Monday, 8 February 2016
Limiting the scope of a planning permission
At times when I am busy it has occasionally been difficult to write up posts for this blog, and there were times last year when I was very busy indeed. One case which deserved attention was the decision of the Court of Appeal in Wall and others v. Winchester City Council  EWCA Civ 563 [which seems sometimes to be referred to by its name at first instance - as Winchester City Council v SSCLG], in which judgment was given on 17 March 2015.
I don’t propose to rehearse the facts of the case. Its significance lies in its discussion of the limitation of the scope of a planning permission by description. In other words, in the absence of a condition attached to the permission, to what extent does the description in the operative words of the permission have the legal effect of limiting the scope of the permission?
The previous judicial authorities on this issue are well known. They include Wilson v. West Sussex CC  2 Q.B. 764 – “an agricultural cottage” and East Suffolk CC v. SSE (1972) 70 L.G.R. 803 - “a detached bungalow or house for occupation by an agricultural worker”) which established that the initial use of a development is limited by the description of that development in the operative words of the planning permission that authorises it, but it was clear from those cases that such a description could not prevent the subsequent use of the property for some other purpose within the same Use Class (by virtue of what is now section 55(2)(f) in the 1990 Act). It was subsequently confirmed that in the absence of an express condition attached to the permission, this does not prevent a different use being implemented at a later date, provided it does not amount to a material change of use constituting development. (See I’m Your Man Ltd v. SSE  P.L.C.R. 107, also Uttlesford DC -v- SSE (1989) JPL 685).
The Winchester case related to a travelling show people’s site, and the crucial point is that this is a sui generis use, whereas the use of a single private dwellinghouse (for example) for holiday lets still falls within Use Class C3 in most cases (although there can be exceptions, as previously discussed in this blog – such as Moore v. SSCLG  EWCA Civ 1202). As I have just mentioned, in the absence of a condition preventing this, section 55(2)(f) would normally apply to such a use. The Winchester case is very clearly distinguishable from this situation, because the planning permission authorising the change of use of the site to use as a travelling show people’s site did not merely contain a limitation, but it prescribed the scope of the sui generis use that was authorised. It did not authorise a general caravan site use.
In the judgment, reference is made to the well known case of Wilson (cited above). This established that the description of the development [erection of “an agricultural worker’s dwelling” in that case] limited the purpose to which the planning unit could be put, at least in the first instance. In that case, the court left open the question as to whether a subsequent change in the manner in which the dwelling was used would be a material change of use. In later cases (also cited above) it was established that a limitation by description of the kind in the Wilson case was insufficient, in the absence of an appropriate condition, to prevent the operation of section 55(2)(f). The essential point is that where (as in the Winchester case) the limitation in the description of the authorised development is describing a sui generis use, then a change of use to a wider caravan site use could, as a matter of fact and degree, be a material change of use, as the High Court and CA found it was in the Winchester case (over-ruling the inspector). The other cases cited in Jeremy Sullivan’s judgment all involved sui generis uses.
Nothing in the Court of Appeal’s judgment disturbs the principles applying to dwellings and holiday lets (and/or any other change of use within one and the same use class). In these cases, the rule in I’m Your Man is still fully effective – i.e. if there is no condition, then there is no restriction on any other use within the same use class.
Because Winchester was a case in which the change of use authorised by the planning permission related to a sui generis use, the well known rule in Wilson applied not only to the initial use but to the use of the site without limit as to time and without limit as to the scope of the use. The planning permission authorised only a travelling show people’s site and nothing else.
The position would have been different if the authorised use had in fact fallen into one of the Use Classes identified in the Schedule to the Use Classes Order. If, for example, the planning permission had authorised a specific and limited category of residential use of a building, which would fall wholly within Use Class C3 (dwellinghouses), then whilst the initial use of the building could only have been for the limited category of use specified by the permission, the description of the authorised development would not (absent a relevant condition) have prevented the subsequent use of the building for any other purpose also falling with in Use Class C3.
A residential caravan site does not, of course, come within Use Class C3 (or any other use class) and so a condition was not required in the Winchester case to limit the future use of the site, because the description of the specified sui generis use in the planning permission was sufficient to limit the use of the site to that use and no other. The attempt by the occupiers of the site to call in aid I’m Your Man Limited in this context would appear to have been wholly misconceived.
© MARTIN H GOODALL