Material change of use Q & A DCP Section 4.32

The so called "second leg" of the definition of what activities require planning permission, as set out at sec.55 of the 1990 Act, states that "the making of any material change in the use of any buildings or other land" is development. However, due to the huge variety and subtlety of uses that may be made of land and buildings, this concept has created far more difficulty in interpretation than its operational development counterpart, already described at (4.31).

Q & A    4.32/10

I note that my local authority has advertised a planning application for conversion of two flats back to the original use of one house. Is planning permission actually required for this?

Yes it is, if the judgement in The London Borough of Richmond-upon-Thames v SSETR [2000] is followed. Prior to this case the prevailing wisdom was that "de-conversion" did not constitute a material change of use, and to my mind that was correct. However, the deputy judge in this case felt that part of the assessment of materiality was effect on planning policy, which here was against the loss of small residential units. It is a pity that this controversial judgement did not go on to the Court of Appeal.

I have been bothered by two apparently conflicting definitions on "abandonment". Definition 1 holds that an established use right cannot be abandoned by mere non-use. For such a use right to be abandoned there must be some intention to abandon.  Definition 2 holds that where a use ceases and the land/buildings remain unused for a considerable amount of time, it may be taken that the former use has been abandoned. Both cannot be right?

As with most court led concepts related to planning law "abandonment" continues to create confusion. The most recent judgment on the matter came from the Court of Appeal in Hughes v Secretary of State for the Environment [2000]. Here the test of intention was rejected in favour of an objective assessment related to the physical condition of the building. The appeal judges noted that in this case there had been prolonged and gross neglect which was not overcome by the appellant's stated intention to resume residential use.

In spite of this clarification, any judgment on this matter remains a matter of fact and degree and cases have shown that the time which has to elapse after cessation of use for "abandonment" to have occurred is extremely variable and to a large extent relies on the level of physical deterioration. The maximum period of non-use held not to constitute abandonment, that I am aware of, is over 40 years!

My client has received planning permission for an extension to her dwelling and she now wishes to occupy the whole with her son and daughter-in-law. She is willing to accept a condition preventing the formation of two separate dwellings but the local planning authority are of the view that the provision of an additional kitchen on the first floor for use by the younger generation would cross the line between a granny annex and a material change of use. Can you advise?

Presumably there is some planning policy objection to the creation of an extra unit of accommodation in this house. The legal issue is whether or not two separate living units are being created from one in the terms set out at section 55(3)(a) of the Town and Country Planning Act 1990. The point at which accommodation becomes so self-contained as to be a "separate dwellinghouse" is a matter of fact and degree, and cases show that a number of considerations need to be taken into account. In your clients case I assume that there would be no complete physical separation of this accommodation and that some services would be shared. In these circumstances I would not have thought the fact that there will be two kitchens is enough to assert that a separate dwellinghouse has been created. A good reference is the Southend-on Sea decision quoted at (11.11).

I am advising clients who operate a business supplying live and dead rodents to zoos and birds of prey centres. The breeding enterprise is located in former agricultural buildings and I am arguing that there has been no material change of use. Do I have a case?

The definition of agriculture in the Town and Country Planning Act 1990 includes "the keeping and breeding of livestock, including any creature kept for the production of food…."  As the rodents in this case are indeed creatures being kept for "food", and the human food chain is not referred to, there are grounds upon which to argue that your client's use is "agriculture". As a parallel, it has long been accepted that the growing of fodder crops intended for other animals, including hay for horses, is an agricultural activity.  However, even if it is judged that your clients use does not fall comfortably within the statutory definition of agriculture, the normal test for material change of use still applies. However, I do not know of a decision which matches your particular case, and wonder if any readers have experience of this issue?

Response

A 1998 enforcement planning appeal decision from Powys wherein an inspector felt that the keeping and breeding of rats for feeding to snakes and reptiles did not form part of the human food chain, either directly or indirectly, and that therefore the use of the site was not for the purposes of agriculture.  SJ also provides a press cutting which indicates that as the result of this decision the rat farmer released hundreds of his animals into the wild only to be convicted by magistrates as the result of RSPCA action alleging unnecessary suffering!

My authority is considering taking enforcement action against excessive dog keeping at a house, and wishes to formulate the requirements of the notice to allow some dogs to be kept which would be incidental to the enjoyment of the dwellinghouse. I have read somewhere that the courts have determined that the exact number of "ancillary" dogs need to be specified in any notice. Do you have knowledge of this case?

I think that you must be referring to Stratford-on-Avon District Council v Hitchman [2001] which was reported in Planning 1 June 2001 p18 and commented upon at p19. In this case the local authority had not specified the number of dogs that could be kept, but it had later sought an injunction requiring that the tally be reduced from nine to six. It was held that the lack of a precise requirement had created doubt as to what had to be done to comply with the notice and the council's request for an injunction was denied. The court, however, required the defendant to give a formal undertaking to allow the numbers of dogs to decrease to six through natural wastage. It follows from the Stratford judgement that if your council is intending to serve a notice it would be as well to specify a reduced level of dogs that it considers to be ancillary to the particular premises. However for the reasons given in the editorial comment already referred to it should avoid reliance on the "six dog rule", which some have adopted slavishly following Wallington v Secretary of State for Wales [1989].

I have heard that as the result of a court decision the "de-conversion" of houses in flats back to their original usage as single dwellinghouses is now accepted as a material change of use.  Such a judgment seems to me to be open to question and I wonder if it has been challenged subsequently?

The case you refer to was London Borough of Richmond-upon-Thames v Secretary of State for the Environment, Transport and the Regions and Richmond upon Thames Churches Housing Trust [2000]. Here the case referred to a house divided into seven flats which was proposed to revert back to a single house, and the judge reasoned that a material change of use had occurred. He averred that an important factor in this ruling was that the change was contrary to planning policy relating to the protection of smaller units of accommodation.

I agree with you that this was a very controversial judgement but it was not challenged in the Court of Appeal due to the fact that the property was sold. Subsequently there have been no further developments, either in the courts or at appeal.

I belong to a tennis club which is owned by a county council and is situated within the grounds of the council offices. The club comprises part of the council’s sports and social facilities and comprises four hard surfaced tennis courts. The council has decided to use two of the courts to provide overflow parking for its staff, although the courts will still be available after 5.30 pm. Double gates have already been formed in the existing mesh and a tarmac road laid to this.  My question is two-fold (i) is planning permission required for a change of use to mixed use of the tennis courts and parking: (ii) was permission required for the laying of the access road?

The answer to the first part of your question depends on whether the whole of the council offices, including the courts, may be regarded as one planning unit. If so, then a use of an area for sports facilities for staff would be ancillary to a primary use as council offices. It is then open for another ancillary activity, in this case parking, to replace the tennis courts without a material change of use occurring. I rather suspect that this is the scenario in the case you describe, although it is always possible that the tennis use may be considered a separate planning unit. In this instance the mixed use of the land for council parking and a tennis club activity could possibly be considered to constitute a material change from that existing. As to the roadway, this would normally require planning permission but may well be permitted development under Part 12 of the GPDO.

A single large family house was converted to four self-contained flats 13 years ago without any planning application being made. Is a planning application now required to revert to a single family house?

