Manchester City Council v Secretary of State for Housing, Communities and Local Government

Section 55 of the 1990 Act provides the definition of ‘development’, for which planning permission is generally required by virtue of s 57(1).

Section 55(1) provides:

“(1)

Subject to the following provisions of this section, in this Act, except where the context otherwise requires, ‘development,’ means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land.”

Section 57(1) of the 1990 Act provides:

“(1)

Subject to the following provisions of this section, planning permission is required for the carrying out of any development of land.”

Section 55(2) provides, so far as material:

“(2)

The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land -

…

(f)

in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section, the use of the buildings or other land or, subject to the provisions of the order, of any part of the buildings or the other land, for any other purpose of the same class.

…”

Thus, by s 55(2)(f), a change in the use of land within the same Use Class prescribed by the Use Classes Order is deemed not to constitute development for which permission is required by virtue of s 57(1).

The various Use Classes are set out in the Schedule to the Use Classes Order. At the relevant time, Classes A1, B1, C3 and D1 were defined as follows (there have since been changes to the classification system):

“PART A

Class A1. Shops

Use for all or any of the following purposes -

(a)

for the retail sale of goods other than hot food,

(b)

as a post office,

(c)

for the sale of tickets or as a travel agency,

(d)

for the sale of sandwiches or other cold food for consumption off the premises,

(e)

for hairdressing,

(f)

for the direction of funerals,

(g)

for the display of goods for sale,

(h)

for the hiring out of domestic or personal goods or articles,

(i)

for the reception of goods to be washed, cleaned or repaired,

where the sale, display or service is to visiting members of the public.

Hence, for example, by virtue of s 55(2)(f) and Class A1, planning permission would not be required to convert a travel agent into a shop selling sandwiches for consumption off the premises.

Where premises are a composite of different uses (ie, a ‘mixed use’), that mixed use does not fall within any Use Class under the Use Classes Order. Thus, a change in any single component within the composite use will, if material, constitute development requiring planning permission: Belmont Riding Centre Ltd, supra, [31]. There, Richards J said:

“31.

… If the riding centre activities existed, they existed as part of a mixed use across the whole planning unit including the application area – a mixed use consisting of residential, equestrian and agricultural uses or activities. That there was a mixed use was found by Mr. Baldock and was common ground before the present inspector. I accept Mr. Strachan's submission that such a mixed use does not fall within the Use Classes Order and cannot therefore benefit from the exception in s.55(2)(f) …”

Under ss 59-60 of the 1990 Act, planning permission may be granted by an order made by the Secretary of State (known as a development order) in respect of development for which permission would otherwise be required. The GPD Order accordingly grants planning permission, subject to conditions, for the change of use of land from a use within prescribed Use Classes to prescribed uses within other Use Classes. Article 3 provides:

“3(1) Subject to the provisions of this Order … planning permission is hereby granted for the classes of development described as permitted development in Schedule 2.”

So, for example, Part 3 (Changes of use) (Class A – restaurants, cafes, takeaways or pubs to retail) in Sch 2 provides:

“Permitted development

A.

Development consisting of a change of use of a building from a use falling within Class A3 (restaurants and cafes), A4 (drinking establishments) or A5 (hot food takeaways) of the Schedule to the Use Classes Order, to a use falling within Class A1 (shops) or Class A2 (financial and professional services) of that Schedule.”

Thus, changing the use of premises from a restaurant to a shop not selling hot food does not need planning permission by virtue of this provision.

A change of use within a Use Class which would otherwise be lawful will be removed from the ambit of the Use Classes Order if it would be a breach of a planning condition attached to the grant of permission. Likewise, a change of use from one Use Class to another will be removed from the ambit of the GDP Order if it would be a breach of condition. In other words, the operation of these statutory provisions can be excluded by appropriately worded planning conditions. In Carpet Décor (Guildford) Ltd v Secretary of State for the Environment [1981] JPL 806,Sir Douglas Frank QC said at pp807-808:

“As a general principle, where a local planning authority intend to exclude the operation of the Use Classes Orderor the General Development Order, they shall say so by an imposition of a condition in unequivocal terms, for in the absence of such a condition it must be assumed that those orders will have effect by operation of law.”

This principle was upheld by the Court of Appeal in Dunnett Investments Ltd v Secretary of State for Communities and Local Government [2017] EWCA Civ 192, [37]:

“37.

In relation to the interpretation of, specifically, a planning condition which is said to exclude the operation of the GPDO, other authorities are of some assistance. From them, the following themes can be discerned.

