SECRETARY OF STATE FOR TRANSPORT, LOCAL GOVERNMENT AND THE REGIONS v WALTHAM FOREST LONDON BOROUGH COUNCIL [2002] EWCA Civ 330

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION (Administrative Court)
[2002] EWCA Civ 330Case No Case No: C/001/2305Venue Royal Courts of Justice, Strand,, London, WC2A 2LL
Between
SECRETARY OF STATE FOR TRANSPORT, LOCAL GOVERNMENT AND THE REGIONSAppellantWALTHAM FOREST LONDON BOROUGH COUNCILRespondent
Before
Lord Justice SchiemannLord Justice TuckeyLord Justice Jonathan ParkerPhilip SALES and Rupert WARREN (instructed by Treasury Solicitor for the Appellant)RICHARD LANGHAM (instructed by Legal Services L.B. Waltham Forest for the Respondent)Date 15 March 2002

Lord Justice Schiemann:

This

[1]is the Judgment of the Court. Before the Court is an appeal by the Secretary of State for Transport Local Government and the Regions against a decision of Sullivan J. in a planning matter. The case concerns an application under section 192 of the Town and Country Planning Act 1992 for a certificate of lawfulness of proposed use or development. That section provides as follows:-(1) If any person wishes to ascertain whether- (a) any proposed use of buildings … would be lawful, he may make an application for the purpose to the local planning authority specifying the land and describing the use … in question.(2) If, on an application under this section, the Local Planning Authority are provided with information satisfying them that the use … described in the application would be lawful if instituted or begun at the time of the application, they shall issue a certificate to that effect; and in any other case they shall refuse the application.(3) A certificate under this section shall- (a) specify the land to which it relates; (b) describe the use … in question … (c) give the reasons for determining the use … to be lawful; and (d) specify the date of the application for the certificate.(4) The lawfulness of any use … for which a certificate is in force under this section shall be conclusively presumed …[2]The application with which we are concerned did not describe the existing or last use of the premises but it is common ground that the present or last use of the premises was as a dwelling house. How many people lived there does not appear.[3]The application specified the proposed use. It was for 6 persons recovering from mental ill health who will be living together as a single household with an element of care. The existing use is described as “Use as a C3 use”. That is a reference to the Town and Country Planning (Use Classes Order) 1987 which defines that class as: Use as a single dwelling house …(a) by a single person living together as a family, or(b) by not more than six residents living together as a single household (including a household where care is provided for residents).[4]In answer to the question ‘State why you consider that a Lawful Development Certificate should be granted for this proposal’ the reply was given ‘As the building will not be occupied by more than six persons and as the occupants will be living as a single household sharing common facilities it is considered that the use of 6 persons notwithstanding an element of care falls within class C3 …’[5]Further details of the proposed use were given in due course. The Local Planning Authority certified that the proposed use would not be lawful, giving the following reason:
‘The proposed use is for occupancy by 6 persons requiring care and a minimum of one care provider at the premises at any one time …’
[6]Section 195 of the Act provides that:(1) Where an application is made to a Local Planning Authority for a certificate under section … 192 and (a) the application is refused … the applicant may by notice appeal to the Secretary of State.(2) On any such appeal, if an in so far as the Secretary of State is satisfied – (a) … that the authority’s refusal is not well founded he shall grant the appellant a certificate under section … 192.(3) If … the Secretary of State is satisfied that the authority’s refusal is … not well founded he shall dismiss the appeal.[7]So Mr. Tully, the applicant for the certificate, appealed to the Secretary of State who appointed an Inspector to decide the appeal. That Inspector decided that Mr Tully’s contention that the existing and proposed use both fell within the same Use Class was ill-founded – essentially because the presence of a carer brought the total of residents to seven. That conclusion is not challenged before us. However the Inspector went on to say – 9. … the only remaining issue to decide is whether or not, as a matter of fact and degree, the character and nature of the proposed use would be materially different from the present or last use as a dwellinghouse. Any normal dwellinghouse use by a family or other single household, especially where there may be children or an extended family, might well include an element of care of children or the elderly. 