The conversion would have achieved immunity from enforcement some time ago using the four year rule. Use as four flats is now tantamount to the lawful use of the premises, and any enforcement action would not be successful. Therefore there is no automatic legal right of reversion to the previous lawful use as a single dwellinghouse, and it needs to be asked whether this change constitutes a material change requiring a fresh permission. Prior to 2000 it was the prevailing wisdom that the de-conversion of residential property did not normally constitute a material change of use, but the court judgement Richmond-upon-Thames London Borough v Secretary of State for the Environment, Transport and the Regions [2000] turned this on its head. Here the de-conversion of a house had been the subject of an appeal decision where an inspector had ruled that there was no material change of use. On challenge of this decision it was held that in coming to a conclusion on the materiality of a change of use one had not only to assess the change in character from existing to proposed, but also any effect of the change on planning considerations. In this case the de-conversion of the property was contrary to local plan policies designed to protect the stock of small dwellings in the area. The current position is therefore that the change you propose may well not require permission, but much would depend on the planning policy situation in the particular location.

I am acting for the owner of a large house, in the grounds of which is a lodge occupied until recently by a handyman/gardener. It is wished to sell off the lodge on the open market but the local planning authority is insisting that planning permission is required. Can it be right in this assertion?

I assume that that there is no planning condition affecting the occupation of the lodge. In that case, and if the lodge already forms a self contained unit of living accommodation, one may use sec 55(2)(f) of the 1990 Act to argue that subdivision of a planning unit is not development. There is no material change of use and both parts of the land would remain within the same Use Class (C3). The situation would be different if the mode of occupation of the lodge did not make it functionally independent of the main house, as the act of severance would create a new separate single dwelling. In this respect the court case Whitehead v SOS & Mole Valley DC [1991] is of note. Here it was determined that semi-independent housekeeper’s accommodation located in large grounds could be an ancillary to the main house.

A property has planning permission to operate as a "private members club" incorporating a restaurant at ground floor and a music and dance venue in the basement. A licensing application has been submitted for the premises to be open to all members of the public. No personal conditions or conditions limiting the number of people on the premises were attached to the decision. The site lies in a sensitive area with surrounding housing. Although this change would not require planning permission based on the Use Classes Order could it be considered a material change of use?

The first question to be asked is whether there is likely to be any material change of use of these premises, and only if the answer is yes, need it be considered whether the Use Classes Order allows the change nevertheless. It is difficult to see how there could be a material change of use  in the circumstances you describe where the component elements and the planning unit remain the same, the only difference being the type of users. However, if the Use Classes Order is brought into play it is of note that at appeal a private members social club has been considered to be sui generic.

Clients of mine occupy a rural cottage located on a quarter of an acre site. They have purchased adjoining land comprising the corner of a pasture field and part of an adjoining steep embankment which had been used by the cottage with the consent of the owners for fuel storage and log splitting. This latter use has been carried on for more than ten years. Some of the intervening fence and hedge has been removed and a stock proof fence erected to the remainder of the pasture field. It is not intended to use the land acquired as a garden. Is planning permission required?

The question to be asked is whether there has been a material change of use of the acquired land from agriculture to use as part of a residential curtilage. In most cases of this type the answer is "yes". The land is now in the same ownership as the cottage, it has been fenced off from the farm from which it was severed and access between the existing garden and the new land has been created. In these circumstances it would be relatively easy for a local authority to assert that a new planning unit has been created, although as you say there are circumstances here which differ from normal "curtilage extension" cases. Without knowing all the facts of the case, and acknowledging that all judgments of this type are a matter of fact and degree, I doubt that there is a sustainable argument that planning permission is not required. It may be that there is a separate case to be debated in respect of the embankment only and I would advise application for an LDC.

Two holiday caravans have been sited for more than 30 years in a fenced off area of a paddock. A separate planning unit is easily identifiable, and were an LDC application to be made it would certainly be granted. Although such a certificate would be specific to the lawful siting of the two caravans would planning permission then be required for a third unit given that "pure" intensification of a use is now not normally regarded as a material change of use?

If an LDC is issued in the situation you cite it will aver that the use of the land for the stationing of two holiday caravans is lawful at the time of the application. If a third ‘van is later added without permission it will then be for your authority to consider whether there has been a material change of use of the land, and if so whether to take enforcement action.

In this particular case there will be no change in the planning unit and the use of the land remains unaltered. But it is still possible that a material change of use through intensification may occur as use of land as a caravan site does not fall within any Use Class. Any determination on this point is a matter of fact and degree but a recent enforcement case reported in Planning 22 November 2002 p26 is of interest. Here an inspector felt that an extra caravan at a site where there was an LDC for one unit did not constitute a material change of use. It was reasoned that the character of the site would not be substantially changed as it would remain largely vegetated. Although there would be an increase in activity it would not be different from that already taking place, and  there would be no intensification materially altering the character of the land. The enforcement notice was quashed.

My authority is confused as to whether a material change of use occurs when stables are erected on agricultural land for personal use only. We know that permission is required for the stables, but not whether a change of use has occurred as well. The Land-Use Gazetteer states that paddocks are sui generis, therefore any development requires planning permission. But would the erection of stables for domestic purposes and the keeping of horses also require a change of use permission?

This is an area of planning law and practice that has caused great difficulty for practitioners. Annex F to PPG7 contains only very limited guidance of relevance and it has fallen to the courts and the Inspectorate to clarify matters. The grazing of agricultural land by horses does not amount to a material change of use requiring permission. However, this will occur where land is used for the keeping of non-agricultural horses, unless within a residential curtilage and incidental to the enjoyment of the dwellinghouse. In that event, the permitted development rights of Class E, Part 1, Schedule 2 of the GPDO 1995 may apply.

In Sykes v SOS 1981 the court held that the distinction between keeping and grazing depends on whether horses are fed mainly by means other than mere grazing. Whether the keeping of horses will result in a recreational use, a mixed agricultural/recreational use or one that is sui generis, is less clear and a matter for debate. Further guidance on horse uses can be found at 23.2 of Development Control Practice.

My client makes wooden pallets on a site that has permission for a mixed B2/B8 use. He also manufactures wood chip from recycled processed wood, as opposed to from "organic wood" from trees. The council maintains that there has been a material change of use to a "mixed-use of industrial/storage purposes and importation of wooden household waste and recycling of the same". However, I consider the manufacture of wood chip is a general industrial process falling within Class B2 and it is irrelevant whether the raw material is organic wood or processed waste wood. Do you agree?

I assume that the reasons for the authority’s stance turn on what it perceives are materially different planning effects that have the potential to cause problems, such as from dust or other disturbance, or from the storage of the raw material itself. On the face of it, I am inclined to agree that the manufacture of wood chip is a general industrial process, irrespective of the precise nature of the raw material. However, the planning authority clearly believes this to involve the processing of waste matter. In an enforcement notice appeal case from Surrey concerning the deposit of waste at a timber yard, an inspector considered the meaning of the term "waste". He noted that the Environmental Protection Act 1990 stated that waste included "any substance which constitutes a scrap metal ... or other unwanted surplus substance arising from the application of any process" and "any substance or article which requires to be disposed of as being broken, worn out, contaminated or otherwise spoiled". Thus, in his view, the fact that a recipient had a use for the material did not prevent it constituting "waste". He also noted the judgement in Kent CC. v Queensborough Rolling Mill Co. Ltd, where it was held that the purpose to which the material was put was irrelevant including its usefulness on site. On that basis, it appears arguable whether the authority may in fact be correct. Whether the processing of waste can be considered a B2 use was discussed previously in connection with composting (Planning 6 September 2002 p19).

