Planning permission: construction

Residential development - certificate of lawfulness - construction of planning permissions - whether permissions permitting proposed development - whether development restricted to one house per plot - claim dismissed

Stock and others v First Secretary of State and another: QBD (Administrative Court): Mr Justice Evans-Lombe: 28 May 2004

The second defendant council refused an application by the claimants for a certificate of lawfulness for the construction of a single detached dwelling on land that previously formed part of an estate.

On appeal to the secretary of state, the question arose as to whether the proposed development was permitted under either of two planning consents dating from 1949 and 1953 respectively.

The 1949 consent was a conditional permission for the development of 'domestic dwellings' on the estate, and referred to a layout 'shown on the accompanying plans'.

Those plans indicated the division of the land into plots, with the appeal site forming part of a single large plot.

The 1953 consent referred to a plan, submitted with the planning application, on which 'sites to be sold for future building or houses or cottages' were shown in blue and 'plots already sold as sites for houses or where houses have already been built' were marked in red.

The appeal site fell within the red land.

By the time of the claimants' application, two dwellings had already been constructed on the plot that incorporated the appeal site, pursuant to further planning permissions.

Dismissing the appeal, the inspector held that the 1949 consent permitted a single dwelling on each plot, and that, since two had already been built on the relevant plot, there was no justification for allowing a further dwelling.

He held that the areas coloured in red in the 1953 consent were outside the scope of that consent, which granted permission in principle only for development of the blue land.

The claimants challenged his decision under section 288 of the Town and Country Planning Act 1990.

Michael Druce (instructed by Brachers, Maidstone) for the claimants; Rebecca Haynes (instructed by the Treasury Solicitor) for the first defendant.

The second defendants did not appear and were not represented.

Held: The claim was dismissed.

The 1953 consent could not be construed as affecting the planning status of any part of the appeal site.

It was apparent that the applicant for permission on that occasion had not been seeking permission over the land coloured red.

The 1953 consent was given by reference to the application plan, which was seeking permission only over the land coloured blue on that plan.

The 1953 consent could not therefore be construed as granting permission over any land not coloured blue on the plan.

Although the inspector's 'one house per plot' view did not necessarily follow from an inspection of the plans, his conclusion was correct for different reasons.

The 1949 consent had given the then equivalent of outline consent for the construction of houses on the plot in question.

When granting the 1949 consent, the council had retained control over the density of housing to be permitted on the site.

The equivalent of detailed permission would still have had to be obtained, and it would have been within the council's power to restrict development to one house on the plot, although it would have had to give detailed consent for that one house.

The 1949 consent had, in the event, been implemented by the construction of two dwellings, thereby exhausting the 1949 consent.

Town and country planning: lawful development certificate

Planning permission - material change of use - intensification of existing use - Town and Country Planning (Use Classes) Order 1987 - whether increase in floorspace amounting to material change of use - whether inspector failing to take relevant matters into account - application dismissed

Eastleigh Borough Council v First Secretary of State and another: QBD (Administrative Court): Mr Justice Collins: 28 May 2004

The second defendant wished to increase the sales area in its supermarket.

It applied to the claimant, as the local planning authority, for a lawful development certificate (LDC) to increase the sales floorspace by the conversion of existing back-up space or the installation of a mezzanine.

Planning permission had been granted in 1972 for the erection of a shop with 50,000 sq ft of selling space on the site.

Since then, around 60 applications had been made on the site, and subsequent permissions had greatly expanded the overall floorspace.

The existing sales floor area was 83,300 sq ft.

None of the implemented or extant permissions imposed any control on the level of retail floorspace by express condition.

The claimant refused the application for an LDC because, among other things, the extension of the retail area would constitute a material change of use by reason of an intensification of the same use as previously existed.

This fell outside the provisions of section 55(2)(f) of the Town and Country Planning Act 1990 and article 3 of the Town and Country Planning (Use Classes) Order 1987 (UCO), which authorised other uses only if they came within the same class.

The first defendant allowed an appeal by the second defendant against that refusal.

Following an inquiry, the inspector did not find any condition imposing control on the level of floorspace, and, therefore, held that once the planning permissions had been implemented, the amount of floorspace to be used for sales purposes would not be restricted.

He also held that, as a matter of fact and degree, the proposal in question would not lead to a material change of use.

The claimant, applied under section 288 of the 1990 Act, to quash that decision, contending that the inspector had failed to take relevant matters into account and had not asked himself the appropriate questions.

Mary Macpherson (instructed by the solicitor to Eastleigh Borough Council) for the claimant; Jonathan Auburn (instructed by the Treasury Solicitor) for the first defendant; Vincent Fraser QC (instructed by Halliwell Landau, Manchester) for the second defendant.

Held: The application was dismissed.

For uses within the UCO, the doctrine of intensification of an existing use was qualified by the rule that, if the intensified use remained within the same class as the former use, development would not be deemed to have taken place.

It followed that, as long as the change did not take the use out of the relevant use class, it would be permitted by virtue of the UCO: Brooks & Burton Ltd v Secretary of State for the Environment [1977] 1 WLR 1294 applied.

The issue was whether the proposed development, resulting in an increase in floorspace, would amount to development requiring planning permission.

That was a matter of fact and degree for the inspector, depending on the circumstances of the case.

On the facts of this case, and having heard evidence from witnesses, the inspector had been entitled to reject the argument that the mezzanine would change the character of the store and to decide that no material change of use would arise.