In Manchester City Council v Secretary of State for Housing, Communities and Local Government [2021] EWCA Civ 1920; [2021] PLSCS 217, the Court of Appeal overturned an inspector’s decision that failed to properly limit the uses permitted by a planning permission.
The case concerned the change of use of a dwellinghouse to use as four commercial units, each operating as different businesses, without planning permission. When the council served an enforcement notice in respect of the unauthorised uses, it was successfully appealed. In granting planning permission, the inspector permitted use of each of the units for the four different specified commercial uses with reference to the use classes contained in the Town and Country Planning (Use Classes) Order 1987 (which was the relevant piece of legislation at the time).
The council challenged the inspector’s decision, alleging that two conditions should have been attached to the permission to limit the use of the units to those specified and to prevent any future change of use within the same use classes or under permitted development rights. The secretary of state argued that as the permission covered all four units, this resulted in a mixed use and therefore such conditions were unnecessary, with the description of development sufficiently limiting the uses permitted.
In upholding the High Court’s decision in favour of the council, the Court of Appeal found that the description of development did not sufficiently limit the use of the units. The court reiterated the point made in I’m Your Man Ltd v Secretary of State for the Environment [1998] EWHC 866 (Admin); [1998] 4 PLR 107 that while the description contained in a planning permission may be limited, this alone does not work to prohibit future changes to use in the way that conditions can.
While the court did confirm that since a mixed use does not fall within a specified use class it cannot benefit from the ability to change its use without express permission, it found that in this situation the permission created four individual planning units and not one, mixed-use unit. The court referred back to the inspector’s decision in which he had referred to each unit separately, identifying their different uses and use classes, with no reference to any mixed use. The court concluded that the limitation contained in the description of development had no legal effect and therefore the inspector’s decision contained an error of law as it concluded that conditions limiting any further changes of use were not necessary.
This case acts as a clear and important reminder to inspectors and local authorities alike about the need to not only carefully consider what a planning permission is intended to permit but to ensure that the drafting of the grant actually achieves this. It was fortunate in this case that the error was one in which the court could intervene.
Erica Snellgrove is a solicitor in the planning and environmental team at Irwin Mitchell