A suburban garden has been severed from its house by fencing and may soon be in separate ownership. Permission for a house in the severed section, which has frontage but no right of access onto a private road in a third ownership, has been refused. Would the subdivision constitute development, given that there appears to be a change of use from residential to no use and, if so, what enforcement action might be taken?

I can find no legal precedent for this interesting proposition. However, the mere act of fencing off or disposing of a section of garden would not in my opinion result in a nil use as the current use as garden land would need to be abandoned. This would only occur where there had been a deliberate intention to cease the use by allowing the land to remain vacant for a considerable period. Moreover, for there to be planning control there must be a material change of use and I cannot see how a change from residential curtilage to land awaiting possible residential development could be considered material.

Permission was granted for a storage use on land and within buildings on a site and an associated licence for a goods vehicle operating centre has been issued. However the planning authority contends that a further application is required to regularise the latter use even though vehicles are parked within the red line site. As the vehicles are wholly ancillary to the main storage use I argue that permission is not required. Who is correct?

The concern here perhaps is that a haulage use has been instituted, as this would not fall within B8 but be sui generis. The issue is therefore whether the primary use is as a base for the storage or distribution of goods kept at the premises, or whether it is used as a depot for vehicles engaged in the transmission of goods to and from other premises. An "operating centre" is defined under the Goods Vehicles (Licensing of Operators) Act 1995 as meaning "the base or centre at which the vehicle is normally kept, and references to an operating centre of the holder of an operator's licence are references to any place which is an operating centre for vehicles used under that licence". But as the parking and use of goods vehicles is part and parcel of most storage uses, in the majority of cases an "operating centre" is unlikely to be more than an ancillary use that does not require a separate grant of permission.

In 1983 permission was granted for change of use from a church hall (class D1) to a karate club (class D2). This was implemented thus permitting any D2 use. The building had been derelict for 10 years until six months ago, when a variety of new uses started. The planning authority says that the building has both a D1 and D2 use right. Given the 10 year break, has the D2 use been abandoned?  In addition, the authority appears to be allowing D1 uses because it maintains it was the 'normal' use of the original building. However I assert that this was as a karate club because it operated for a number of years under a permanent permission.  Do you agree?

The fact that the building remained unused for some 10 years following the implementation of the karate club permission does not in itself demonstrate that the D2 use has been abandoned, as this depends on a number of factors including the intentions of the owner and whether it has now been supplanted by a materially different use. There have been many cases where inspectors have held that abandonment has not occurred, despite the cessation of a use for over ten years. Moreover, unless specifically required by condition, reversion to the former "normal" use of the building as a church hall would not happen where a subsequent permanent permission for another use has been granted and this has been implemented. Thus the previous D1 use right has been abandoned and the D2 use arguably remains the lawful use.

My authority in Wales has recently received a number of queries on whether permission is required to operate as a childminder from home. There is a difference of opinion in the office over the number of children allowed, if any, before a material change of use has occurred. Can you please clarify?

Paragraph 32 of PPG4, originally applicable to both England and the Principality but superseded in respect of Wales by Planning Policy Wales, specifically notes that the use by a householder of a room for childminding complying with the Department of Health's standard recommended ratios may be an ancillary activity that would not normally require permission. The guidance also explains that a material change of use may be indicated where a non-residential use generates visitors, traffic, noise or fumes over and above what might be expected if the property were used solely as a single dwelling. Appeal cases show that the minding of 6 children has been accepted in some circumstances but not in others. There is thus no hard and fast figure or rule of thumb and an assessment of whether a material change of use has occurred is always a matter of fact and degree.

Response

My authority has developed a questionnaire to help consider this matter. This seeks information on a wide range of issues including the number of children and their ages, the hours and days of the proposed use, and the number and type of rooms in the dwelling and whether any would be set aside solely for childminding. In addition, details of childminding staff, parking and traffic movements and of any other non-residential use at the property are sought. Together with the size of the house, its garden and parking facilities such factors are all relevant in determining whether permission will be required. To give two extreme examples:

•    if someone has a one bedroom house, with no outside space or off-street parking, and they already work from home as a taxi operator, they would be very close to a material change of use already. Minding just one child could take the house’s total non-domestic use over the "limit". So in that case, minding one child would need permission.

•    If someone else has a ten bedroom house, set in 20 acres, with no near neighbours and no other non-domestic use, then minding six children might not be a "material change of use", in that case.

As a very rough rule-of-thumb, when dealing with ordinary 2 or 3 bedroom houses, my authority tends to adopt an approach of "fewer than 3 children may not need permission, but more than 5 probably will".

A client has recently enclosed a grass bank at the side of his house by a 2m high fence. Except for a narrow strip, the embankment, which slopes down to an adjacent road, is owned by my client. The council took enforcement action against the fence, claiming the land as its own. Although my client was able to prove his ownership of the land, the council requested a retrospective application for the fence and change of use from amenity land to residential land and this was refused. My client is now proposing to erect a 1m high fence as permitted development. Is it still necessary to apply for permission for the change of use of the land?

This type of situation is not uncommon. The enclosure of the land, which presumably once formed part of the surrounding landscaping scheme or incidental open space, is likely to have resulted in a material change of use requiring permission, unless it has already been used as additional garden land for at least 10 years and thereby become lawful.

Response

Surely, the most practical thing is first to look at the approved plan for the housing estate to see for what particular use the land next to the house was shown? It might even be a simple question of checking where the red line for the application site was drawn. Without establishing what was approved, I do not see how the matter can be resolved. Only after the use has been checked should the 10-year rule be considered and, only after that, the need for any application.

I do not think that this is likely to be of any assistance, except to reveal any conditions that might be relevant. Fencing off or enclosing land can never constitute a change of use in itself, although it may indicate that a change of use has taken place or is about to take place.  What is critical is whether there is, as a matter of fact and degree, a material change of use of the land in question. Merely incorporating it within the same boundary as the house does not necessarily make it part of the domestic curtilage, as confirmed by various judicial authorities. The case would turn on factual evidence, such as incidents of domestic use, cultivation as garden land and so forth.  In the instance quoted by KN, it would also be necessary to establish what essential change in the character of the use had occurred as compared with its previous use as "amenity land". The 10-year rule would run from the date when a material change of use could be identified, which may be some time after the land was fenced off.

My client's farm comprises three operations, the largest of which is the hatching and rearing of pheasants. Although the laying birds are kept all year round, the progeny is sold for recreational shooting. Some of these birds are eaten. When not used for pheasant rearing, buildings are used for turkey fattening for five months of the year. My client also keeps a beef suckler herd. The planning authority disputes that the pheasant breeding is an agricultural operation. However, given that the definition at Sec. 336 of the Town and Country Planning 1990 Act uses the word "includes" before the activities deemed to involve agriculture, it is apparently not exhaustive. While the breeding of game birds for recreational shooting purposes has been held not to be agriculture, surely a distinction can be drawn between rearing birds on an estate where the primary purpose is shooting them "on the premises" for sport and rearing them on a game farm for sale as living birds. Does the latter not amount to "the breeding and keeping of livestock" and therefore agriculture?

