High Court judge gives permission to bring legal challenge against Welsh council over Article 4 direction on holiday homes

A local objector to Gwynedd Council’s policy on planning for holiday homes has won the right to take the authority to judicial review after a judge said he was “just persuaded” this was the right course.

The case arose in the High Court before Mr Justice Pepperall when Enlli Williams challenged Gwynedd’s July 2024 decision to confirm an Article 4 direction under the Town & Country Planning (General Permitted Development) Order 1995.

Pepperall J said in his judgment that the use classes order distinguishes between primary residences (C3), second homes (C5); and short-term holiday lets (C6) and in Wales allowed as generally permitted development a change of use between classes C3, C5, C6 and mixed use combining either C3 or C5 with C6.

Councils can if they think it necessary issue an Article 4 direction which reinstates the need for planning permission rather than allowing a project to proceed as permitted development.

Gwynedd sought to use this to allow as generally permitted development only material changes of use that led to the greater use of a house as a primary residence.

Ms Williams argued Gwynedd misunderstood the changes to the planning regime in 2022, failed to take into account the potential for new holiday homes, and failed to appreciate that planning permission is only required for material changes of use and that, therefore, the direction would not have the effect of preventing all changes of use to classes C5 and C6.

Gwynedd said it was concerned about the proportion of the housing stock not used as a main residence and concluded it was expedient to make the direction to make more housing available for local needs.

Pepperall J said it was properly arguable that a change of use from residential to commercial letting as holiday accommodation would not automatically amount to a material change of use such that planning permission would always be required.

He said: “Thus, the 2022 reforms might not completely control changes of use from C3 or C5 to C6 or to a mixed use.

“Since materiality is a matter of fact and degree, it may well be that many mixed-use cases will not be affected by the direction. Equally, in my judgment, it is impossible to say that a change of use from C3 to C5 will necessarily amount to a material change of use. Indeed, some such changes of use might involve no more than a very modest change in the number of days that the house is occupied as a home.”

Members of a specialist planning committee might appreciate that only material changes of use between different classes required planning permission, but “it is at least arguable that the same is not true of the broader cabinet”.

The judge said: “The Officer's Report to the cabinet expressly referred to changes to ‘generally permitted development’ and to the control of ‘development proposals’.

“Properly understood by a well-informed readership, those were references to development that might – unless generally permitted – require planning permission. “Nevertheless, it is properly arguable that the cabinet was misled as to the law and therefore as to the efficacy of the direction.”

He said a full hearing in court might find it highly likely that any such error would have made no substantial difference.

“Given, however, that the arguable error in this case went to the very heart of the efficacy of the policy, I am just persuaded that I cannot reach such conclusion to the required standard at this permission stage,” he said.

"I therefore grant permission to apply for judicial review and leave further consideration of s.31 of the Senior Courts Act 1981 to the full hearing.”

Pepperall J dismissed Ms Williams’ other grounds as either unarguable or without merit.

Mark Smulian