Abandonment vs. Dormant Use in Planning Law: A Detailed Guide

Hello fellow planning enthusiasts! Today, let’s dive deep into two complex concepts that frequently surface in planning law: abandonment and dormant use. A comprehensive understanding of these terms is paramount when establishing your rights to a specific use of land or property. This post will clarify the differences, provide practical examples, and equip you with the knowledge to navigate these tricky waters.

Understanding Abandonment in Planning Law

In the context of planning, abandonment signifies the relinquishing of a specific land or building use. It transcends a mere temporary cessation of activity, indicating a permanent end with no intention of resuming the use at any point in the future. The critical factor here is intent, or rather, the lack thereof.

So, how do planning authorities determine whether a use has been abandoned? They don’t simply take the owner’s word for it. Instead, they employ an objective test, evaluating what a reasonable person, armed with all the relevant information, would conclude.

Several factors come into play during this assessment:

• Alternative Use: Has the land or building been repurposed for any other use since the original activity ceased?
• Physical Condition: What is the current state of the building? Is it dilapidated or well-maintained?
• Duration of Non-Use: How long has the building remained unused for its original purpose?
• Owner’s Intentions: While not the sole determinant, what were the owner’s intentions regarding the future use of the property?

It’s crucial to recognise that even if an owner asserts a continuous intention to resume a use, it can still be deemed abandoned based on the objective evaluation of the aforementioned factors. The Hughes v Secretary of State for the Environment, Transport and the Regions (2000) 80 P. & C.R. 397 case provides a stark example. In this case, residential use of a cottage, uninhabited for nearly 30 years and in a ruinous state, was considered abandoned despite the owner’s subjective intention to resume residential use.

Exploring Dormant Use: A Use Awaiting Revival

Conversely, dormant use pertains to a previous use, stemming from a material change of use that has become inactive. Unlike abandonment, a dormant use technically persists within the planning framework. This is because the entitlement to that use hasn’t been forfeited via:

• Abandonment
• The formation of a new planning unit
• A subsequent material change of use

The landmark case of Panton & Farmer v Secretary of State for the Environment, Transport and the Regions (1999) 78 P. & C.R. 186 sheds light on this concept. This case underscores that a dormant use can still be regarded as an “existing” use for the purpose of applying for a Lawful Development Certificate (LDC).

Panton & Farmer: Key Planning Tests

The Panton & Farmer case gives rise to some key planning tests for determining whether a dormant use can be considered an existing use:

1. When did the breach of planning control occur? That is, when did the material change of use to the use specified in the application take place?
2. Has that use been lost by operation of law? This can occur in one of three ways:
   • Abandonment
   • The formation of a new planning unit
   • A subsequent material change of use
3. Does the description of the use specified in the LDC application properly describe the nature of the use? If not, the decision-maker must modify or substitute the description to accurately reflect the nature of the material change of use that occurred.

Defending Against Abandonment Claims: A Strategic Approach

Let’s assume you’re facing a challenge regarding whether a use has been abandoned. How can you effectively demonstrate that this is not the case? Here’s a strategic approach:

1. Gather Evidence of Intention: Although not the ultimate deciding factor, evidence indicating a continued intention to resume the use can be valuable. This might include records of property maintenance, attempts to lease the property, or formally documented plans outlining future use.
2. Highlight Lack of Incompatible Use: Emphasize that the land or building has not been subjected to any incompatible use since the original activity ceased.
3. Account for Periods of Inactivity: If there have been periods of non-use, provide clear explanations. Renovations, economic downturns, or seasonal business operations can all explain inactivity without implying abandonment.
4. Show the Condition of the Property: Providing evidence that the building has been properly maintained and is in a usable state can reinforce the argument that the use has not been abandoned.

Key Takeaways

• Abandonment signifies the permanent relinquishing of a use, while dormant use implies a temporary period of inactivity with the potential for resumption.
• Abandonment is assessed objectively, taking into account all pertinent circumstances, not merely the owner’s stated intentions.
• Dormant uses can still qualify as “existing” uses for LDC applications.
• When challenged, compile evidence to demonstrate a sustained intention to resume use and provide valid reasons for any periods of inactivity.

By understanding these key differences and adopting a proactive approach to gathering evidence, you can effectively navigate the complexities of abandonment and dormant use in planning law.

Disclaimer: This blog post provides general information and should not be considered legal advice. Always consult with a qualified planning professional for advice tailored to your specific situation.