(i)

It is rightly common ground that a planning condition on a planning consent can exclude the application of the GPDO (see Dunoon Developments v Secretary of State for the Environment and Poole Borough Council (1993) 65 P&CR 101 (‘Dunoon Developments’)).

(ii)

Exclusion may be express or implied. However, because a grant of planning permission for a stated use is a grant of permission for only that use, a grant for a particular use cannot in itself exclude the application of the GPDO. To do that, something more is required (see, eg, Dunoon Developments at [107] per Sir Donald Nicholls VC).

(iii)

In Carpet Décor (Guilford) Limited v Secretary of State for the Environment (1981) 261 EG 56, Sir Douglas Frank QC sitting as a Deputy High Court Judge said that, because in the absence of such a condition the GPDO has effect by operation of law, the condition should be in ‘unequivocal terms’. Although ‘unequivocal’ was used by Mr Katkowski in his written argument, during the course of debate he accepted that that term was now less appropriate, given the modern trend away from myopic focus upon the words without proper reference to their full context. However, he submitted (and I accept) that, to exclude the application of the GPDO, the words used in the relevant condition, taken in their full context, must clearly evince an intention on the part of the local planning authority to make such an exclusion.”

Authoritative guidance on the correct interpretive approach to an Inspector’s decision was given by Lindblom J (as he then was) in Roger Wood v Secretary of State for Communities and Local Government [2015] EWHC 2368 (Admin), [40]-[41]:

“40.

The guiding principles on the interpretation of planning permissions are clearly established in the relevant case law. The proper interpretation of a planning permission is a matter of law for the court (see the judgment of Keene LJ, with whom Sir Anthony Clarke MR and Toulson LJ agreed, in Barnett v Secretary of State for Communities and Local Government [2009] EWCA Civ 476, at paragraph 28). 41. In Ashford Borough Council, the case to which the inspector referred in paragraph 25 of the decision letter, the court had to construe an outline planning permission. Keene J, as he then was, identified (at pp19 and 20) five ‘legal principles applicable to the use of other documents to construe a planning permission’. In summary: first, ‘[the] general rule is that in construing a planning permission which is clear, unambiguous and valid on its face, regard may only be had to the planning permission itself, including the conditions (if any) on it and the express reasons for those conditions …’ (see Slough Borough Council v Secretary of State for the Environment (1985) JPL 1128, and Miller-Mead v Minister of Housing and Local Government [1963] 2 QB 196); secondly, it is not appropriate to refer to the planning application itself and ‘other extrinsic evidence’ unless the application is incorporated into the permission by reference, the reason for this being ‘that the public should be able to rely on a document which is plain on its face without having to consider whether there is any discrepancy between the permission and the application’ (see Slough Borough Council v

Secretary of State, Wilson v West Sussex County Council [1963] 2 QB 764, and Slough Estates Ltd v Slough Borough Council [1978] AC 958); thirdly, if the application is to be incorporated into the permission by reference, the words governing the description of the development permitted must make it clear that the application forms part of the permission (see Wilson and Slough Borough Council v Secretary of State); fourthly, ‘[if] there is an ambiguity in the wording of the permission, it is permissible to look at extrinsic material, including the application, to resolve that ambiguity …’ (see Staffordshire Moorlands District Council v Cartwright (1992) JPL 138); and fifthly, ‘[if] a planning permission is challenged on the ground of absence of authority or mistake, it is permissible to look at extrinsic evidence to resolve that issue …’ (see Slough Borough Council v Secretary of State, and Co-operative Retail Services v Taff-Ely Borough Council (1979) 39 P & CR 223 and (1981) 42 P. & C.R. 1).”

In I’m Your Man Ltd, supra, pp257-258 it was established that any intended restriction or limitation on the grant of planning permission in respect of a planning unit must be expressed by way of condition rather than by being ‘built in’ to the description of the permission being granted.

The principle was applied by Lang J in Lambeth London Borough Council, supra. Planning permission had been granted for a DIY store which purported to restrict the goods which could be sold to non-food goods. The restriction was not expressed as a condition, and was held by Lang J therefore not to be effective in law. She accordingly dismissed the local authority’s appeal against the Inspector’s decision which had held, in effect, the restriction on the sale of food not to be of legal effect. She said:

“49.