10. … I have no reason to suppose that the building, as extended, would not retain the physical appearance of a normal dwellinghouse in a residential area. The information provided with the application suggests that residents would live on a communal basis. … This seems to me to be not unlike the living arrangements of many normal families where, generally, the parents (though in this case the staff acting in a kind of loco parentis) would provide the meals, but encouraging the children (in this case the residents in care) to participate in this and other domestic chores. Residents would share the use of communal facilities … I do not consider that the number of occupants, including staff, is so great as to cause any more vehicular or other general activity than might be generated by any large family or group of people, as might live together as a single household in a large dwellinghouse like this. Nor do I consider it likely that the level of visitors to the premises and the effect generally on the surrounding area would vary significantly from that arising from the social and domestic activity of any normal dwellinghouse of this size. 11. … the purpose of the proposal is to enable people recovering from mental ill health to live in as normal a residential household environment as possible, as part of the community, rather than in an institution. In all the circumstances, I take the view that, as a matter of fact and degree, the character and nature of the proposed use would not differ materially from that of the previous use of the property as a single family dwellinghouse. I therefore conclude that no material change of use requiring planning permission would be likely to occur if the property were used in the manner proposed, and accordingly that the use would have been lawful at the date of the application.[8]It is common ground that the Inspector did not investigate what the actual use of the premises was at the time of the application. He appears to have proceeded on the basis(1) that without the need of any further planning permission it would have been lawful to use the premises for a large family and(2) that the change from use by a large family to use by 6 patients plus a carer or two was not a material change of use.[9]The Local Planning Authority pursuant to section 288 of the Act challenged the lawfulness of that decision. They accepted that the inspector was entitled to conclude that the change of use from use by a large family to use by patients and carers was not a material one. However they submitted that the Inspector erred in taking as the base for his comparison use by a large family when there was no evidence that the house at the time of the application for the certificate was being used by a large family. The Judge accepted that submission, held that the Inspector had fallen into error and quashed the certificate.[10]He said:
“… there was no information as to the number of persons who occupied the property as a single dwelling house; was it one elderly person living alone, or was it a large family perhaps providing care for unrelated residents who were nonetheless treated as part of the family?”
[11]The issue before us is exactly the same as it was before the Judge albeit that the submissions on behalf of the Secretary of State have been more elaborate.[12]Mr Philip Sales on behalf of the Secretary of State made the following submissions: Planning control is imposed by statute in order to help strike a balance between the requirements of the landowner and those of other people – in particular his neighbours. The control which has been imposed by statute allows to a landowner a certain flexibility. He does not have to ask for permission every time he makes any change. It is a matter for judgement of the Inspector whether a particular change is material. The inspector asked himself the right question in paragraph 9 and came to a legally permissible answer in paragraph 11. To focus on the specific activities last carried out on the site rather than the range of activities which could be carried out without the need for further planning permissions was wrong as a matter of statutory construction aided (if need be) by section 3 of the Human Rights Act 1998 and Article 1 of the First Protocol.[13]He pointed out that it was accepted that it was lawful to use the house for a family of eight and that it was accepted that the Inspector was entitled to conclude (as he did) that it was lawful to change the use of the house from use by a family of eight to use by 6 persons recovering from mental illness and two carers. He submitted that in those circumstances it would be odd if the law was that it was unlawful in one go to change the use of the premises from use by one elderly person (to take the Judge’s example) to use by six and 2 carers.[14]His basic submission, that if you can do something lawfully in two steps then it must be lawful if you do it in one, sounds simple and attractive. It is however in our view wrong. The accretion may be gradual but the difference between the beginning and the end is highly significant. The matter can be easily demonstrated in cases of simple intensification of use – a classic planning problem. To move from intensity x to 2 x may not be a material change of use. Nor to move from intensity 2 x to 3 x . Nor from 3 x to 4 x, and so on up to infinity. It conflicts with common sense to suggest that, because of that fact, to move from x to 100 x cannot be a material change of use. Under planning law it is permissible for a Local Planning Authority to require discontinuance of a use if it is expedient – s.102. Such an action attracts liability for compensation for the depreciation in the value of the interest affected – s.115. That can involve valuing the right to use the land for activity x plus the right to make any non-material change of use. It will not necessarily involve the right to use the land for activity x at an intensity of 100 x .