Manchester City Council v Secretary of State for Housing, Communities and Local Government – Town and country planning – Planning permission – Conditions – Inspector appointed by appellant secretary of state refusing to impose conditions on grant of planning permission as unnecessary – High Court allowing challenge by respondent local authority to that decision – Appellant appealing – Whether planning conditions necessary to prevent changes of use permitted by Use Classes Order or General Permitted Development Order – Appeal dismissed
A property at 3 Grandale Road in Manchester was originally built as a two-storey dwelling house with two principal rooms at each floor level. In 2019, the respondent local authority served an enforcement notice alleging a breach of planning control by a material change of use of a dwelling house to commercial use without planning permission.
Two of the recipients of the enforcement notice appealed to the appellant secretary of state under section 174 of the Town and Country Planning Act 1990. The respondent opposed the appeal, contending that planning permission ought not to be granted, and the property returned to its former use as a single dwelling house.
As a fallback position, the respondent argued that if planning permission were granted it should be subject to conditions that the uses permitted were limited to Class A1 (travel and ticket agencies), Class B1 (offices) and Class D1 (therapy/medical treatment room) in the Town and Country Planning (Use Classes) Order 1987 (UCO). Further, notwithstanding the Town and Country Planning (General Permitted Development) Order 2015 (GPDO), the premises should not be used for any other purpose within those classes.
The inspector granted planning permission but decided that conditions specifying and limiting the commercial uses of the property were unnecessary because the planning permission granted specified those uses.
The respondent challenged that decision. It was common ground that a mixed-use planning unit could not benefit from the UCO or GPDO. The respondent argued that each commercial unit was a separate planning unit that could, subject to planning conditions, take advantage of the UCO and GPDO. The court held that the planning inspector was wrong to refuse to impose the suggested conditions on the ground that they were unnecessary: [2021] EWHC 858 (Admin). The appellant appealed.
Held: The appeal was dismissed.
(1) The appellant sought to uphold the inspector’s decision on the basis that the planning permission was granted for a mixed use of the property as a whole which did not benefit from the changes in use permitted by section 55(2)(f) of the 1990 Act. Therefore, the inspector correctly concluded that the suggested conditions were unnecessary. The judge impermissibly exercised his own planning judgment to decide whether there was a single or multiple planning units.
It was agreed that, if the change of use from residential to commercial resulted in the creation of four planning units, it could not be said that the suggested conditions were unnecessary to prevent further change. However, if there was a mixed use of a single planning unit which did not fall within any use class, the inspector was entitled to conclude that the proposed conditions were unnecessary: Belmont Riding Centre Ltd v First Secretary of State [2003] EWHC 1895 (Admin); [2004] 2 PLR 8 and Fidler v First Secretary of State [2003] EWHC 2003 (Admin); [2004] 1 PLR 1 considered.
(2) What the inspector decided was, in the first place, a question of interpretation of the decision letter. The inspector did not give any explicit consideration to the identification of the appropriate planning unit. Nor did he mention the phrase “mixed use” in the decision letter. If he meant to say that there was a single planning unit with a mixed use, that was a surprising omission. What he decided had to be a process of objective interpretation of what he did say. The key point was the inconsistency between the proposition that a mixed use of a single planning unit did not fall within any use class, and both the inspector’s reference to “four commercial units” and also his description of the uses of each unit by reference to a use class.
Those statements could not sensibly co-exist. In the first place, a planning unit with a mixed use was a single planning unit. Secondly, the use of that single unit did not fall within any use class. The description of the development as four units, each with its own use class, necessarily entailed the proposition that each unit was a separate planning unit. If there were only one planning unit, then there would only have been one “commercial unit” with a mixed use that did not fall within any use class. That was reinforced by the description of the alleged breach of planning control in the enforcement notice, which also referred to four units, each with its own use class, and the breach of planning control as the formation of those units. The inspector also acknowledged that planning permission was being granted for the formation of four commercial units.
(3) It followed that, as a matter of interpretation of the decision letter, the inspector granted planning permission for a change of use which resulted in four separate planning units, each with its own use class. Consequently, changes of use of a particular unit within the applicable use class (as well as changes between use classes permitted by the General Permitted Development Order) would not amount to development requiring planning permission, and would therefore be permitted in the absence of any conditions limiting such changes. The limited verbal description of those uses within the grant would not be enough. In those circumstances, the inspector failed to apply the distinction between a limited description of a use permitted by the grant of planning permission and a condition prohibiting further change and wrongly concluded that conditions limiting further changes of use were unnecessary: I’m Your Man Ltd v Secretary of State for the Environment [1998] 4 PLR 107 considered.
The judge found that the only rational conclusion was that there were four planning units. That amounted to a finding that the inspector had made an error of law, the consequence of which was that the inspector made a further error of law – namely to decide that because the description of what was permitted was expressed in limited terms, there was no need for any conditions precluding further changes of use. That was not an exercise of planning judgment by the judge: it was the identification of an error of law made by the inspector.
Freddie Humphreys (instructed by the Treasury Solicitor) appeared for the appellant; Horatio Waller (instructed by Council Legal Services) appeared for the respondent.
Eileen O’Grady, barrister
