Material change of use – Application for certificate of lawfulness of proposed use or development – Section 192 of Town and Country Planning Act 1990 – Proposed multiple occupation of premises by mentally ill persons with carer – Whether inspector erring in taking use of dwellinghouse by large family as comparison for determining material change of use
The applicant, T, applied to the respondent council for a certificate of lawfulness of proposed use or development (LDC) under section 192 of the Town and Country Planning Act 1990. T proposed to use a building within Class C3 use, to accommodate six persons requiring care, who were living together as a single household. A care provider was also to live at the premises. That application was refused. On appeal, the Secretary of State, by his inspector, granted a LDC on the ground, inter alia, that the proposed use would not be materially different from the existing use as a dwellinghouse. The inspector compared the proposed use with use by a large family. The council challenged that decision, contending that the inspector had erred in taking use by a large family as the basis for his comparison, when there was no evidence that, at the time of the application for the certificate, the house was being used by a large family. On appeal, the court below held that the inspector had erred and therefore quashed the certificate. The Secretary of State appealed.
Held The appeal was dismissed.
In the context of an application for a section 192 certificate, what has to be decided is whether a planning permission that has not been granted is needed for the making of the proposed change of use: see [17]. What has to be compared, when deciding whether a proposed change of use is a material change of use, is the present use and the proposed use. The interposition of a notionally permitted use between the existing use and the use applied for is a complication not relevant to the exercise under section 197: see [18]. Such a construction was not prevented following the coming into force of the Human Rights Act 1998 and in the light of the provisions of Article 1 of the First Protocol: see [20].
Appeal against the decision of Sullivan J
This was an appeal by the Secretary of State for Transport, Local Government and the Regions against the decision of Sullivan J quashing the grant of a certificate of lawfulness of proposed use or development to the applicant, Dominic Tully in proceedings brought by Waltham Forest London Borough Council.
Philip Sales and Rupert Warren (instructed by the Treasury Solicitor) appeared for the appellant, the Secretary of State for Transport, Local Government and the Regions.
Richard Langham (instructed by the solicitor to Waltham Forest London Borough Council) represented the respondent council.
The applicant, Domonic Tully did not appear and was not represented.
Case referred to in the judgment
Panton v Secretary of State for the Environment, Transport and the Regions (1999) 78 P&CR 186; [1999] 1 PLR 92; [1999] JPL 461
The following is the judgment of the court.
SCHIEMANN LJ:
1. Before the court is an appeal by the Secretary of State for Transport, Local Government and the Regions against a decision of Sullivan J in a planning matter. The case concerns an application under section 192 of the Town and Country Planning Act 1990 for a certificate of lawfulness of proposed use or development. That section provides as follows:
(1) If any person wishes to ascertain whether–
(a) any proposed use of buildings…
…
would be lawful, he may make an application for the purpose to the local planning authority specifying the land and describing the use… in question.
(2) If, on an application under this section, the local planning authority are provided with information satisfying them that the use… described in the application would be lawful if instituted or begun at the time of the application, they shall issue a certificate to that effect; and in any other case they shall refuse the application.
(3) A certificate under this section shall –
(a) specify the land to which it relates;
(b) describe the use… in question…
(c) give the reasons for determining the use… to be lawful; and
(d) specify the date of the application for the certificate.
(4) The lawfulness of any use… for which a certificate is in force under this section shall be conclusively presumed…
2. The application with which we are concerned did not describe the existing or last use of the premises, but it is common ground that the present or last use of the premises was as a dwellinghouse. How many people lived there does not appear.
3. The application specified the proposed use. It was for six persons recovering from mental ill health, who would be living together as a single household with an element of care. The existing use is described as “Use as
Use as a single dwelling house…
(a) by a single person or by people living together as a family, or
(b) by not more than six residents living together as a single household (including a household where care is provided for residents).
1 (SI 1987/764)
4. In answer to the question “State why you consider that a Lawful Development Certificate should be granted for this proposal”, the reply was given:
As the building will not be occupied by more than six persons and as the occupants will be living as a single household sharing common facilities it is considered that the use of 6 persons notwithstanding an element of care falls within class C3…
5. Further details of the proposed use were given in due course. The local planning authority certified that the proposed use would not be lawful, giving the following reason:
The proposed use is for occupancy by 6 persons requiring care and a minimum of one care provider at the premises at any one time…
6. Section 195 of the Act provides that:
(1) Where an application is made to a local planning authority for a certificate under section… 192 and –
(a) the application is refused…
…
the applicant may by notice appeal to the Secretary of State.
