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Change of use and appropriate conditions

The High Court recently quashed an inspector’s decision allowing change of use without appropriate conditions. Horatio Waller explains why a city council’s appeal was successful.

Mr Justice Knowles last month handed down his judgment in Manchester City Council v SSHCLG  [2021] EWHC 858 (Admin). The case concerned the decision of an Inspector to allow a s174 appeal against an enforcement notice and to grant planning permission in respect of a change of use of a dwelling house to use as four commercial units.

The Inspector assessed the new use of the premises based upon the particular commercial activities that were being carried out in the four units at the time the enforcement notice was issued, namely two courier’s offices, a therapy/medical treatment room and a travel agency.

Manchester City Council proposed planning conditions to the Inspector, in the event he was minded to grant planning permission, to prevent the commercial activities within those units from changing in future. Its concern was that the use of each unit could change, without the need to apply for planning permission, to a different use that may have different and greater impacts on the local area than the existing commercial activities.

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This is because of the liberalising effects of the Town and Country Planning (Use Classes) Order 1987 (‘UCO’) and the Town and Country Planning (General Permitted Development) (England) Order 2015 (‘GPDO’). The effect of the conditions the Council proposed would have been to oust the UCO and GPDO, and thereby restrict each unit to the specified commercial activity.

The Inspector in his decision letter rejected the conditions as unnecessary because his decision letter and the planning permission granted specified the particular commercial activities.

The Council was successful in challenging that reasoning before the High Court. Mr Justice Knowles accepted the submission that conditions are necessary in circumstances like these where the intention is to limit premises to specified commercial activities.

The Secretary of State defended the decision of his inspector on the basis that the conditions were not needed in any event because the premises were one planning unit in a mixed use, and a mixed use planning unit cannot benefit from the UCO or GPDO.

It was common ground before the Judge that a mixed use planning unit cannot benefit from the UCO or GPDO (see Belmont Riding Centre Ltd v First Secretary of State [2004] 2 PLR 8). However, the Council successfully resisted this line of defence on the basis that it rested on a false premise. Each commercial unit within the premises was a separate planning unit that could, subject to planning conditions, take advantage of the UCO and GPDO.

The Judge found that the Inspector had not addressed the planning unit in his decision but had he done so the only rational conclusion open to him would have been to find that each commercial unit within the premises is a separate planning unit. On that basis, the defence was rejected, the claim was allowed and the decisions of the Inspector were quashed.

Horatio Waller is a barrister at Francis Taylor Building. He appeared for the successful appellant, Manchester City Council.

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