This analysis was first published on Lexis®PSL on 30 April 2021.

Planning analysis: The High Court quashed a planning inspector’s decision to allow an enforcement notice appeal and to grant planning permission. The inspector had failed to give legal effect to his intention to restrict the uses of four units within the same building to those he had intended. This was because the limitation was expressed in the description of the permission rather than by condition in circumstances where the four units constituted separate planning units.

Manchester City Council v Secretary of State for Housing, Communities and Local Government [2021] EWHC 858 (Admin)

What are the practical implications of this case?

This case illustrates the principle from I’m Your Man Ltd v SSE (1998) 77 P & CR 251 (I’m Your Man), that a limitation on a planning permission must be expressed by way of condition, it is insufficient to state it in the description of development.

If seeking to impose a limitation, decision-makers should give careful consideration to the relevant planning unit and whether it is necessary to impose a condition or conditions preventing a change of use within a Use Class or under permitted development rights. Similarly, those considering a material change of use should bear the principle in mind when deciding whether an application for planning permission is necessary.

What was the background?

Manchester City Council (the council), made statutory appeals under sections 288 and 289 of the Town and Country Planning Act 1990 (TCPA 1990) against the decision of an inspector appointed by the defendant Secretary of State to quash an enforcement notice and to grant planning permission.

The enforcement notice had been issued by the council against the interested parties under TCPA 1990, s 172. It alleged that, without planning permission, there had been a material change of use of the relevant property (the property) from a dwelling house (Class C3) to form four commercial units operating as a travel agent (Class A1), two couriers’ offices (Class B1) and a therapy/medical room (Class D1). The requirements of the notice included that the use of the property as four commercial units should cease.

In determining the interested parties’ two appeals against the council’s decision to issue the enforcement notice under TCPA 1990, s 174 the inspector had allowed one of the appeals under ground (a) (TCPA 1990, s 174(2)(a)), and had consequently granted planning permission under TCPA 1990, s 177(5). He had rejected one of the grounds of the other appeal, but had decided that it was unnecessary to determine this appeal further.

By the final hearing in the High Court, the council’s challenge of the inspector’s decision was solely concerned with the inspector’s rejection of two conditions suggested by the council for use in the event that planning permission was granted. These specified and limited the commercial uses of each of the four units. The inspector, in his decision, said that the suggested conditions were unnecessary as the planning permission specified these uses.

The council argued that, while it was clear from the inspector’s decision that he had intended to limit the uses of the four units to those business uses specified in the enforcement notice (ie a travel agent, couriers companies, and a treatment room), his decision had failed to achieve this effect. This meant, the council argued, that each of the units could be used for any purpose within the same Use Class or change to a different Use Class if permitted under the Town and Country Planning (General Permitted Development) (England) Order 2015/596. The Secretary of State argued that this was wrong as the property constituted one planning unit which was in a mixed use and that therefore a change of use of any of the units would require planning permission.

What did the court decide?

Knowles J detected that a key issue in the case was whether the property comprised four separate planning units, each with a different use, or whether it comprised a single planning unit in a mixed use. In discussing the relevant law, he further noted the effect of the principle in I’m Your Man that a limitation in a planning permission must be expressed by condition and that it was insufficient for it to be stated in the description.

The judge considered the criteria for determining the appropriate planning unit in Burdle v SSE [1972] 1 WLR 1207 and decided that the property comprised four separate units. In reaching this decision, he took into account factors which included that the units were in separate commercial occupation and that they were subject to separate leases.

As a result of the judge’s decision that the property comprised four separate units, and of the principle in the I’m Your Man case, he concluded that the inspector had failed to give legal effect to his intention to restrict the uses of the four units to those specified in the grant of planning permission and that this amounted to an error of law. Consequently, he quashed the inspector’s decision.

Case details

  • Court: Queen’s Bench Division, Planning Court, High Court of Justice
  • Judge: Mr Justice Julian Knowles
  • Date of judgment: 23 April 2021