R (on the application of Jones) v Isle of Anglesey County Council

Town and country planning – Planning permission – Change of use – Defendant local authority granting planning permission for development subject to conditions – Interested party fitting out building for change of use but use not commenced due to Covid-19 restrictions – Defendant finding change of use – Claimant applying for judicial review – Whether change of use commencing prior to actual use of building – Application dismissed A dispute arose concerning the proposed development of land on the former Penrhos Estate at Holyhead, Anglesey, within which lay the Penrhos Nature Reserve. On the interested party’s application, the defendant local planning authority granted hybrid planning permission for the development. The scheme comprised outline planning permission for a leisure village at Penrhos Coastal Park; and full planning permission for change of use of surviving estate buildings, including the Bailiff’s Tower (the building) (which had served as a cricket pavilion and clubhouse) to a visitor’s centre. Both elements of the permission were subject to conditions requiring commencement before a certain date. The outline element of the permission was commenced in time. Condition 70 of the full planning permission required the change of use to start within five years from the date of its grant. The building was fitted out for change of use but never actually used as a visitor centre due to Covid restrictions and the building was closed shortly after the commencement date. However, the defendant decided that a change of use had taken place by 21 April 2019 (within the requisite period). The claimant local resident objected to the planning permission and applied for judicial review contending, amongst other things, that the interested party failed to comply with condition 70, since it did not commence the change of use of any of the existing estate buildings by the requisite date and the planning permission as a whole had expired. Held: The application was dismissed. (1) Change of use could take place before the premises were used in the ordinary and accepted sense of the word. In considering whether the use of a building had changed from its former use to a new use, the decision-maker had to take into account both the physical state of the building and its actual use, intended use or attempted use. Each of those matters was capable of being relevant to the question whether the use of the building had changed from its former use to a new use. The relative importance of any or all of those matters to the resolution of that question would depend on the circumstances of the given case. Whatever its importance in the circumstances of the case, the physical state of the building or land before and after the date on which the change of use was said to have taken place could not be disregarded. Evidence of actual use (in the sense of active day to day use of the premises) was not a necessary pre-requisite in law to a finding that a change of use had taken place. The absence of actual use was one of the factors which the decision-maker had to consider in reaching an overall view whether a change of use had taken place. That was a question of fact and degree, to be determined upon consideration of both the physical state of the building and its actual use before and after the relevant date: Howell v Sunbury-on-Thames Urban District Council (1964) 62 LGR 119, Impey v Secretary of State for the Environment (1980) 47 P&CR 157 and Welwyn Hatfield Council v Secretary of State for Communities and Local Government [2011] UKSC 15; [2011] 2 EGLR 151; [2011] 2 AC 304 applied. (2) In the present case, the defendant followed the correct approach in law. The committee properly took into consideration the physical state of the subject building in April 2021, the physical changes made to make the building ready for the new use authorised by the planning permission, and the fact that it was not, at that time, open to the developer to bring the premises actively into use as a visitor information centre because of statutory restrictions which made such use illegal. The Covid-19 restrictions were relevant because they offered a clear explanation for the lack of actual use of the building for that purpose. Given those restrictions, the interested party’s attempt to realise the intention to bring the building into actual use within the time limit set by condition 70 of the planning permission was necessarily limited to making the premises ready for that purpose. On the evidence, the building had been made ready to operate as a visitor information centre and its intended use for that purpose was only prevented at that time by reason of the obligation on the interested party to comply with the then current Covid-19 restrictions. It was a reasonable response to that evidence for the defendant to conclude that the change of use authorised by the planning permission had taken place prior to 19 April 2021. (3) By virtue of section 56(2)-(4) of the Town and Country Planning Act 1990, for the purposes of implementing the planning permission in accordance with condition 70, it was necessary for the interested party to begin to carry out a material operation. Such an operation included a change in the use of the building which constituted “material development”. It was not necessary for the interested party to have converted the whole building to discharge condition 70. In this case, the interested party sought to implement the change in the use of the building authorised by the planning permission through establishing a visitor information centre ready for use in part of that building. The defendant was able reasonably to conclude that that sufficed as material development for the purpose of implementation in accordance with section 56. Very little needed to be done to satisfy the commencement provisions in section 56, provided that what was done was genuinely done for the purpose of carrying out the development. There was no basis for the argument that the planning permission was incapable of further implementation: Malvern Hills District Council v Secretary of State for the Environment (1983) 46 P&CR 58 considered. (4) A failure to comply with condition 70 would have resulted in the expiry of the full element of the planning permission. It would not have affected the developer’s ability to carry on with implementation of the outline elements of the planning permission, which was not subject to condition 70. Ben Fullbrook (instructed by Richard Buxton Solicitors) appeared for the claimant; Rebecca Clutton (instructed by Burges Salmon LLP) appeared for the defendant; Stephanie Hall (instructed by Pinsent Masons LLP) appeared for the interested party. Eileen O’Grady, barrister Click here to read a transcript of R (on the application of Jones) v Isle of Anglesey County Council