[15]The structure of the Act so far as relevant is well known.[16]Planning permission is required for the carrying out of development of land – s.57(1). Development means the making of any material change in the use of any buildings – s.55(1). In the case of buildings which are used for a purpose of any Use Class the use of the building for any other purpose of the same Class shall not be taken to involve development – s.55(2). For the avoidance of doubt it is declared that the use as two separate dwelling houses of any building previously used as a single dwelling house involves a material change of use – s.55(3). Planning permission can be granted by a development order such as the Town and Country Planning (General Permitted Development) Order 1995 – s.59(2). Various changes of use are permitted by that Order.[17]It is clear that the word lawful in section 192 means lawful in the context of the planning legislation. What either does not require planning permission or has planning permission (either under the GPDO or because of an express planning permission) is lawful. Therefore in the context of an application for a section 192 certificate what has to be decided is whether a planning permission which has not been granted is needed for the making of the proposed change of use. It is clear that, in a case such as the present, what has to be compared, in deciding whether a proposed change of use is a material change of use, is the present use and the proposed use. The crucial question is what factors are in principle relevant in deciding whether a change of use is a material change of use. Assume that(1) under the planning legislation no further permissions are needed to move from the existing use to a notional use permitted under the planning legislation and(2) that a change from the notional use to the proposed use is not a material change. Does this have as a consequence that the change from the existing use to the proposed use cannot be material? The Inspector held that the answer to this question was in the affirmative. We disagree.[18]We agree with the Judge. Like him we consider that the fact(1) that no further permissions are needed to move from the existing use to the notional use and(2) that no further permissions are needed to move from the notional use to the use applied for is potentially relevant to the question whether planning permission should be granted for the use applied for. However, like him we agree that the interposition of a notionally permitted use between the existing use and the use applied for is a complication not relevant to the exercise under section 192.[19]Mr Sales submitted that the Inspector’s approach was consonant with the approach of the court to cases where someone wishes to resume a lawful use of land which has been dormant such as Panton v Farmer & SSETR [1999] JPL 461. Where a use has become dormant, reactivation of the use, he submitted, would necessarily result in an intensification of the use from its dormant state. He relied on the holding that a dormant use which had arisen by way of a material change of use, but was not active, possibly for a long period of time could still exist in planning terms if it had not been lost by operation of law - by abandonment, the formation of a new planning unit or by way of the making of a material change of use. The background there was that an application had been made for a certificate under s.191 in relation to an activity which had acquired immunity from enforcement under previous statutory provisions but which had not been carried on for the previous 10 years. The issue was whether in those circumstances the right approach was to start at the date of the application for the certificate and apply the current statutory provisions so as to see whether a statutory immunity from enforcement action was acquired under those provisions or whether the landowner could rely on the previously acquired immunity. The judge held that the latter was the case. We agree but do not accept the relevance of that decision to the present case.[20]Mr Sales submitted that even if the Judge’s approach would have been right as a matter of statutory construction prior to the coming into force of the Human Rights Act 1998 that construction should not prevail in the light of the provision in Article 1 of the First Protocol. We disagree. Even if one starts from the position that the very existence of the planning legislation amounts to an interference with a person’s right to the peaceful enjoyment of his possessions or if one accepts that giving a negative answer to a request for a certificate amounts to such interference – neither of which propositions is self-evidently true - it seems to us manifest that to control material changes of use to the extent of informing an individual that planning permission is required for a proposed activity is proportionate to the legitimate aim in view. One must remember that if the proposed change of use is not material then the certificate will be granted. The present case is only concerned with the appropriate test for materiality.[21]We therefore think that the Judge was right and that this appeal should be dismissed.

Order

Appeal Dismissed; costs to be paid by the appellants to the respondent’s in the sum of £3,910 plus VAT; Application for permission to appeal to the House of Lords refused. (Order does not form part of the approved judgment)

Cited in 3 later judgments