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Planning units - again

Roderick Morton reports on a case which serves as a reminder of the importance of starting with the planning unit - even inspectors get it wrong.

In Manchester City Council v SSCLG and Chaudry and Pathak [2021] EWCA Civ 1920 the LPA (local planning authority) served an enforcement notice on a property which had originally been built as a dwellinghouse and was now being used as 4 commercial units (listed in the notice as “travel agent A1, two courier offices B1 and a therapy/medical room D1”). A ground (a) appeal was made. The council opposed permission but contended, as a fall back, that it should be subject to two conditions which sought to limit the uses to the existing uses to prevent further changes within the Use Classes Order or under PD.

The inspector allowed the ground (a) appeal and granted permission. However, he thought that the conditions were unnecessary because the permission specified the uses and any change would be a change of use requiring permission. The conditions were not imposed. The LPA appealed.

In the High Court, Mr Justice Knowles held that the inspector was wrong to refuse to condition the permission. The Secretary of State appealed.

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At the Court of Appeal, Lewison LJ began with a case law review and a reminder that:

  • the starting point, and usually the end point, in interpreting a permission is the natural meaning of the words in the permission letter (Lambeth LBC v Secretary of State for Housing, Communities and Local Government [2019] UKSC 33[2019] PTSR 1388);
  • there is no scope to look at extrinsic evidence of meaning unless there is ambiguity in the words used and courts should be wary of interpretations which create ambiguity (Lambeth and Melanesian Mission Trust Board v Australian Mutual Provident Society [1997] 2 EGLR 128);
  • uses which go beyond the permission are a change of use, and if material, a material change of use and therefore development (s55(1));
  • a change within a use class is not development (s55(2));
  • the use classes order does not cover mixed uses (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);
  • the permission is limited to what is on the face of the permission (Cotswold Country Grange Park llp v Secretary of State for Communities and Local Government [2014] EWHC 1138 (Admin), [2014] JPL 981);
  • if a council wants to restrict the permission further, it must condition it (I'm Your Man Ltd v Secretary of State for the Environment (1998) 77 P & CR 251)

The Secretary of State sought to defend the decision on the basis that the inspector granted permission for a mixed use. Hence any change to the elements in the mixed use was a change of use and, if material, development requiring permission. There was no need, therefore, to restrict the uses by condition. The LPA argued that the inspector granted permission for 4 separate planning units. It was common ground that, if there were 4 planning units, it would have been appropriate to restrict by condition further changes in use which would otherwise be allowable under the UCO or PD.

In his decision, the inspector was silent on whether there was one unit or four. He did not use the words “mixed use” anywhere in the decision. The permission was for the matters set out in the enforcement notice breach allegation which described 4 units. The notice, and the inspector, described each of the units by reference to a use class but no use class covers a mixed use. The Court of Appeal therefore interpreted the permission as granting permission for four planning units.

At first instance, the High Court judge had also found that there were four units.  The Secretary of State suggested that this was a matter of planning judgment and the court should not have substituted its own view for that of the inspector. Appeals lie only on points of law, not matters of planning judgment.

The Court of Appeal said that the inspector had misinterpreted the law and that had lead him to the wrong conclusion on the planning judgment. So the appeal was on that misinterpretation rather than the planning judgment.

Comment

The inspector can perhaps be forgiven for his confusion. The notice was a single notice for four planning units, rarely a good idea. 

And the interaction between the principles in I’m Your Man (if you want to limit the permission you must condition it) and Wall v Winchester or Cotswold Country Grange Park (but you don’t need to condition something which would be a material change of use because it is not covered by the permission anyway) can be difficult to apply in practice, particularly where the situation is the “what if” one of condition writing rather than the “what happened” one of enforcement.

But the case is a reminder that the starting point must always be determining the planning unit because so much flows from that determination.

Roderick Morton is a partner at Ivy Legal.

 

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