In I’m Your Man Ltd v Secretary of State for the Environment (1998) 77 P & CR 251 Robin Purchas QC, sitting as a deputy judge of the Queen’s Bench Division, held that a grant of planning permission for use of a warehouse/factory for a temporary period of seven years had granted permanent, not temporary, permission because the limit on the period of the permission should have been expressed by way of condition, not merely in the description of the permission. He concluded, at p257, that the TCPA 1990 did not expressly provide a power for the imposition of limitations on the grant of planning permission. Under the statutory scheme, such limitations could only be imposed by conditions, which could then be enforced.

50.

The reasoning in the I’m Your Man case was upheld by the Divisional Court in R (Altunkaynak) v Northamptonshire Magistrates’ Court [2012] PTSR D27; [2012] LLR 458 and by the Planning Court in Cotswold Grange Country Park LLP v Secretary of State for Communities and Local Government [2014] JPL 981. Both these cases concerned substantive limitations on the permission granted, not merely temporal ones. In the Altunkaynak case Richards LJ said, at para 39: ‘The relevant principle, drawn from the wording of the statute, is a general one: if a limitation is to be imposed on a permission granted pursuant to an application, it has to be done by condition.’ In the Cotswold Grange case Hickinbottom LJ cited this passage and said, at para 21, that it ‘succinctly and perfectly encapsulates the principle derived from the I’m Your Man case.’”

The local authority appealed, but the Court of Appeal dismissed its appeal. This line of cases was approved: [29]-[33]. Lewison LJ specifically approved what Richards LJ had said in Altunkaynak, supra, [39], which Lang J quoted.

The local authority appealed to the Supreme Court, which allowed its appeal, but, as I have said, did not doubt the correctness of the I‘m Your Man principle. Lord Carnwath said at [26] of his judgment:

“26.

In this court Mr Reed for the council repeated and developed his arguments in the Court of Appeal. In line with the decision of the High Court in I’m Your Man Ltd v Secretary of State for the Environment [1998] 4 PLR 107, he did not seek to argue that the proposed wording could be treated as an enforceable ‘limitation’. He accepted the need to establish that the permission was subject to a legally effective condition in that form.”

I have come to the conclusion that Mr Waller’s submissions are, in substance, correct, and that the way in which the Inspector expressed his decision did not give legal

Where there is a material change of use of buildings or other land, then by s 55(1) of the 1990 Act, that change of us constitutes development for which, by s 57(1), planning permission is required unless an exception applies. This issue raises the question of what comprises the ‘land’ in question for the purposes of determining whether there has been a material change of use. Such land, correctly identified, is known as the ‘planning unit’.

Telling & Duxbury’s Planning Law and Procedure (16^th Edn, Oxford) says at [6.44]:

“We may now consider the second ‘leg’ in the definition of development – namely, ‘the making of any material change in the use of any buildings or other land’. The buildings or land under consideration in any given case are often referred to as

The issue can be illustrated by the facts of Church Commissioners for England v Secretary of State for the Environment (1995) 71 P & CR 73. The applicants were the landlords of the Metro Centre near Gateshead. This is a large shopping centre with a number of retail units, restaurants, public walkways, and other facilities. There were over 300 units in total. The applicants sought a certificate of lawful use in respect of a vacant retail unit, which had been a furniture shop (Class A1), but which they wished to convert into a restaurant (Class A3). They argued that the Metro Centre itself was the correct planning unit against which to judge whether or not there would be a material change of use if the conversion went ahead, and that only a substantial change in the retail purpose of the Centre would constitute such a change of use. Rejecting the applicants’ contention, the judge held that the correct planning unit was the retail unit itself, and not the Metro Centre as a whole, and thus that permission was required for a change of use for that unit from Class A1 to Class A3.

The author of Bowes, Planning Law (14^th Edn, Oxford), puts the matter this way at [6.129]:

“Similarly, where a motorway services area includes a variety of shops providing a range of facilities for travellers such as eating areas, general shops, and an amusement arcade, each individual shop may constitute a separate planning unit, so that a change of use from any unit to a betting office would involve a change of use and, if material, require planning permission.”

The question arising in this case can be illustrated by the following example. Suppose Flywise Travel closed down and Dr Pathak wished to change the use of Room 1 from a travel agent to a sandwich shop (both Class A1 uses). Would the planning unit be Room 1, or the whole property at 3 Grandale Street ? If the former, then because of the I’m Your Man principle, the purported restriction imposed by the Inspector would be of no effect and the change of use would be lawful even in the absence of planning permission because of s 55(2)(f) of the 1990 Act. If the latter, however, then because

Important guidelines for resolving the issue of what the planning unit is were given by Bridge J (as he then was) in Burdle v Secretary of State for the Environment [1972] 1 WLR 1207. He said at p1212:

“What, then, are the appropriate criteria to determine the planning unit which should be considered in deciding whether there has been a material change of use ? Without presuming to propound exhaustive tests apt to cover every situation, it may be helpful to sketch out some broad categories of distinction.

