Court overturns inspector’s ban on permanent occupation at holiday lets

The High Court has quashed a planning inspector’s decision prohibiting permanent occupation at homes intended originally as holiday lets over the interpretation of section 73 of the Town and Country Planning Act 1990.

The judge, Mrs Justice Farbey said the case raised two questions about the proper interpretation of section 73 of the Act, which deals with applications for planning permission to develop land without compliance with conditions attached to previous planning permission.

The first was whether the inspector had the power to consider an appeal against Newark & Sherwood District Council's refusal of a new section 73 planning permission when the application for the new permission sought changes to conditions in two separate previous planning permissions. In the second question, the court was asked if the inspector misdirected herself by concluding that the appeal could not succeed as section 73 does not permit the removal of conditions such that the new planning permission would give rise to a fundamental change to the use of the land.

The land at Kilvington Lakes, Vale of Belvoir, was mined for gypsum until 2006 and is mainly grassland centred around a number of lakes with a number of derelict agricultural buildings. Newark & Sherwood District Council in 2015 granted planning permission to a previous developer for 34 self-catering holiday units, a 25-bed inn, watersports building, storehouse and outfitters along with a commercial and educational unit, nature trails, cycle trails, pathways and family facilities. This was subject to conditions that the premises must be used for holiday accommodation only, the site operator must maintain a register of occupiers for each year and properties must not be occupied by the same person for more than six weeks in any year.

Farbey J noted the condition about holiday accommodation meant the site lost the benefit of the Town and Country Planning (Use Classes) Order 1987 and otherwise could have been used for residential accommodation without that being treated as requiring fresh planning permission.

In June 2019, a second developer applied under section 73 to remove the condition prohibiting occupation for more than six weeks. Newark & Sherwood refused, but in January 2020 a planning inspector allowed the developer's appeal and issued a new planning permission which removed the condition. The other two conditions remained unchanged. In December 2020, the claimant, Freddie Reid, submitted a planning application under section 73 for the removal of both.

The council refused to consider the application on the grounds that the removal of conditions would lead to a change that required a fresh application for full planning permission. It told Mr Reid in January 2021 it was "satisfied that it [had] no power to entertain this application under section 73." Mr Reid appealed against the non-determination of his application, but the Planning Inspectorate refused to deal with it, on the basis that an inspector would have no jurisdiction to determine the appeal as the local planning authority had said it would not determine the application.

After further correspondence the Secretary of State for Levelling Up, Housing and Communities conceded that there was a right of appeal and this proceeded. The inspector decided that were the conditions removed, the 34 units could be used unrestrictedly, which would conflict with the original description of the development as self-catering holiday units. She said the fact that they were holiday units and not unrestricted residential uses was fundamental to them being allowed in a location where the development of unrestricted residential uses is strictly controlled by both local and national policies.

Mr Reid argued the inspector erred in law in holding that a section 73 planning application could not be made for planning permission for development of a description within a use class without a condition which removes the benefits of the use classes order. Farbey J said: “The inspector asked herself whether the use of the site for ‘unrestricted residential uses’ would be inconsistent with the description of development restricted to holiday accommodation. “She concluded that the change from holiday to residential accommodation would not be consistent with the description. In considering this question, she ought to have taken into consideration that what can be done with the use of the land may not be exhaustively written into the description but may arise by the operation of law.”

The judge said the only bar to using the land for residential purposes were the conditions denying the benefit of the use classes order. “The removal of that bar would as a matter of fact change the use of the land because the claimant proposes to build residential accommodation,” Farbey J said. “But the removal of the bar cannot possibly lead to any alteration of the operational part of the permission (the description) because the operational part of the permission would remain identical.”

Farbey J said the inspector treated the conditions as having changed the description, taking the view that it precluded development permitted under the order and “she has thereby curtailed the operation of the order in a way which could not have been intended”. She went on: “That is a far cry from saying that the claimant should have carte blanche to build houses for permanent residency.

“Whether he should be permitted to build permanent homes is a matter of planning judgment. Part of that planning judgment is, as the inspector noted, that the site is in a location where the development of unrestricted residential uses is strictly controlled.” Given this conclusion it was “difficult to see how the inspector's overall decision can stand”, Farbey J said.

Mark Smulian is a freelance journalist specialising in local government, law, travel, transport, housing, construction and planning.