Although "livestock" is not defined as such in the Act, the definition of agriculture makes clear that it includes "any creature kept for the production of food, wool, skins or fur or for the purpose of its use in the farming of land". In a call-in decision from Powys in 2000 (DCS No: 51966467), it was held that pheasant rearing was not agriculture because the birds were raised mainly for sporting purposes and could not be considered to be livestock. This followed a similar conclusion in a case from Carmarthen in 1991 (DCS No: 33064578) and the House of Lords ruling in Earl of Normanton v Giles [1980], where it was held that the keeping of birds such as pheasants for sport was not agriculture for the purposes of the Rent (Agriculture) Act 1976. This judgment was accepted in an appeal from the West Midlands in 1995 (DCS No: 42139328). Similarly, the breeding and keeping of horses, other than for working on the land, and fish for angling purposes has been held to fall outside the scope of agriculture. However, in a decision from Wiltshire in 2001 (DCS No: 37816226), an inspector opined that since agriculture is defined as including the breeding and keeping of livestock without reference to how they are killed or the purpose for which they are bred, and as pheasants can be reared for slaughter as well as for sport and eventually be eaten, the matter is arguable. In the circumstances you describe, if the combined turkey and beef fattening operations represent the primary use of the holding for agriculture, pheasant rearing may be ancillary in any event. Otherwise I think the distinction you draw is irrelevant. It does not matter whether the birds are reared to be shot elsewhere for sport but whether the primary purpose is that they are bred to be eaten. Bearing in mind the general approach to this issue, the planning authority may be right in this case.

Following the partial demolition of a dividing wall, the garden of a guest house is being used by an adjacent pub in the same ownership as a beer garden for patrons of both premises. In an attempt to bypass licensing laws, the owner only allows off-sales to be consumed in the garden. I think a material change of use has occurred and that planning permission is required. The owner maintains that the use takes place only occasionally, such as during periods of good weather. Is the current use de minimis or has a breach of control occurred?

Circular 03/05 explains that the courts have held that the first thing to consider in determining whether a material change of use has occurred, or will occur, is the existing primary use of the land. Each case must always be determined by fact and degree. Assuming that the properties were originally separate planning units, if the primary purpose of the garden is to serve the residents of the guest house, its occasional use by pub patrons will not amount to a material change of use. If it becomes clear that it is never or rarely used for such purposes by residents of the guest house, but is mainly used regularly by customers of the pub, a mixed use will have arisen. From what you say, it seems unlikely to me that this point has yet been reached.

My clients wish to modernise some flats and convert them back into single-family dwellings. While one planning authority indicates that permission is not required, another says the opposite. It has refused to issue a lawful development certificate (LDC) confirming that an apartment building can revert to its original layout. Since a change of use is not involved and only internal works are proposed, I cannot see the need for permission. Can you help?

In London Borough of Richmond-upon-Thames v Secretary of State for the Environment, Transport and the Regions [2001], it was held that if a proposal gives rise to planning considerations, such as the loss of a particular type of small dwelling, that factor is relevant and should be taken into account when determining whether a change of use is material. The case concerned an inspector’s decision to issue an LDC for the use of a property as a single-family dwellinghouse that had formerly been divided into seven separate flats. The inspector had reasoned that no permission was required by virtue of Sec. 55(2)(f) of the 1990 Act, which provides that a use for any purpose in the same use Class does not amount to development. However, the court ruled that this did not apply because the previous use as flats did not fall in Class C3(a) of the Use Classes Order, which refers to use as "a dwellinghouse" in the singular. Depending on any development plan policy that seeks to retain small dwellings and on their availability, permission may thus be required.

Response

The judgment in London Borough of Richmond-upon-Thames v Secretary of State for the Environment, Transport and the Regions [2001] referred to in the reply by PM suggests that flats cannot fall within Class C3 of the Use Classes Order (UCO) 1987, so they must be sui generis. Alternatively, classification may depend on whether the planning authority area within which they fall has a relevant development plan policy and a shortage of smaller dwellings. Surely this was not the intention of those who drafted the UCO? Moreover, now that there is growing evidence of a glut of flats in London, could this change the court's ruling?

This controversial judgment, which as you say suggests that a building divided into flats falls outside the scope of the Order, might well have been overturned had it been challenged. Circular 03/2005, which explains the amended UCO, indicates that the definition of the term "dwellinghouse" is not limited, as it is in the General Permitted Development Order 1995, so as to exclude flats. Neither are flats included on the list of uses that the Order states are sui generis. But while any over-provision in apartment numbers cannot alter the court's ruling, this would be a pivotal factor when considering whether the change of use is material.

My authority granted permission in 2002 for a Class B1 office development with an adjoining storage and display area. Permission to extend this area was granted in 2003. The site is now used by a utilities company that occupies the office and stores trucks and construction materials in the adjoining yard. The firm's agent believes that the use of the yard is ancillary to the B1 use, so no separate change of use permission to operate the site as a contractor's yard is required. The council disagrees. Who is right?

It is difficult to comment without seeing the permissions and related site plans. However, the courts have held that the first matter to consider in determining whether a material change of use has occurred is the existing primary use of the land. The first permission appears to have authorised the primary use of the site for B1 purposes with ancillary storage. But it is unclear whether the effect of allowing the yard to be extended has been to authorise a storage use that could no longer be considered ancillary. This is a matter that should have been clarified by condition. If the primary use of the land by the company continues to be for office purposes, the use of the yard for storage will be ancillary. But if the storage use has become the dominant activity with significant environmental effects, an unauthorised material change of use may have occurred.

Permission was granted for the change of use of a building in Scotland to a restaurant and takeaway. Part of the building was sold off to another operator but remains within this use class. Opinion is divided at my authority over whether this subdivision constitutes a material change of use. What is your advice? 

By virtue of Section 26(2)(f) of the Town and Country Planning (Scotland) Act 1997, unless the building is subject to a Section 75 Agreement or a planning condition preventing its subdivision into separate units, subdivisions within the same use class do not constitute a material change of use. Confirmation of this interpretation of equivalent legislation in England is to be found in Circular 03/2005.

A nightclub has changed its use to a strip bar/lap dancing venue.  My authority is under the opinion that, as both of these uses are similar in nature, even though they are sui generis, no change of use application is required. I thought that within sui generis there was no permitted change. Do you have any advice on this issue or have any other readers come across it? EG.

Night clubs were specifically excluded from any Use Class by reason of the 2005 amendments to the Use Classes Order. However, this sui generis status does not mean that changes from a night club to any other use must necessarily be material. The normal tests to establish whether a material change of use has occurred still need to be applied. In the particular case you cite I anticipate that it would need to be established whether the noise, disturbance and vehicular/pedestrian traffic generated by the new use would be significantly different in planning terms than before.GH.

Planning permission was granted for an intermediate care unit with no restrictive use conditions. The unit has been built but not occupied. The applicants are now proposing to use the building as a learning disability unit within Use Class C2. Is planning permission required for the new use? ES.

It goes without saying that any doubt could have been avoided had a condition been imposed restricting the use to that applied for and no other purpose within Use Class C2.  It is always prudent for local authorities to consider such a course of action as development descriptions on their own may not always be relied upon to secure that what is permitted does not lawfully evolve into a more damaging development. For instance, had the ‘intermediate care unit’ use you cite been commenced in the building constructed for it, and been carried on for a reasonable, if only relatively short,  period of time, the Use Classes Order could be used to give a permission for the introduction of the learning disabilities unit. This principle, that a permission given by Order could be may be brought into play in this way was the thrust of Kwik Save Discount Stores Ltd v Secretary of State for the Environment and Oldham Borough Council [1980], although in this case a one month period was judged to be too minimal.

