In the last of our blogs on developments in planning law in 2022, we consider the extent to which you can change the development for which planning permission has been given without the need to make a new application for a full planning permission.
The Reid Case – The facts
The issue was considered in the High Court case of Reid v Secretary of State for Levelling-Up, Housing and Communities (2022) ("Reid").
In that case, planning permission was granted for "34 holiday units" and related accommodation (the description of the development). The permission was made subject to a condition to the effect that notwithstanding the Town and Country (Use Classes) Order 1987 (the "Use Classes Order") (which would otherwise allow the accommodation to be used for general residential purposes) it was only to be used as "holiday accommodation".
An application was made under s73 Town and Country Planning Act 1990 (the "Planning Act") to remove that condition, meaning that the units could be used as permanent residences. The local planning authority refused to consider the application.
The Reid Case – The initial decision
The matter went to appeal where the Inspector decided that the removal of the condition would enable the 34 units to be used for general residential purposes which was directly in conflict with the description of the development as "holiday units", and s73 could not be used to circumvent the description of the developments. This decision was challenged in the High Court.
The Reid Case – High Court decision
The reason that this case is interesting is that it tests the scope of an earlier decision in the Finney v Welsh Ministers & Ors case from 2019. In that case permission was granted for a development, which was described as a wind turbine of up to 100m.
A s73 permission was then granted which added a condition to the effect that the turbine was not to exceed 125m. That condition was held to be unlawful because 125m is (obviously) higher than 100m and so the condition in the s73 permission directly conflicted with the description of the development – that is, a turbine up to 100m.
The Inspector, on appeal, had acknowledged that the Reid case was not a direct comparator with Finney – the latter added a condition and the former sought to remove a condition. However, she decided that the result of the removal of the condition restricting the use of the units as holiday accommodation would not be consistent with the description (i.e. of "holiday units") and so was unlawful.
At first blush, this might seem to be correct. The High Court, however, disagreed. In addressing the Inspector's reasoning, the Judge said "In considering this question [the Inspector] ought to have taken into consideration that what can be done with the use of the land may not exhaustively be written into the description but may arise by operation of the law".
The Judge was saying that the removal of the restrictive condition did not in itself result in a conflict with the description of the development. That remained intact. Put another way the unrestricted residential use would not, following the removal of the condition be allowed under the permission. It was allowed because under the Planning Act a change of use within a Use Class (here C3) was permitted by virtue of the Planning Act itself.
Our view
This might seem like a narrow point but we think this case could be highly relevant in the future, principally because of the changes to the Use Classes Order enacted in 2020. These changes introduced much greater flexibility to change use by amalgamating several of the former Use Classes. In response to this, it seems that local authorities have routinely imposed conditions of the type found in Reid, with the aim of limiting changes of use within those wide Use Classes.
Of course, Reid only deals with changes of use, not physical development and you should also consider whether there are relevant restrictions in any associated planning agreements.
See our other blog posts in this series:
Our top 6 Planning Law takeaways in 2022 – Part 1: The problem of overlapping planning permissions
Our top 6 Planning Law takeaways in 2022 – Part 2: Proposals to stop "landbanking"
Our top 6 Planning Law takeaways in 2022 – Part 3: What to do when the planners delay
Our top 6 Planning Law takeaways in 2022 – Part 5: Retained EU Law Repeal Bill
Originally published 14 April, 2023.
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