Titchfield Festival Theatre - the new chapter. Or not, as it happens.
Titchfield Festival Theatre v SSHCLG and Fareham BC [2026] EWHC Civ 36
The Titchfield Festival Theatre case has reached the Court of Appeal, [2026] EWCA Civ 36. Our commentary on the High Court decision can be found here
As a reminder, Titchfield Festival Theatre acquired land in Fareham (Areas A and B) in 2010. A theatre building was built over Areas A and B. The theatre was successful and, in 2021, acquired the next door warehouse site (Area C). A new, much larger, theatre was created over areas B and C, without permission. The council took enforcement action against the use of Areas B and C for this larger theatre.
At appeal, the appellant argued that the existence of a lawful theatre use on A and B was a material consideration; the appellant argued it could adjust the larger theatre so that it operated on Area B only, with Area C being storage, as before. The council argued that there was now a single planning unit of A, B and C and that there was no scope to revert under s57(4) to the A/B planning unit so all existing use rights related to A/B were lost.
The enforcement notice was upheld on appeal. The inspector found that the establishment of a new planning unit was capable of extinguishing existing use rights. She found that there was now a single planning unit (A/B/C), that this had a different character of use than the previous separate theatre (A/B) and storage (C) uses, that it had planning impacts and was therefore a material change of use. There was no lawful use of A/B/C because it did not previously exist as a planning unit and therefore no reversionary right under s57(4) TCPA 1990. The decision was challenged at the High Court.
At the High Court, the appeal was dismissed. The judge found that there is a new chapter in the planning history when there is implementation of a new permission. Or a new unlawful use. And that establishment of a new planning unit could well be a new unlawful use. There was some debate in the case law as to how “radical” a departure from the existing use that new unlawful use had to be. The judge decided that “new chapter in the planning history” and “creation of a new planning unit” were interchangeable in this respect. If the creation of the new planning unit was a material change of use, such that there was development and a new chapter in the planning history, then any existing lawful use rights were lost. The inspector had rightly found that there was a new planning unit here and that its creation was a material change of use; it followed that any existing use rights had been extinguished. There was no way back to those rights under s57(4) because the land enforced against was not the land on which there was an existing lawful use. The planning unit enforced against (A/B/C) had no existing lawful use as it was newly created. The previous planning units (A/B and C) no longer existed and there was no way back to those units.
The theatre was given permission to appeal. The argument was that the judge had interpreted s57(4) too narrowly. Only if the creation of the new planning unit was also a new chapter in the planning history did it extinguish existing use rights. That was a question of whether the change was sufficient to cause the previous lawfulness to be spent. That might happen with implementation of a new permission. Or a new use over the whole of the previous planning unit. It did not necessarily happen with a new use over a different planning unit; that would only be the case if the new use was inconsistent with the previous use.
The Court of Appeal followed established case law that s57(4) only applies to reversion to the last use and only when that use is lawful. But it held that s57(4) requires that the decision maker ignore the development which has taken place and imagine that the previous lawful use continued. That is the lawful use to which s57(4) applied. The fact that the enforcement development rendered that impossible because it incorporated that previous use, and its planning unit, in a larger unit had to be disregarded and could not, itself, be a reason for rejecting the reversionary right.
Rather it was necessary to consider whether there was truly a material change of use of areas A and B such that the lawfulness of the use of A and B had been spent. This, the court held, the inspector had not done because it was the addition of the storage use in area C and its change to a theatre use that was cited as the change in the character of the use, rather than any fundamental change of areas A and B. But that addition of C was the development which was enforced against and therefore had to be disregarded. The decision therefore had to be remitted for further decision.
The Court was at pains to make clear that this was not an application of the Mansi principle. Mansi was limited to the drafting of enforcement notices and had nothing to do with s57(4).
The case of Stone v SSCLG [2014] EWHC 1456 (Admin), referred to extensively in the High Court and before the inspector, was unhelpful and limited to its unusual facts, the court held. It did not support the proposition that s57(4) only applied where the planning units before and after development were the same spaces.
The court gave some comment on the meaning of “new planning unit” and “new chapter in the planning history”. These were not necessarily the same and, in particular, only a new chapter extinguished existing use rights. A new chapter would be found in the case of implementation of a permission across the site. Or a new unlawful use across the site. But a new building (and therefore use) on only a part of a site might not result in creation of a new planning unit and, even if it did, might not be a material change of use sufficient to create a new chapter in the planning history of the site. That would only be the case if the new use was sufficiently radical a change that the new use was inconsistent with the previous use.
The court summarised the process for decision makers. Where there is a change in use of an entire planning unit, it is only necessary to consider the character and materiality of the change in the normal way. But where there is a change in the planning unit as part of the development, it is necessary to consider whether there has also been a new chapter in the planning history. If not, existing use rights may still apply. That is essentially a question of incompatibility.
