Intensification of Use in UK Law

It is not disputed that intensification of a use is capable of constituting an MCU. What is necessary, however, and accepted by the parties to the present appeal, is that the test for deciding whether there has been an MCU is whether there has been a change in the character of the use. In East Barnet Urban District Council v British Transport Commission [1962] 2 QB 484 at 491, Lord Parker CJ stated:

I do not find it necessary to consider those issues in any detail. M and WR rightly accept that it is permissible to consider off-site effects when assessing whether an MCU has been established. In assessing whether there is a change of character in the use, its impact of the use on other premises is a relevant factor. It is necessary, on the particular facts, to consider both what is happening on the land and its impact off the land when deciding whether the character of the use has changed.

Against that Mr Laurence QC relied on the general proposition that if the public (or a section of the public) is to acquire a right by prescription, they must by their conduct bring home to the landowner that a right is being asserted against him, so that the landowner has to choose between warning the trespassers off, or eventually finding that they have established the asserted right against him.

The fact that the Reasons (understandably) refer to the entirety of the planning unit and thereby in part to that part of the airfield site which fell within the administrative area of the claimant council, does not in itself mean that the certificate was purporting to certify the entirety of the planning unit.

In the light of these two well established principles I find it hard to understand how there can be some middle category of planning permission which, without implementation, is capable of affecting private rights unless such effect is specifically authorised by Parliament. It has not been suggested to us that there is any section in the statutory code governing the application for and grant of planning permission which could have that result.

First, the land was not in agricultural use at the relevant time, but was in mixed use including the various commercial activities found by the inspector. The provisions of Part 6 of Schedule 2 to the 1995 Order, which relate specifically to agricultural buildings and operations, had no application to land in such mixed use.