High hopes of "a constructive dialogue" as Titchfield Festival Theatre wins key court battle in planning row
Calls have been made for ‘a constructive dialogue’ to bring to an end a dispute over a theatre which was built without planning permission.
It comes after the Appeal Court overturned the decision of a planning appeal made by Titchfield Festival Theatre relating to its Arden Theatre. The court found that an independent planning inspector and the High Court has misapplied a point of law would could potentially have led to a compromise being found.
This means now that a fresh planning appeal will now need to take place - unless a new way forward is found, which could include reconfiguring and downsizing the venue.
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Kevin Fraser, the chairperson and artistic director at the TFT said: “This creates a valuable opportunity for constructive dialogue. Rather than pursuing further costly and time-consuming legal proceedings, TFT believes there is a clear path to agreement—one that allows the Arden Theatre to coexist alongside Fareham Live.
“Such an approach would deliver immense cultural, social, and economic benefits, ensuring that residents across the borough (and the future regional authority from 2028) have access to a diverse and inclusive range of entertainment and community facilities.”
As previously reported by The News, Fareham Borough Council took enforcement action after becoming aware in 2023 that a new 450 seat theatre had been built without planning permission in the buildings behind the existing theatres in St Margarets Lane.
The two other theatres at the site – the Oak Theatre and the Acorn Studio – were built with planning permission and are authorised, however the third was done without approval - with the theatre believing that this was not necessary.
The theatre appealed against enforcement action and after a planning inquiry the inspector sided with the council, with the lack of parking at the venue a key factor. The theatre then appealed to the courts, with the Appeal Court now nullifying the outcome of the planning inquiry.
This now means the Arden Theatre can continue to operate until the outcome of a new inquiry or an agreement is reached with the council which does not breach planning rules.
The theatre’s court appeal centred around its ‘fallback’ position, which looked at what it could be allowed to do with the space if its planning appeal was unsuccessful.
Three spaces were connected to create the theatre - two approved areas, and a third which had previously been used for storage.
It was argued at the planning appeal that if TFT was unsuccessful in overturning the enforcement action then it could use the two approved areas to create a smaller 341-seat theatre, with the third disputed section reverting back to storage use.
However the inquiry dismissed this and ruled this was unlawful as a result of the unapproved changes - a decision now overturned by the court.
The court decision said: “On the basis of the agreed facts at the public inquiry and those found by the inspector, if the unlawful development had not been carried out, Area B (in conjunction with Area A) would have had a lawful use as a theatre, and Area C would have had a lawful use as workshop/storage.”
Mr Fraser said he was delighted at he court’s decision and the opportunity to resolve the planning issue.
He said: “The recent Court of Appeal judgment marks a significant and positive step for the future of the Arden Theatre and its role within the community.
“The court clarified the proper interpretation of section 57(4) of the Town and Country Planning Act 1990, confirming that lawful use rights can be reinstated by considering what the position would have been had the alleged breach not occurred. Crucially, the court found that earlier decisions had misapplied this principle by focusing on changes to the planning unit rather than applying the required “counterfactual” test.
“As a result, the ruling establishes that lawful theatre use rights remain intact and can be relied upon, regardless of subsequent physical changes to the site. This represents a strong legal foundation for the continued operation of the Arden Theatre.
“For Titchfield Festival Theatre, this is a highly significant outcome. The judgment confirms that the Arden Theatre can continue operating unless and until a further planning inquiry determines otherwise, or a mutually agreed solution is reached with Fareham Borough Council.”
He added: “TFT remains committed to working collaboratively with FBC to secure a positive outcome for all residents.”
Fareham Borough Council has confirmed it is aware of the court’s decision and that the enforcement notice against the TFT remains in abeyance until after a planning appeal is held and decided by a new inspector.
Timeline of events
- 2001 - Titchfield Festival Theatre was established, initially performing at Titchfield Abbey, before eventually moving to its current home on St Margarets Lane and developing this site
- May 2023 - Fareham Borough Council became aware that a new 450 seat theatre had been constructed in the buildings behind the Oak Theatre and the Acorn Studio (the latter two being previously approved)
- November 2023 - The council issued a planning enforcement Notice against the Arden Theatre, with TFT appealing against this arguing it has not breached planning rules
- May 2024 - A public planning inquiry was held by the independent Planning Inspectorate
- August 2024 - The planning inspector dismissed the appeal and upheld the planning enforcement notice, ordering the theatre stop this use within two months
- November 2024 - TFT brought a legal challenge against the Planning Inspectorate’s decision in the High Court arguing the Planning Inspectorate had made errors of law when dismissing the appeal
- April 2025 - The High Court dismissed the legal challenge in full and upheld the Planning Inspectorate's decision. TFT then took its case to the Court of Appeal
- March 2026 - The Court of Appeal found that both the Planning Inspectorate and the High Court Judge erred in law and quashed the inspector’s decision from 2024. This means the original appeal against the planning enforcement notice must be reconsidered by a different planning inspector