(2) On any such appeal, if and in so far as the Secretary of State is satisfied –
(a)… that the authority’s refusal is not well-founded… he shall grant the appellant a certificate under section… 192…
(3) If… the Secretary of State is satisfied that the authority’s refusal is… well founded he shall dismiss the appeal.
7. So Mr Tully, the applicant for the certificate, appealed to the Secretary of State, who appointed an inspector to decide the appeal. That inspector decided that Mr Tully’s contention, that the existing and proposed use both fell within the same use class, was ill-founded – essentially because the presence of a carer brought the total of residents to seven. That conclusion is not challenged before us. However, the inspector went on to say:
9. …the only remaining issue to decide is whether or not, as a matter of fact and degree, the character and nature of the proposed use would be materially different from the present or last use as a dwellinghouse. Any normal dwellinghouse use by a family or other single household, especially
10. …I have no reason to suppose that the building, as extended, would not retain the physical appearance of a normal dwellinghouse in a residential area. The information provided with the application suggests that residents would live on a communal basis… This seems to me to be not unlike the living arrangements of many normal families where, generally, the parents (though in this case the staff acting in a kind of loco parentis) would provide the meals, but encouraging the children (in this case the residents in care) to participate in this and other domestic chores. Residents would share the use of communal facilities… I do not consider that the number of occupants, including staff, is so great as to cause any more vehicular or other general activity than might be generated by any large family or group of people, as might live together as a single household in a large dwellinghouse like this. Nor do I consider it likely that the level of visitors to the premises and the effect generally on the surrounding area would vary significantly from that arising from the social and domestic activity of any normal dwellinghouse of this size.
11. …the purpose of the proposal is to enable people recovering from mental ill health to live in as normal a residential household environment as possible, as part of the community, rather than in an institution. In all the circumstances, I take the view that, as a matter of fact and degree, the character and nature of the proposed use would not differ materially from that of the previous use of the property as a single family dwellinghouse. I therefore conclude that no material change of use requiring planning permission would be likely to occur if the property were used in the manner proposed, and accordingly that the use would have been lawful at the date of the application.
8. It is common ground that the inspector did not investigate what the actual use of the premises was at the time of the application. He appears to have proceeded on the basis that: (i) without the need of any further planning permission, it would have been lawful to use the premises for a large family; and (ii) the change from use by a large family to use by six patients plus a carer or two was not a material change of use.
9. The local planning authority, pursuant to section 288 of the Act, challenged the lawfulness of that decision. They accepted that the inspector was entitled to conclude that the change of use from use by a large family to use by patients and carers was not a material one. However, they submitted that the inspector had erred in taking as the base for his comparison use by a large family, when there was no evidence that the house, at the time of the application for the certificate, was being used by a large family. The judge accepted that submission, held that the inspector had fallen into error and quashed the certificate.
10. He said:
there was no information as to the number of persons who occupied the property as a single dwellinghouse; was it one elderly person living alone, or was it a large family perhaps providing care for unrelated residents who were nonetheless treated as part of the family?
11. The issue before us is exactly the same as it was before the judge, albeit that the submissions on behalf of the Secretary of State have been more elaborate.
12. Mr Philip Sales, on behalf of the Secretary of State, made the following submissions. Planning control is imposed by statute in order to help strike a balance between the requirements of the landowner and those of other people – in particular, his neighbours. The control that has been imposed by statute allows to a landowner a certain flexibility. He does not have to ask for permission every time he makes any change. It is a matter for judgment by the inspector whether a particular change is material. The inspector asked himself the right question in para 9, and came to a legally permissible answer in para 11. To focus upon the specific activities last carried out on the site, rather than the range of activities that could be carried out without the need for further planning permissions, was wrong as a matter of statutory construction, aided (if need be) by section 3 of the Human Rights Act 1998 and Article 1 of the First Protocol.