Response

Be this as it may, in the case you cite there is an issue to be addressed as to whether the planning permission in question can be construed as allowing the constructed building to be used for a significantly different form of care use having far greater potential for amenity impact. I cannot find an exact case precedent for this unusual situation, which is one that may only be capable of resolution through the medium of an appeal against refusal to grant a Lawful Development Certificate, and  perhaps ultimately by the courts. Any reader’s experience of this issue will be of very great interest. GH

Further Response

Because the property had been built, would not section 56(1)(c) of the Town and Country Planning Act 1990 apply? This states that if development consists of both operations and a change of use it shall be taken as having been initiated when the operations are begun, or when the new use is instituted, whatever is the earlier. Using this provision the reasonable time period before the use Classes Order permission could click-in, began when building started on the intermediate care home. Or am I wrong? SB

Further Response

I have the feeling that your hypothesis may not stand up were it to come to a court case, but cannot substantiate this. Can any readers weigh in on this one? GH.

An office building was granted permission for conversion to a single dwelling. Conversion works were undertaken, but the building was never occupied. The landowner now wishes to revert back to office use, but the council resist due to loss of housing stock. Can they do this if the building was never occupied for residential use? CL.

I assume that the previous office use enjoyed use rights. The first point to consider is whether planning permission is in fact required for reversion to office use. As it is the conversion works undertaken have demonstrated clear intention to abandon office use, and what is now on site is presumably identifiable as a usable dwelling with the requisite facilities. On the other hand those works have not, I assume, rendered the former use incapable of reinstatement and the courts have not been entirely at one on the question of whether a new residential use commences when premises are fitted out for occupation, or when occupation actually occurs. Although the chances of success are not substantial, there is a case to argue that no material change of use will occur upon reversion. 

Notwithstanding this hypothesis, if an application has already been made for reversion to office use, there is ample precedent for refusal on the basis of loss of residential potential. I cannot indentify a case in the particular circumstances you describe but feel that, with policy support, a local authority would still be entitled to assert loss of housing. Whether that stance would be supported on appeal is another matter, due to the special aspects of the case and the minor nature of the loss. GH.

I am dealing with an enforcement investigation into whether a new timber lodge 10m from the rear of a rural house requires planning permission. The accommodation is occupied by the owner’s parents who were previously housed in a caravan in the front garden, when the facilities of the house were used on a day-to-day basis. This was deemed to be ‘incidental to the enjoyment of the dwellinghouse’. The present lodge can be transported in two pieces and therefore complies with the definition in the Caravan Sites Act 1968. However, it is arguable whether the lodge is, in fact, within the residential curtilage of the main house. Additionally the lodge is separated from the house by a picket fence, it has its own council tax banding and, so far as I am aware, water and electricity supply are separately metered. There is only one access to the site and both buildings share it.  Can you comment on whether the lodge is an independent unit which could be successfully enforced against? DU.

Enforcement cases of this kind raise a complexity of issues. The first of these is the need to establish whether  the structure that has been placed on the land is a building operation or not. As has been debated in Forum before, the mere fact that a structure is termed a caravan using the criteria cited in the 1968 Act, may not necessarily mean that it is not a building operation for the purposes of the Town and Country Planning Act 1990. In the case of the ‘lodge’ type of accommodation you mention it may well be that its supports and service connections give it sufficient characteristics of permanency for permission to be required . For instance, in a 2007 appeal case from the West Midlands (DCS Number 100-050-239) an inspector found that rear garden parent’s accommodation was a ‘mobile home installed as a structure’, where specially constructed supports or foundations had been constructed and plumbing and sewerage systems installed.

The main matter to be resolved is, of course, whether a separate residence has been established on the land resulting in the creation of a new planning unit requiring planning permission. In the case you describe many of the indicators that the accommodation is separate, and does not rely on the main house, seem to be in place. Its curtilage has been defined and service connections are separate, even though access is shared. Such a ‘lodge’ building is certain to provide all the necessary domestic facilities enabling it used independently. The lifestyle question, namely how the accommodation is actually used, is also part of the matrix of considerations that may arise in evidence. For example, in the appeal case already cited, the inspector noted that the parents concerned always slept in the accommodation, used the bathroom and toilet, rested in the unit in the afternoons, and took some meals there. This led him to believe that a separate dwelling s not ancillary to the main house had been created..

The final consideration concerns the input of the Town and Country Planning (General Permitted Development) Order 1995.  If the lodge is deemed to be a building, and provided it is within the curtilage of the dwelling house, as a ‘incidental’ garden structure it is likely to fall within Part 1 Class E as permitted development. However, according to the government’s controversial interpretation of the Order this does not apply if the building is immediately used for primary living accommodation. 

In summary, in order for your council’s potential enforcement to be successful and survive the likely appeal, it does need to assess very carefully whether it has sufficient hard evidence to justify an allegation of an unauthorized building and/or a material change of use. GH

My authority is considering taking enforcement action against a use taking place in an integral garage. The householder is taking in bulk delivery of ‘personal’ items from a mail order company, which are then distributed in a private car to various addresses in the locality. Although the use is visually discreet, complaints have been received from neighbours about the increased level of vehicular activity. Do you think there has been a material change of use? BB.

Should a notice directed against such a use be challenged at appeal, an inspector will have to decide as a matter of fact and degree whether it remains ancillary to the domestic usage of the dwelling and its curtilage, or whether  what has occurred now constitutes a mixed commercial/residential use. My feeling is that the latter allegation could well be difficult to sustain, as demonstrated in an appeal case from East Sussex in 2000 (DCS Number xxxxxxxxxx). Here, the appellant operated as a self-employed courier for two mail order firms. Bulk deliveries were made by 7.5 tonne lorries to the dwelling where they were sorted and then distributed in family cars to various addresses. An inspector accepted that there had been no change in the appearance of the house and noted that any sorting was undertaken within a garage. It was stated that there was no more impact upon the character of the dwelling than the use of a room as an office. However, the inspector also observed that delivery vehicles made two trips a day to the property and this made it an activity which was on the borderline of amounting to development. Given that the duration of each delivery was 15-20 minutes and that the vehicles were not visually remarkable, it was concluded that no change of use had occurred.

In another case from Wiltshire in 2002 (DCS No. 033-207-022) it was held that parcel/catalogue distribution from a house would be a material change of use if there were more than one delivery a day. GH.

I own a detached piece of unfenced land which was conveyed with my house in 1961 when it was designated "garden ground". At that time the land was grassed, in the form of a lawn rather than wild grass, but there was nothing further to indicate that the previous owner had used it as a garden. A planning officer now claims that as I can’t prove that I have used the land as a garden in the intervening period, it has now reverted to agriculture.  Is he wrong in this assertion, and have I a case to claim that the land is part of my curtilage? I do not really want to have to apply for planning permission and pay a fee to use the land as a garden. SH.

