Thursday, 11 September 2014

“Other indoor and outdoor sports or recreations”

- The scope of Use Class D2(e) in the Use Classes Order

I have recently been considering the precise scope of Use Class D2 (assembly and leisure). This use class contains several specific categories of use, and there is then a final ‘sweeping up’ item, which reads – “(e) [use as] a swimming bath, skating rink, gymnasium or area for other indoor or outdoor sports or recreations, not involving motorised vehicles or firearms”.

This category covers a wide range of indoor sport-related or exercise uses, including both commercial and other gymnasia open to the public, health and fitness clubs, leisure centres, indoor sports facilities (such as squash courts or real tennis courts) and indoor training facilities for sports of all kinds, as well as outdoor sports and training facilities, but the exclusion from this class of those uses that involve motorised vehicles or firearms applies equally to both indoor or outdoor facilities, so that an indoor go-karting circuit or an indoor shooting gallery or rifle range, even if it is fully sound-proofed, will still be outside the scope of Class D2 and will therefore be a sui generis use (a use of its own kind).

In addition to all forms of sport (including those attended by spectators) as well as sports training facilities, the inclusion of ‘other indoor or outdoor........recreations’ might be thought to broaden the scope of Class D2(e) considerably, but these words must be read in the specific context of Class D2(e), which is clearly dealing with physical activities rather than hobbies, interests, or recreational activities of an artistic or creative nature. It cannot cover all those ways in which a person can enjoy recreation in a broad sense without becoming so broad as to render the rest of Class D2 otiose, or creating the possibility of uncontrolled changes of use.

So the words “other indoor or outdoor sports or recreations” should be seen as relating to that group of activities listed in Class D2(e), rather than to all those in Class D2 as a whole. The connotation and context of D2(e) is sport and physical recreation, the role of physical recreation being to cover those many situations where the physical activity would not be described as a sport. (See Rugby Football Union v SSETR [2001] EWHC 927. This judgment was subsequently upheld in the Court of Appeal - [2002] EWCA Civ 1169 - where the Court held that it is right to incorporate some physical effort to the phrase “recreation”, otherwise it would be so wide as to be ineffective as a planning tool.)

These judgments, both in the High Court and in the Court of Appeal, confirmed that the phrase “a swimming bath, skating rink, gymnasium or area for other indoor or outdoor sports or recreations” in Class D2(e) is to be construed ejusdem generis (i.e. the individual elements in the list are to be construed as being ‘of the same kind’ as each other). The Court of Appeal both in RFU and also in the earlier case of Millington (cited below) firmly rejected a wider dictionary definition of ‘recreation’, and insisted on the element of physical exercise or effort involved in a sport. The definition of ‘sport’ in the OED is “a game or competitive activity, especially an outdoor one, involving physical exertion, e.g. cricket, football, racing, hunting.” Thus the dictionary definition requires both a competitive element and physical exertion but, because the use specified in the Use Classes Order embraces not just sport but other forms of physical exercise, the courts have not insisted on a competitive element being present, provided that the use does involve some physical effort.

A subsidiary definition of “sport” also given in the OED is “amusement, diversion, fun”, but this can have no application in the context of Class D2(e) in view of the emphatic rejection of a similarly wide definition of ‘recreation’ by the Court of Appeal both in Millington and in RFU. On the other hand, the exclusion from Class D2(e) of indoor or outdoor sports or recreations which involve motorised vehicles or firearms would seem to confirm that motor sports and shooting would embrace a sufficient element of physical effort to come within Class D2(e) had they not been expressly excluded. This may perhaps assist in determining whether activities of a similar nature, not caught by that exclusion, come within Class D2(e).

It was also held in RFU that the presence or absence of spectators is immaterial to Class D2(e). A sports ground or stadium is within Class D2(e) because it is an area used for outdoor sport. It is not the presence of more or less passive spectators which brings it within the purpose of Class D2(e). They may enjoy watching sport. For them, in common sense language, watching sport may be one of their recreations, but they are not themselves engaged in physical recreation. A sports ground or stadium is not, for Class D2(e) purposes, an area used for outdoor recreation by the spectators.

Similarly, the audience at an open air pop concert is not participating in ‘other outdoor recreations’, nor are the performers, no matter how energetic their performance may be, because the performance or event is not in the nature of a sport. On the other hand, any fully enclosed building in which a pop concert or other musical performance is held is being used as a concert hall within Class D2(b). The building does not need to be adapted in any way for the purpose, other than as may be required by the terms of any public entertainment licence. [The court ruled in RFU that a sports stadium cannot be used as a 'concert hall' within Class D2(b), because it is not a ‘hall’ i.e. not a fully enclosed building.]

As indicated above, the judgment in the RFU case is in line with the earlier judgment of the High Court in Millington v SSETR (1999) 78 P. & C.R. 373, (1999) JPL 644 (subsequently approved by the Court of Appeal – [2000] JPL 297), where it was held that the test of whether a use of land is an area for outdoor sports or recreations is not determined by whether the activity may probably be described as recreational in nature. It is not sufficient that the area should be used for purposes which may be called recreational purposes, as opposed to commercial or educational purposes. Thus a house or garden open to the public is not an area used for, respectively, indoor or outdoor sports or recreations.

I do not have time to discuss other examples at the moment, but it does seem to me that a number of uses which appear to have been accepted as coming within Class D2(e) in the past do not in fact properly fall within Use Class D2, due to the lack of a sufficient element of physical exercise, effort or exertion being involved so as to bring them within the definition of “other indoor or outdoor sports or recreations”.

© MARTIN H GOODALL

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