13. He pointed out that it was accepted that it was lawful to use the house for a family of eight, and that it was accepted that the inspector was entitled to conclude (as he did) that it was lawful to change the use of the house from use by a family of eight to use by six persons recovering from mental illness and two carers. He submitted that, in those circumstances, it would be odd if the law was that it was unlawful in one go to change the use of the premises from use by one elderly person (to take the judge’s example) to use by six persons and two carers.
14. His basic submission, that if you can do something lawfully in two steps then it must be lawful if you do it in one, sounds simple and attractive. It is, however, in our view, wrong. The accretion may be gradual, but the difference between the beginning and the end is highly significant. The matter can be easily demonstrated in cases of simple intensification of use – a classic planning problem. To move from intensity x to 2x may not be a material change of use. Nor to move from intensity 2x to 3x. Nor from 3x to 4x, and so on up to infinity. It conflicts with common sense to suggest that, because of that fact, to move from x to 100x cannot be a material change of use. Under planning law, it is permissible for a local planning authority to require discontinuance of a use if it is expedient: see section 102. Such an action attracts liability for compensation for the depreciation in the value of the interest affected: see section 115. That can involve valuing the right to use the land for activity x plus the right to make any non-material change of use. It will not necessarily involve the right to use the land for activity x at an intensity of 100x.
15. The structure of the Act, so far as relevant, is well known.
16. Planning permission is required for the carrying out of development of land: see section 57(1). Development means the making of any material change in the use of any buildings: see section 55(1). In the case of buildings that are used for a purpose of any use class, the use of the building for any other purpose of the same class will not be taken to involve development: see section 55(2). For the avoidance of doubt, it is
1 (SI 1995/418)
17. It is clear that the word “lawful” in section 192 means “lawful in the context of the planning legislation”. What either does not require planning permission or has planning permission (either under the GPDO or because of an express planning permission) is lawful. Therefore, in the context of an application for a section 192 certificate, what has to be decided is whether a planning permission that has not been granted is needed for the making of the proposed change of use. It is clear that, in a case such as the present, what has to be compared, in deciding whether a proposed change of use is a material change of use, is the present use and the proposed use. The crucial question is what factors are “in principle” relevant in deciding whether a change of use is a material change of use. Assume that: (i) under the planning legislation no further permissions are needed to move from the existing use to a notional use permitted under the planning legislation; and (ii) a change from the notional use to the proposed use is not a material change. Does this have as a consequence that the change from the existing use to the proposed use cannot be material? The inspector held that the answer to this question was in the affirmative. We disagree.
18. We agree with the judge. Like him, we consider that the fact that: (i) no further permissions are needed to move from the existing use to the notional use; and (ii) no further permissions are needed to move from the notional use to the use applied for; is potentially relevant to the question as to whether planning permission should be granted for the use applied for. However, like him, we agree that the interposition of a notionally permitted use between the existing use and the use applied for is a complication not relevant to the exercise under section 192.
19. Mr Sales submitted that the inspector’s approach was consonant with the approach of the court to cases where someone wishes to resume a lawful use of land that has been dormant, such as Panton v Secretary of State for the Environment, Transport and the Regions [1999] JPL 4612. Where a use has become dormant, reactivation of the use, he submitted, would necessarily result in an intensification of the use from its dormant state. He relied upon the holding that a dormant use that had arisen by way of a material change of use, but was not active, possibly for a long period of time, could still exist in planning terms if it had not been lost by operation of law: by abandonment, the formation of a new planning unit or by the making of a material change of use. The background there was that an application had been made for a certificate under section 191 in relation to an activity that had acquired immunity from enforcement under previous
2 [1999] 1 PLR 92
20. Mr Sales submitted that even if the judge’s approach would have been right as a matter of statutory construction prior to the coming into force of the Human Rights Act 1998, that construction should not prevail in the light of the provision in Article 1 of the First Protocol. We disagree. Even if one starts from the position that the very existence of the planning legislation amounts to an interference with a person’s right to the peaceful enjoyment of his possessions, or if one accepts that giving a negative answer to a request for a certificate amounts to such interference – neither of which propositions is self-evidently true – it seems to us manifest that to control material changes of use to the extent of informing an individual that planning permission is required for a proposed activity is proportionate to the legitimate aim in view. One must remember that if the proposed change of use is not material, then the certificate will be granted. The present case is concerned only with the appropriate test for materiality.
21. We therefore think that the judge was right, and that this appeal should be dismissed.
Appeal dismissed.