The plan you supplied shows that the plot concerned is to other side of an accessway running to the rear of your house which other householders use in  common. The land is not immediately to the rear of your existing garden but is offset by 40 metres. In planning law it is possible for the use of land to be abandoned so that to resume its original use would be a ‘material change of use’ requiring planning permission. In this particular instance there would seem to be a reasonable case to be argued for ‘abandonment’ as the plot is physically separate from your main residential curtilage and there has been no evidence of domestic garden use for almost 50 years. In your favour is the historic linked ownership. To help resolve this matter a cheaper course of action rather than applying for planning permission would be to ask for a Lawful Development Certificate for Proposed Use or Development. The fee for this is half that for a conventional planning application. Alternatively, you could simply fence the land, for which no express permission is required, restore the former lawn, and wait to see if your local authority care to serve an enforcement notice. In both cases there is a right of appeal to the Planning Inspectorate. GH.

We wish to demolish some garages that were previously rented to local residents and use the land for commuter car parking. It is suggested that the removal of the garages would result in the abandonment of the use of the land for car parking in the same way as demolishing a house extinguishes the residential use. Is this correct and is there a difference between residents' parking and commuter parking? ID.

If the building on which the use relies is demolished, destroyed by fire or otherwise removed then the use disappears with it. The standard authority for this view is lddenden v Hampshire County Council [1972]. In your case, it could be argued that since the use of the land for parking is not dependent on the existence of the garages, their demolition would not cause this to be abandoned. However, any subsisting use would appear to be for parking residents' vehicles as an ancillary activity to the occupation of surrounding homes. Although I can find no precedent, the use of land for non-residential parking that is open to all and has no functional link to existing housing is likely to constitute a material change in use of the land and be considered sui generis. PM.

Response

I do not understand how this would be so. I assume that the row of garages was a separate planning unit, or that the individual garages were individual separate planning units from the surrounding houses. In some modern developments the sale or transfer of a house or flat includes a separate garage some distance from the dwelling, so arguably the combined dwelling and garage could be one planning unit. There are various competing cases on the point, including Swinbank v Secretary of State for the Environment and Darlington Borough Council (1987). In more traditional neighbourhoods, however, each unit within a row of garages would be rented out on a first come, first served basis regardless of address or immediate local connection. Presumably, therefore, each garage would be a separate planning unit. GC.

Further Response

As GC acknowledges, the matter is arguable. The answer depends on the individual circumstances in each case, following the general principles established by the courts in Burdle v Secretary of State for the Environment (1972). In accordance with Rawlins v Secretary of State for the Environment (1989), a planning unit may comprise a set of interrelated Activities, even though these are in separate ownership or result from the occupation of different parts of the site. Nevertheless, while change in ownership will not necessarily result in the creation of a separate planning unit, the courts held in Johnston v Secretary of State for the Environment (1974) that in the case of a block of garages let to separate tenants, each individual garage comprised a separate planning unit rather than the block as a whole.

Planning permission was granted in 1990 to extend a house and build a detached garage. A start was made on excavating the foundations, so normally the permission would remain valid today. In 2006, a further permission was granted for extensions and a detached garage and this was implemented. Could the owner, if he was so minded, demolish the recent extensions and implement the 1990 permission [, bearing in mind that technically a start was made on it]? MW.

There have been quite a lot of cases on this point. Development Control Practice 4.325 discusses the issue and lists several relevant court cases. As a general rule, if the footprints of the two schemes overlap, the house owner would not be able to implement the earlier permission. JH.

Would planning permission be needed to use land as allotments. The land is scrubland and I can find no evidence of a previous use. Obviously any structures such as sheds would require planning permission but does the use of the land itself require a change of use or is it an agricultural use? CT.

If land is used for agricultural purposes, planning permission is not, of course, required. In Crowborough Parish Council v Secretary of State for the Environment and Wealden District Council [1980] the definition of agriculture in primary planning legislation was examined. It was ruled that both the local authority and the Secretary of State had been wrong to assert that the use of the land for allotments was a material change of use because of the greater intensity of use that would be involved, changes that would occur to the land’s appearance of and the increased number of people visiting the site. The court held that what was being carried out on the land was horticulture, fruit growing and so on, which were included in the statutory definition of agriculture. Accordingly the wrong test had been applied.  It is, however, necessary to consider the nature of the use. If the allotment is used, for example, for leisure plot purposes or has a significant area of ornamental garden then it would not be an agricultural use. JH.

Response

Further to CT’s query and the "Field games change of use claim denied" decision published in "Casebook" of the same date (DCP No 100-057-991), could you advise if planning permission is needed when a resident backing onto private allotments which are protected open space buys the adjacent plot and extends his back garden? If he cultivated the land as an allotment, would it no longer be a change of use to residential? Looking at the "Field Games" decision, could the owner, in either scenario, claim lawful use after 10 years? IB.

Further Response

If the fence, wall or hedge between the garden and allotment were removed, it would be strong evidence of a change of use as two planning units would have been merged. If the fence, etc is retained, you would need to assess whether there has been a change of use of the allotment from, say, agriculture to garden/recreational purposes. If a change of use occurred either way and no action was taken for 10 years, immunity from enforcement would be obtained. JH.

If a church starts regularly providing refreshments for the general public at what point does this become a material change of use? TM.

Churches in shopping centres or other busy locations nowadays often serve refreshments throughout the week to raise money, to maximize use of their premises, etc. Assessing whether this constitutes a material change of use would be a matter of fact and degree. A church which held an occasional coffee morning for the general public to raise money clearly would not require planning permission nor would one providing refreshments to the congregation after a service. Factors that needed to be taken into account in assessing whether a material change of use had occurred would be the number of people attracted into the church, the proportion of the building used for such purposes, the amount of time it was open for such a use and whether what is offered are light refreshments or substantial meals. Should the catering facility not be operated by the church authorities but be a separate commercial operation/franchise, this would almost certainly constitute a material change of use. As providing refreshments to outsiders now happens fairly often in places of worship, I would consider that a change of use would have occurred only when the scale is quite significant.  JH

A first-floor nightclub above a separate ground-floor bar was destroyed by fire and what was left was demolished so now the first-floor slab is effectively the building roof. A month before the fire the nightclub was changed to a lap dancing club. An application has been submitted to rebuild the nightclub. As the first floor has been completely removed, could the council consider the principle of having a night club in this location as the use rights have been lost? Can the Council impose a condition to prevent the night club being used as a lap-dancing club? SK.

Issues relating to replacing fire-damaged structures are considered in section 4.325 of Development Control Practice. Applying the principles of lddenden v Hampshire County Council (1972), if a building is destroyed its use rights are lost and there is no right to reinstate it. Having said that, your authority could if it wished give weight to the fact that the nightclub was lost as the result of misfortune and grant permission for its rebuilding even if that might not normally be granted in this location. Regarding the possibility of imposing a condition preventing use as a lap-dancing club, as lap dancing is controlled by the Licensing Act 2003 such a condition would be most unlikely to be supported on appeal as circular 11/95 advises against conditions which duplicate other controls. However, other conditions to control amenity impacts, such as operating hours and soundproofing could be imposed. JH.

A planning permission for a holiday park comprising 25 permanent holiday lodges, 15 touring caravans and 15 camping pitches with a café and shop has been implemented.  The operator wishes to sell from the site up to seven secondhand touring caravans or motorhomes.  There are no conditions restricting sales from the site.  I have argued that the level of sales is ancillary to the primary use of the site as a holiday park, but the council wishes to see evidence to support this.  Can you help? GS.

