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Change of use

Intensification of use

Breaches of planning control

Hertfordshire County Council v Secretary of State for Communities and Local Government
[2012] EWCA 1473

Summary

Intensification of use is capable of constituting a material change of use. However, that was not the case here. The correct test was to decide whether the increase in the scale of the use had reached the point where it would result in a change in the definable character of the use. If so, that change amounted to a material change of use.

Facts

This was an appeal by the Council against a decision upholding a decision by the Secretary of State, through his inspector, that there had been no breach of planning control.

Enforcement notices in relation to alleged breaches of planning control had been issued by the Council. These related to the doubling of the throughput of a scrap metal yard, which the Council contended was a material change of use; and the erection of associated buildings, which the Council contended were built without planning permission.

The owner of the relevant land appealed on ground (c) of section 174(2) of the Town and Country Planning Act 1990, and argued that “the material change of use alleged by the corrected Notice has not taken place”, and thus there was no breach of planning control.

The council’s argument was fourfold:
  • Intensification of use can be a material change of use;
  • A material change of use can be established by reference to the effect on neighbouring properties;
  • In considering whether something is a material change of use, the actual use must be assessed, as opposed to what could have been carried out under the extant planning permission; and
  • In assessing the effect of operations on site on neighbouring land, it is immaterial whether the impact resulted from decisions of the operator or as a result of the action of third parties, such as government requirements.
Decision

The Court of Appeal dismissed the appeal. The Court held that while intensification of use was capable of constituting a material change of use, the Inspector had applied the correct test of deciding whether the increase in the scale of the use had reached the point where it would give rise to such materially different planning circumstances; that, as a matter of fact and degree, it resulted in a change in the definable character of the use, and that change amounted to a material change of use.

The Court also held that a change of character in the use should be assessed by considering what was happening on the land, and the impact off the land when deciding whether the character of the use had changed. However, if the Council wished to rely on those matters, they needed to have been identified in the Enforcement Notices.


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