "Lives AGPS" in the last century "he sought his recreation in the study of Ecclesiastical history." All we can get from the Oxford English Dictionary is that the word is capable of having a very wide meaning. For my part I consider, and I think probably Mr Lockhart-Mummery was constrained to agree, that the drafter of the Use Classes Order can hardly have had that type of recreation in mind.
13. If one gives recreation as wide a meaning as that for which Mr Lockhart-Mummery contends then the whole of the rest of Class D2 is otiose. I see some force in Mr Lockhart-Mummery's point that if one inserts "physical", as the judge did, then the rest of Class D2(e) is surplus to requirement. However, that seems to me to be a smaller point, and arguably explicable on the basis of the legislative history and a desire not to wish to alter things. But perhaps the points do balance one another.
14. Essentially, for the reasons given by the judge, I would reject Mr Lockhart-Mummury's arguments and dismiss this appeal.
15. LORD JUSTICE LONGMORE: I agree with my Lord for the reasons he gives that this appeal must be dismissed. There was some discussion in argument on the question whether the classes of use, as set out in the Town and Country Planning (Use Classes) Order 1987 should be construed widely or restrictively. We were referred to an apparent difference of opinion on that matter between Lord Widgery CJ, in Cheshire v Secretary of State for the Environment [1976] 31 PCR 161, favouring a restrictive view, and Hodgson J in Forkhurst Limited v Secretary of State for the Environment and Brentwood District Council [1982] GPL 448 favouring a neutral view. That difference of view is not important in this case, since it is clear by ordinary processes of construction that the appeal has to fail. In a case of genuine doubt, however, my own approach would be governed by the words of section 55(1) of the Town and Country Planning Act 1990, which defines "development" as inter alia "the making of any material change in the use of any buildings or other land". Section 55(2) then instances various operations or uses of land which are not to be taken to involve development of the land. One of those instances is contained in section 55(2)(f):

"In the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section, the use of the buildings or other land or, subject to the provisions of the order, of any part of the buildings or the other land, for any other purpose of the same class."

16. It seems to me that this Act of Parliament, expressed in the way that it is, is effectively providing an exception to the general principle that any material change in the use of buildings or land is to constitute development. It follows on ordinary principles of statutory interpretation that if a landowner wishes to rely on the Use Classes Order the burden of proof must be on him to show that he comes within the order: see in general Nimmo v Alexander & Sons [1968] AC 107 at 129-130 per Lord Wilberforce in a passage from his dissenting speech which was expressly approved by the majority of the House of Lords in R v Hunt [1987] 1 AC 352.
17. On any view, however, the claimant, as here, fails to show that he comes within the order and in my judgment the appeal must fail.
18. MR JUSTICE FERRIS: I agree with both judgments and do not wish to add anything.
(Appeal refused; Appellants's costs to be assessed if not agreed).