These sales would not be ancillary to the holiday park as a large proportion of them would be to people coming onto the site just to buy a caravan or motorhome rather than people staying there. This would contrast with the sales from the campsite shop where the sales would almost entirely be to holidaymakers so the use would be ancillary. Furthermore, the scale of use would be too large for it to be de minimis. Thus, I consider permission would be required. JH 

My client owns farmland across which lies a canal last used in the 19th century and abandoned in the 1920s. Ownership has reverted to adjoining landowners. Some of it has been filled in; the majority is overgrown, with the towpath inaccessible; bridges and locks lie derelict. We have been approached by a canal conservation charity which wishes to restore it through donations and lottery funding. Reinstatement is favoured in the development plan. What is the canal’s planning status? Is the charity correct in stating no approval is required to repair the infrastructure (including substantive clearing and rebuild), or to make use of the canal once restored? In my view this constitutes engineering operations and a change of use, as it no longer has the status of a canal. CN.

I agree that this would require planning permission. Certainly, excavating infilled sections would constitute engineering operations and it is highly likely that other renovation works would be operational development. Furthermore, the infilling of sections, the derelict condition and the reversion of the land to adjoining owners indicate the canal use right would have been abandoned. Having said that, if the development plan supports the canal’s reinstatement it seems unlikely permission for its reopening would be refused. JH. 

Development Control Practice (section 23.213) indicates that permission is not always required for operational development for a temporary horse shelter on skids, as they are not fixed to the ground. However, how does this stand with regard to the use of the land for siting these structures? NH.

When considering issues relating to changes of use, the planning unit is the basis for assessment. This would be the holding or field on which the horses are kept rather than just the site of the horse shelter.  Whether keeping horses on agricultural land constitutes a change of use is a somewhat complicated issue and this is considered in section 4.3441 of Development Control Practice. JH.

A resident of a 4-bedroom bungalow uses a small part of her property as a letting agency.  She resides with her elderly parents and employs her son in the business.  He occasionally stays at the property but has his own house also.  These are the only persons employed.  Most business is conducted by internet and phone with occasional visits to the property by tradesmen, approximately one per day and by clients at the same rate.  Most clients are seen away from the premises and the principal and son travel from the house in private cars. A complainant alleges up to 50 such vehicle movements per day. Would you consider the vehicle movements by the resident and son should be considered when deciding whether a material change of use has occurred and, given all the facts, do you consider a change of use has occurred? GT.

Circular 03/05 indicates working from a home is not a material change of use "if it does not change the overall character of its use as a residence".  The Department of Communities and Local Government leaflet , Step-By-Step Guide to Planning Permission for Small Business, gives further advice on this issue. Two factors lead me to believe a material change of use has occurred; there being an employee who is not normally resident and the number of vehicle movements involved. Having said that, before serving an enforcement notice, it would be necessary to get independent evidence of the number of vehicle movements and that they relate to the business use. JH.

Is planning permission required if two flats within a terraced house are converted back into the original single dwelling? AC.

Until the case of London Borough of Richmond upon Thames v Secretary of State for the Environment, Transport and the Regions and another (2000), it was presumed that combining two or more dwellings into one did not require planning permission, but in that case it was decided a conversion from seven flats to one house was capable of being a material change of use. Surprisingly such an assessment would depend on not only the external impact of the change, but also the impact of the change on the particular council’s policies. The issues are explained in more detail in section 4.3243 of Development Control Practice and that should be referred to to decide whether the circumstances of your particular proposal mean permission should be required. JH.

Response

Given the frequency with which the issue arises it seems unsatisfactory to be relying on the London Borough of Richmond upon Thames v Secretary of  State for the Environment, Transport and the Regions and another (2000) case and Development Control Practice in deciding whether changing two dwellings into one requires permission.  What is to be made of the advice at paragraph 49 of circular 04/2008 that, 'There is no change of use if, say, four flats are combined into two apartments"? DS.

I was not aware of the circular 04/2008 advice when I drafted my reply. Nevertheless, government circulars are only advisory and this advice is given in a fee circular, not one relating directly to this issue. Furthermore, a court case would "trump" a circular. It would, however, seem desirable for this issue to be clarified by new legislation as it is very unclear in what circumstances combining dwellings requires permission. JH

Further Response

Further comments have been received on the issue of whether planning permission is required to convert two flats to one (Planning 2 April, p 21 and 23 April, p 21).

In 2006 a client wanted to re-convert 4 flats back to the original single dwelling. The local authority quoted Richmond upon Thames London Borough Council v Secretary of State for the Environment, Transport and the Regions [2001] arguing planning permission would be required. In a lawful development application I successfully argued that Richmond specifically referred to the loss of affordable housing units which was against the authority’s policy. In my case I demonstrated, with evidence from an estate agent, that the flats’ then selling price of the flats was £475,000. As this could not reasonably be construed as 'affordable', the authority issued the certificate. JW.

Planning permission has been granted following an enforcement appeal for an agricultural worker’s caravan on a holding. The farmer now wants to move the caravan to a different position. Is planning permission required? NW

As with the previous query, I am unable to find an appeal or court case on this issue. Putting the caravan on the site would be a change of use rather than operational development. Applying the principles of Burdle & Williams v Secretary of State for Environment and New Forest Rural District Council [1972], the site would seem to be one planning unit unless the caravan had its own defined curtilage. Thus, repositioning would not result in any change in the character of the use so planning permission would not be required. This, however, is a somewhat tentative conclusion and I would be interested to hear if readers have views on or experience of such an issue. JH. 

Response

I would say it depends upon the permission’s terms. If the permission is silent on the location I would agree with JH that it can be located anywhere within the application site. However, if, for example, visual impact was an issue at the appeal, or the justification for the caravan was that it needed to be in close proximity to certain buildings, it may be that the inspector specified (e.g. by showing the approved footprint outlined in green on the plan) exactly where the caravan could be located. PB.

A client occupies two adjoining fields in different ownerships and has for many years used each to hold a car boot sale, for 14 days, as provided for by part 4, class B of schedule 2 of the General Permitted Development Order 1995. The Council accepts both fields are individual planning units.

Over the last 4 years, the boot sales’ popularity has grown so when he uses the smaller field, he allows parking on the larger one. There is no charge for parking and no market related activity takes place on the field used for parking. He considered he was allowed to use the field for up to 14 days as a market, and for 14 days as a car park. 

Last year, the Council served a temporary stop notice, alleging the unauthorised use of land for the holding of markets and/or car boot sales and ancillary car parking. I consider his use of the larger field as a market for 14 days and as a car park for 14 days accords with the permitted 28 days use of land, for any purpose. Could you help? RR   

It is important to consider what the planning unit is in these circumstances. Issues of defining the planning unit are considered in section 4.3424 of Development Control Practice and section 4.324 considers planning unit issues in relation to part 4, class B temporary markets. Given that two adjoining fields are used for one business, I am somewhat surprised the planning authority has considered them two planning units up to now and an appeal decision in Norfolk in 2007 (DCS no 100-047-598) supports my view. If one field is being used for parking ancillary to the boot sales on the other field, I would consider there is now definitely one planning unit with a 28-day market use, so the council is entitled to serve a temporary stop notice. JH.

A client has permission for a two-storey extension to a house and the conversion of the whole to four flats. In the present market, two houses would be preferable to four flats, but the council advises this would be unacceptable because of inadequate amenity space provision for family homes. The matter is currently being argued at appeal. However, if they were to construct the extension as permitted (i.e. as two flats) and then convert them to a dwelling would they require permission? There are no external changes involved and local residents would prefer a house to flats. AS.

