Town and country planning – Planning permission – Material change of use – Claimant applying for certificate of lawful use or development for use of land for up to 80 caravans for purposes of human habitation – Local planning authority dismissing application – Planning inspector dismissing appeal – High Court dismissing challenge to inspector’s decision – Appellant appealing – Whether proposed use outside scope of planning permissions – Whether material change of use without planning permission – Appeal dismissed
The appellant owned a caravan park at Bedford Bridge, in the Dartmoor National Park, known as the Magpie Leisure Park. In 1987, the second respondent’s predecessor, as local planning authority, granted conditional planning permission for development of the site, by “a proposed site enhancement scheme involving an amendment of existing provision at site to allow for nine residential vans, 16 holiday chalets, 18 static vans and 30 touring units … ”. The permission was varied in 2013 when conditions were added.
In 2018, the appellant applied to the second respondent for a certificate of lawful use or development for the stationing of up to 80 caravans on the site “for the purpose of human habitation”. The application was refused and the appellant appealed under section 195 of the Town and Country Planning Act 1990. The appeal was determined after an inquiry by an inspector appointed by the first defendant secretary of state who dismissed the appeal.
The essential reasoning set out in the inspector’s decision letter was that the proposed stationing of up to 80 caravans for human habitation was not provided for by the 1987 permission and would amount to a material change of use for which planning permission would be required. The High Court dismissed the appellant’s application under section 288 of the 1990 Act challenging that decision: [2021] EWHC 1200 (Admin). The appellant appealed.
Held: The appeal was dismissed.
(1) The court had to have in mind that, under the statutory scheme, a condition might be imposed for regulating the development or use of any land under the control of the applicant so far as appeared to the local planning authority to be expedient for the purposes of or in connection with the development authorised by the permission. Conditions had to be fairly and reasonably related to the permitted development: UBB Waste Essex Ltd v Essex County Council [2019] EWHC 1924 (Admin); [2019] PLSCS 138 applied.
(2) The inspector’s understanding of the two planning permissions was correct. She discerned the real meaning and scope of the 1987 permission, and the synergy between grant and conditions. The “existing lawful use” of the site was not simply “use as a caravan site”. It was as described in the brief particulars in that permission. The description of development in the permission could not simply be disregarded.
The inspector rightly rejected the contention that the permission would allow an unlimited number of residential caravans to be present on the site for occupation throughout the year. She also rightly referred to the permitted use as “a caravan site at which caravans provide both permanent residential accommodation and holiday accommodation, the year-round use of the latter being prevented by condition”.
(3) None of that analysis conflicted with the principle recognised in the I’m Your Man authorities (that there was no express or implied power for a local planning authority or the secretary of state to impose a legally enforceable limitation on a planning permission granted pursuant to an application): I’m Your Man Ltd v Secretary of State for the Environment [1998] EWHC 866 (Admin); [1998] 4 PLR 107 considered.
That principle, in its proper application, had not been doubted in the Court of Appeal or above. It was acknowledged by the Supreme Court, in Lambeth London Borough Council v Secretary of State for Housing, Communities and Local Government and others [2019] UKSC 33; [2019] EGLR 42 but the I’m Your Man cases were liable to misunderstanding and misapplication. They dealt only with a particular question which arose in the interpretation of planning permissions that truly fell within their reach. They should not be taken as establishing some larger principle than in fact they did: Winchester City Council v Secretary of State for Communities and Local Government [2015] EWCA Civ 563 applied.
In the present case, the inspector had clearly grasped and applied the authorities, undertaking the interpretation of the two planning permissions, to ascertain what use they had actually authorised. She correctly distinguishing the I’m Your Man authorities, directing herself properly on the relevant principles of law, and concluding that the use described in the 1987 planning permission was the existing lawful use of the appeal site.
(4) In law, the question of whether a material change of use had occurred in the relevant planning unit was resolved by considering whether there had been a change in the character of the use. That was a matter of fact and degree for the decision-maker. In this case, the inspector had resolved the essential question. She clearly understood that a proposed use could be of the same type as an existing lawful use but still be a material change of use: In East Barnet Urban District Council v British Transport Commission [1962] 2 QB 484 considered.
The inspector found that the 1987 planning permission was not merely for a “caravan site” but a “caravan site at which caravans provide both permanent residential accommodation and holiday accommodation, the year-round use of the latter being prevented by condition”. Having come to that conclusion, she found, lawfully, that the proposed use would be a change from the permitted use because it would encompass the use of any and all caravans on the site to provide permanent residential accommodation, with no holiday use at all.
She was entitled to find, as a matter of fact and degree, that the proposed use would be a material change of use since it would bring about a substantial and fundamental change in the character of the appeal site’s use. Her conclusion on that issue was the product of evaluative judgment on the facts she found. Based as it was on findings of fact which were not themselves the subject of any attack, that conclusion was wholly sound in law.
Andrew Fraser-Urquhart QC (instructed by Stephen Scown LLP) appeared for the appellant; Andrew Parkinson (instructed by the Treasury Solicitor) appeared for the first respondent; Timothy Leader (instructed by Devon County Council) appeared for the second respondent.
Eileen O’Grady, barrister