Clearance in UK Law

Whether other uses would or would not be materially different from the permitted use is irrelevant for the purpose of ascertaining what use is permitted by the planning permission. If the permitted use has been implemented, and a change to the permitted use takes place, then it will be a question of fact and degree whether that change is a material change of use.

In my opinion nothing in either the Clyde & Co. case or in the Westminster Council case is properly to be interpreted as laying down that the competing needs test exists as a matter of law. The most that can be extracted from the two cases is that the desirability of preserving an existing use of land is a consideration material to be taken into account under that subsection, provided there is a reasonable probability that such use will be preserved if permission for the new use is refused.

In consequence, I consider that the 2014 permission was ambiguous on its face. Despite the stated approval of the variation of the condition as to use, which restricted sale to non-food goods, the "Conditions" in the permission did not include any condition restricting use to the sale of non-food goods. Because of the ambiguity I conclude that it is permissible to consider the 1985 and 2010 permissions, and application for the variation in 2014.

However it is important under the CPR to have in mind the overriding principles when considering whether to lift an order made under CPR 31.22. The most important consideration must be the interest of justice which involves considering the interest of the party seeking to use the documents and that of the party protected by the CPR 31.22 order. As Lord Oliver said each case will depend upon its own facts.

I realise that what takes place on the ground cannot be conclusive and agree with Ms Robinson's submission that caution has to be exercised because landowners may choose not to implement the whole of a planning permission, and may carry out development in breach of planning control. But if the documentary evidence is sparse, I do not see why the purported implementation of a planning permission on the ground, if done without any complaint over many years, should be altogether ignored.

In my judgment everything points to the 2003 grant being one of permission to use the land as a travelling showpeoples' site. Not only is this what was applied for, and was granted in the short description, it is also consistent with the conditions which I have set out in paragraph 6 of this judgment. Nowhere is it described as a residential caravan site, nor are the conditions taken as a whole appropriate for such a site.

BMW's argument in relation to the BMW Mark was more subtle and to my mind more flimsy. It was based on the assertion that while the average consumer would not believe that 'BMW' conveys any implication of authorised use in general, it does when immediately attached to a dealer's name.