Applying the principles of Kwik Save v SoS & Oldham M.B.C. 1980, it would not be possible to construct the extension as two flats and then immediately convert it to a single dwelling. It would need to be completed and presumably occupied as two flats for a reasonable period. Even then, on the basis of London Borough of Richmond upon Thames. v Secretary of State for the Environment, Transport and the Regions and another (2000) which has recently been discussed in these columns (Planning 2 April, p 21, 23 April, p 21 and 21 May, pxx), it is possible the change from two units to one requires planning permission. The Richmond judgment gave weight to the fact the amalgamation of units was contrary to the authority’s policies. In this instance, the amalgamation would be contrary to council policies, albeit not ones directly relating to the amalgamation issue. Thus navigating through this route would be far from straightforward and possibly not practicable. JH.

I have an application where the applicant is using the premises to eat and sell cold foods on and off the premises. Whilst he has provided details of what is being sold on and off the premises, as well as indicated the number of seats. Are you aware of any appeals or cases, such as Starbucks-type operations, where an inspector has taken a decision about whether the use is A1? YB.

Circular 3/05 states sandwich bars should not necessarily be excluded from the A1 use class merely because a limited amount of hot drinks, soup or food are sold, or a few customers eat on the premises provided such activities are an ancillary part of their business. I consider this advice causes confusion and it would be better if the provision of any seating or any seating above a certain limit automatically took the use out of the A1 class. We do, however, have to work under the guidance the government provides. Many coffee shops operate as A1 uses and appeal decisions have often supported that view. The issue is explored in detail in section 16.1111 of Development Control Practice. JH

A parish council wishes to reuse an existing Baptist burial ground. This site has not been used for burials for approximately 100 years. It is overgrown and, other than having a footpath through the middle, is to all intents and purposes unused. Has the burial ground use been abandoned so planning permission would be required to recommence burials? Or is it that there can never be abandonment of a burial ground as the there will always be people buried there? AM.

Not surprisingly, I have not been able to come up with any court cases or appeals which parallel this situation. The case Trustees of Castell-y-Mynach Estate v Secretary of State for the Environment (1985) laid down four tests for whether a building’s use has been abandoned, the physical condition of the building, the length of time for which the building had not been used, whether it had been used for any other purposes and the owner's intentions. Whilst clearly a burial ground is not a building, it would seem sensible to apply these tests to this scenario. Although no burials have taken place for a long time, I would suggest the use is continuing as there are still bodies buried there. The site is overgrown, but that seems to be the only physical indication of abandonment and you have given me no indication of another use taking place or indication of the owner’s intention to abandon the use. Thus, whilst this is not clear-cut, my inclination would be to consider the use has not been abandoned. JH. 

Response

Cemeteries and churchyards closed by Order in Council retain burial rights for unfilled plots, for those purchased in perpetuity and for family vaults. All this supports your view that a burial use, especially if the land is still consecrated cannot be abandoned. Planning law may be unclear but burial law is not. NB.

Further Response

The burial ground which prompted AM’s question was a Baptist one, rather than an Anglican one, so would not be consecrated land (only an Anglican burial ground would be consecrated land). This comment does, however, to a small degree support my view that the use right had not been abandoned in AM’s case. JH

Would planning permission be required to use a property as a temporary Christmas night shelter for homeless people? SM

If a church or other place of worship were to provide a night shelter for a short period, I consider this would be classed as reasonable part of its work so planning permission would not be needed. This would be similar to a church holding an occasional fund-raising jumble sale. The use of other premises such as a disused office or factory would require planning permission. In practice, however, as such uses are very short-term and it would be impractical to take enforcement action as such a use would have ceased long before any notice could take effect, normally planning authorities do not seek to control such activities. JH. 

A number of community groups, including parish councils wish to create new allotments but are getting conflicting advice from planning departments and the National Society of Allotment and Leisure Gardens (NSLG). The NSLG quotes Crowborough Parish Council v. Secretary of State for the Environment and Another (1980) where it was held that using agricultural land as an allotment did not require planning permission. The NSLG also state on its website that permission is not required for sheds, greenhouses and polytunnels below a certain size. However, I understand that the definition of agriculture in the General Permitted Development Order 1995 only covers land operated as a business which clearly excludes allotments. The only permitted development rights that I believe cover allotments is part 12 class A, development by local authorities.

Has there been any change since 1980 that would invalidate the Crowborough ruling? Am I correct in assuming that the permitted development rights for agricultural buildings do not apply to allotments? Is a parish council a local authority for part 12 purposes? Is there any provision that gives allotment owners permitted development rights for sheds, greenhouses or polytunnels? PB.

In "Crowborough" the definition of agriculture in primary planning legislation was examined. It was ruled that both the local authority and the Secretary of State had been wrong to assert that the use of land for allotments was a material change of use because of the greater intensity of use that would be involved, changes that would occur to the land’s appearance and the increased number of people visiting the site. The court held that what was being carried out on the land was horticulture, fruit growing and so on, which were included in the statutory definition of agriculture. Accordingly the wrong test had been applied.  It is, however, necessary to consider the nature of the use in assessing whether allotments are an agricultural use. If the allotments are used, for example, for leisure plot purposes or have a significant area of ornamental garden then it would not be an agricultural use. There have been no subsequent developments since the "Crowborough" judgment.

I agree that allotments would not enjoy agricultural permitted development rights. If a parish council were to erect sheds or other structures on allotments, they could do this under the class 12 rights, but these rights would not extend to the allotment holders. There is no other provision in the General Permitted Development Order giving permitted development rights for allotments, though often planning authorities turn a blind eye to small structures erected on allotments.  JH. 

If allotments are defined as being agriculture under the Town and Country Planning Act 1990 and therefore are excluded from the definition of development, is planning permission required to use any land, no matter what its current use is, as allotments? Can it be argued that a small shed or greenhouse which does not have foundations and is not connected to services, i.e. it is simply placed on paving slabs, is not a permanent building and therefore falls outside the definition of development? PB

s55 of the Town and Country Planning Act 1990 say that the use of land for the purposes of agriculture (or forestry) does not constitute development, so planning permission would not be required to use any land for allotments where their use if of an agricultural nature. If the allotments use is non-agricultural, such as a leisure plot type use, then normally planning permission would be required for their establishment.

Moving on to your second query, deciding whether structures which are moveable or are not attached to the ground require planning permission is quite difficult and section 4.311 of Development Control Practice explains the principles in some detail. The lead case on this issue is Cardiff Rating Authority v Guest Keen Baldwins Iron and Steel Co 1949. The three main issues to be considered are whether the structure’s size was such that normally it would have to be built on site rather than brought to the site readymade; whether the construction suggested some degree of permanence meaning it could only be removed by pulling it down or taking it to pieces and whether the construction was physically attached to the ground. Just because a structure is not attached to the ground does not necessarily mean that it does not require planning permission – for example it has been held placing a shipping container on land requires planning permission where the intention is to keep it there on a permanent basis. Someone who erects a shed or greenhouse on an allotment would normally expect it to remain there many years, so even if it was not attached to the ground, building it would require permission. On the other hand a structure which was intended to be temporary such as a small polytunnel which would remain in place for just one growing season and then be removed would probably not require permission even if it were fixed to the ground. JH


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