In R (on the application of Peel Land and Property Investment plc) v Hyndburn Borough Council [2012] EWHC 2959 (Admin); [2102] PLSCS 231, the claimant sought by various means to establish that certain section 106 obligations no longer applied to a number of retail units that it owned. One specific argument it put forward relied, for technical reasons, upon section 75(3) of the Town and Country Planning Act 1990. The court did not accept that section 75(3) was engaged in this case, but its decision on the point prompts some consideration of why section 75(3) is generally needed.
Section 75(3) provides that where planning permission is granted for the erection of a building, and it does not specify the purposes for which the building is permitted to be used, the planning permission shall be construed to include permission to use the building for the purpose for which it is designed. The courts have held that “designed” in this context means “intended” rather than “architecturally designed”. For instance, when an outline planning permission is granted architectural design drawings will rarely have been submitted with the planning application.
It is necessary to think back to the scheme of the 1990 Act in keeping the two forms of development that it recognises, ie operational development and material change of use, separate and distinct. The use of land and the erection of buildings upon it are different kinds of development with different consequences. For instance, if a building intended to be used as a dwellinghouse is erected on agricultural land, both operational development and a material change of use are involved and each requires planning permission. If planning permission had been sought only for the erection of a building, the use of that building as a dwellinghouse would be unlawful without section 75(3). It “saves” the use of the building as a dwellinghouse.
In Peel Land, the point taken by the court was that where an application for planning permission does not involve any material change of use, then section 75(3) has no application simply because it is not necessary. And in Peel Land, the applications in question did not involve any material change of use. They were simply applications for planning permission to carry out works of alteration to a number of existing retail units, which themselves had been erected under earlier planning permissions.
John Martin is a freelance writer