First, whenever it is possible to recognise a single main purpose of the occupier's use of his land to which secondary activities are incidental or ancillary, the whole unit of occupation should be considered. That proposition emerges clearly from G. Percy Trentham Ltd. v. Gloucestershire County

Council [1966] 1 WLR 506, where Diplock LJ said, at p513:

“What is the unit which the local authority are entitled to look at and deal with in an enforcement notice for the purpose of determining whether or not there has been a ‘material change in the use of any buildings or other land’? As I suggested in the course of the argument, I think for that purpose what the local authority are entitled to look at is the whole of the area which was used for a particular purpose, including any part of that area whose use was incidental to or ancillary to the achievement of that purpose.”

But, secondly, it may equally be apt to consider the entire unit of occupation even though the occupier carries on a variety of activities and it is not possible to say that one is incidental or ancillary to another. This is well settled in the case of a composite use where the component activities fluctuate in their intensity from time to time, but the different activities are not confined within separate and physically distinct areas of land.

Thirdly, however, it may frequently occur that within a single unit of occupation two or more physically separate and distinct areas are occupied for substantially different and unrelated purposes. In such a case each area used for a different main purpose (together with its incidental and ancillary activities) ought to be considered as a separate planning unit.

To decide which of these three categories apply to the circumstances of any particular case at any given time may be difficult. Like the question of material change of use, it must be a question of fact and degree. There may indeed be an almost imperceptible change from one category to another Thus, for example, activities initially incidental to the main use of an area of land may grow in scale to a point where they convert the single use to a composite use and produce a material change of use of the whole. Again, activities once properly regarded as incidental to another 1213use or as part of a composite use may be so intensified in scale and physically concentrated in a recognisably separate area that they produce a new planning unit the use of which is materially changed. It may be a useful working rule to assume that the unit of occupation is the appropriate planning unit, unless and until some smaller unit can be recognised as the site of activities which amount in substance to a separate use both physically and functionally.”

In the present case the Inspector did not refer to planning units and did not directly indicate whether each of the four business rooms at 3 Grandale Street was a planning unit. To that extent, his decision is ambiguous. There are points which can be made both ways. For example, Mr Waller pointed to the fact that the Inspector referred in

In my judgment it is clear, reading the Inspector’s decision with the extraneous material (which I judge I am allowed to do because the decision is ambiguous, per the guidance in Roger Wood, supra), then the only rational conclusion is that each of the four rooms within 3 Grandale Street comprises a planning unit, so that if there was a

As Burdle, supra, makes clear, the question of what the planning unit is in any given case is one of fact and degree. In my judgment, the following facts lead to the conclusion that each room is a planning unit, so that if there were to be a change of use in one of the rooms, the land involved against which that change would properly fall to be measured would be the room and not the whole Property. First, it is clear from the Notice that there are four rooms within 3 Grandale Street which at the relevant time were occupied by four different commercial businesses operating independently. Second, Dr Pathak’s Enforcement Notice Appeal Form referred in terms to each room being let under a separate lease. From this I infer that each business was in exclusive occupation of its room (subject to the usual landlord’s rights of entry and the terms of the lease). Third, the Notice was served on each business separately under statutory provisions requiring ‘the occupier of the land to which it relates’ to be served with it (s 172(2), 1990 Act). Fourth, I infer that each room formed a self-contained lockable unit to which only the occupier and the landlord had lawful entry. Mr Humphreys did not dispute – and in fact expressly accepted – that I could properly infer each room would be lockable and accessible only by the tenant and the landlord. It seems to me self-evident that that must be so. This conclusion is not, in my judgment, affected by the fact that there was a shared common entrance to 3 Grandale Street, and shared bathroom and kitchen facilities.

I take the points made by Mr Humphreys in support of his case, including how the Council described the property in its appeal documents, but it seems to me that these cannot be conclusive on the question I have to decide. The Council were not conceding that the Property would be the planning unit in the case of a change of use of one of the rooms.

The Inspector’s decision can only properly be construed as rejecting the conditions as unnecessary because he considered that the deemed planning permission lawfully specified and limited the commercial uses of the Property. For the reasons I have explained, the limitation is of no legal effect, and therefore the decision betrays an error of law and must be quashed.