Permitted development rights have been brought into sharp focus recently, with the case of Oates v Secretary of State for Communities and Local Government [2017] EWHC 2716 (Admin), writes Alex Ground.
The judgment shines a light on planning permission for change of use and whether this includes external changes; additional planning permission is sometimes needed. It also demonstrates the risks if that additional planning permission is not granted.
Counting chickens
The claimant is the freeholder of three former chicken sheds. Planning permission (by virtue of prior approvals) was granted for their change of use to B1 and B8, which was implemented. A further change of use was then sought to residential pursuant to permitted development rights for which a prior approval was granted. An application was made for changes to the exterior. Before that permission was granted, the changes to the exterior were carried out and works to effect the change of use were made to the interior. The works included the erection of a metal exo-skeleton around each of the existing buildings. The properties were then lived in. However, the application for the external changes was then refused.
Key points
■ Permitted development rights for change of use often do not extend to granting permission for external changes (or, if they do, are limited) so it needs to be considered if an additional planning permission is required
■ If external changes are made without planning permission, then a “new building” could be created (a question of fact and degree depending on the extent of those changes) such that the original building which benefited from a prior approval no longer exists
■ If it is decided that a “new building” has been created then, unless planning permission is granted, it could be unlawful and be the subject of an enforcement notice
■ Can an enforcement notice only require new additional works to be removed, or can it require demolition of buildings altered in breach of planning control?
An enforcement notice was then served requiring the demolition of all buildings, removal of the resultant material and making good of the land. The breach was
stated to be that new buildings had been erected without permission. The enforcement notice was appealed
alongside the refusal of planning permission for the external changes. A co-joined public inquiry was then held.
The inspector found that an original building did not need to be demolished for it to become a new building (following Hibbitt v Secretary of State for Communities and Local Government [2016] EWHC 2853 (Admin); [2017] EGLR 6), that the permitted change of use did not include permission for operational development and that it applied only to the sheds which had existed prior to the operational development, making the change of use approval not capable of implementation. She removed the obligation to make good the land as it was vague and subjective but otherwise upheld the enforcement notice and rejected the appellant’s request for planning permission.
The court’s view
Those decisions were then challenged by way of a section 289 statutory review of the enforcement notice appeal decision co-joined with a section 288 review of the related, unsuccessful planning appeal. The case concerns
the Mansi principle (Mansi v Elstree Rural District Council [1964] 189 EG 341) that an enforcement notice may not lawfully seek to restrict planning rights. It was argued that the local planning authority should only ever have required the removal/reversal of the new external works, and that the original buildings could have lawfully remained.
It was also argued that the inspector, on finding that the notice requirement to make good the land was too vague, should have concluded that the notice as a whole was a nullity.
The High Court rejected the challenges and held that it was open to a planning inspector to find that an individual’s modifications of existing buildings on his site amounted to the erection of three new buildings in breach of planning control and that the Mansi principle related only to uses and did not extend to operational development (following Mohamed v Secretary of State for Communities and Local Government [2014] EWHC 4045 (Admin)).
In determining whether a vague requirement in the enforcement notice served on him rendered the whole notice a nullity, the High Court also held that the inspector was entitled to conclude that the defect did not make the notice non-compliant with statutory requirements; that exercise should be approached in a way that was not unduly technical or formalistic. Even if one requirement of an enforcement notice was
found to be hopefully vague it did not mean that the remainder of the enforcement notice was, or that the other requirements (if clear) could not be preserved by the inspector deleting the vague requirement.
Further scrutiny
Permission to appeal has now been granted by the Court of Appeal on the issue of whether the appellant should be entitled to retain what remains of the original buildings and use them for the lawful use available but for the unauthorised external changes.
In granting permission, the court accepted that the appeal raised a point of principle of wider importance and also “stood a real prospect of success”.
The appeal (to be heard in July) will give the Court of Appeal the opportunity to consider this little-considered part of the enforcement regime – one which has wide-ranging implications for development carried out under PDRs, where often it is desirable to carry out additional operational development alongside the change of use. Until the issue is decided, developers would be well advised to ensure that any planning permission that is required for external changes is granted before those changes are made.
Alex Ground is a partner at Russell-Cooke
