Titchfield Festival Theatre Limited v Secretary of State for Housing, Communities and Local Government & Anor [2026] EWCA Civ 368
Titchfield lawful use reversion is an important Court of Appeal judgment on what lawful use remains available when an unauthorised material change of use is enforced against.
The court held that section 57(4) of the Town and Country Planning Act 1990 requires a counterfactual exercise: assume the development being enforced against had not occurred, then ask what use of the land would have been lawful. The creation of a new planning unit did not, by itself, extinguish earlier lawful use rights.
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- Neutral citation
- [2026] EWCA Civ 368
- Court
- Court of Appeal (Civil Division)
- Judgment date
- 26th March 2026
- Judge
- Lord Justice Lewison, Lord Justice Holgate and Lord Justice Dove
- Case number
- CA-2025-001113
What Titchfield decided
The case concerned a theatre use spread across different parts of a site. Areas A and B had lawful theatre-related use rights, while another area had a different lawful use. An unauthorised use later brought the land together into a different planning unit.
The Inspector and High Court treated that later planning history as having broken the earlier use rights. The Court of Appeal held that this approached the statutory question incorrectly.
Section 57(4) requires a counterfactual
The statutory question is what use could lawfully have been made of the land if the development being enforced against had not been carried out.
That means the decision-maker must mentally remove the unauthorised development and identify the lawful planning position which would then remain.
The court rejected an approach which treated the intervening unlawful use as automatically wiping the slate clean simply because it created a new planning unit or a new chapter in the planning history.
Earlier lawful use rights do not need perfect spatial unity
The Court of Appeal rejected the idea that the earlier rights could only survive if they all arose from one permission, one planning unit or one unified purpose.
Different parts of the land could retain different lawful use rights. The exercise under section 57(4) is concerned with the lawful position which would exist in the statutory counterfactual, not with forcing the site into one historic planning unit.
The planning unit remains relevant, but it is not the statutory test
Planning-unit analysis can be important when deciding whether a material change of use has occurred. Titchfield does not undermine that principle.
What it does make clear is that a finding that a new planning unit was created by an unlawful use does not answer the separate question of which lawful use rights revive or remain available when that breach is enforced against.
Existing lawful rights also mattered to ground (f)
The same error affected the assessment of whether the steps required by the enforcement notice went further than was necessary.
An enforcement notice must remedy the breach without unnecessarily extinguishing lawful use rights which the statutory scheme preserves. The court’s conclusion on section 57(4) therefore fed directly into the proper scope of the remedial requirements.
This is not the same as abandonment
A lawful use can sometimes be lost by abandonment, but that is a distinct planning doctrine with its own fact-sensitive test.
Titchfield was about the statutory effect of enforcement and the counterfactual required by section 57(4), not a general rule that every historic use can always be revived.
Planning Geek’s guide to abandonment of use explains that separate issue.
Why Titchfield matters
The case is especially useful where an enforcement notice attacks a composite or intensified use that has brought together land with different lawful histories.
The correct exercise is not simply to ask what planning unit exists today. The decision-maker must identify the lawful baseline which would remain if the enforced development were assumed never to have happened.
See also Planning Geek’s guide to planning enforcement notices.
Read the full Titchfield judgment
The full Court of Appeal judgment is held in the Planning Geek case law library. Gold Members can open the protected PDF below.
Titchfield Lawful Use Reversion Case Law Page Updated: 10th September 2026