Material Change of Use:A workshop

Cain Ormondroyd, BarristerFrancis Taylor Building

Topics to cover• Defining uses and intensification• Changes of use and the planning unit• Changes of use in the Green Belt

Defining uses and intensification• Focus on sui generis/mixed uses• No statutory provision• Refer to caselaw and guidance

Circular 10/97, Annexe 8 “precise details of what use [is] found to be lawful, why, and when”

“more than simply a title or label”“state the characteristics of the matter so as to define it unambiguously”

TASK 1

Consider and discuss possible details that could be included in the description of a use.

‘Characteristics’ – some suggestions• Amount of material stored/processed• Nature of material stored/processed• Dates and times when use is active• Number of employees• Number and size of caravans

When is a change material?“the legislation is designed to regulate questions of the human environment and not questions of physics. One must look at the question… from the point of view of human beings likely to be affected”

Schieman LJ in Thames Heliports v LB Tower Hamlets (1997) 74 P. & C.R. 164

When is a change material?• Offsite impacts are relevant and must be considered: Forest of Dean DC v SSE [1995] JPL 937 • But cannot give rise to a material change of use in and of themselves: Hertfordshire CC v SSCLG [2012] EWHC 277 (Admin)

When is a change material?• A change of use by pure intensification is definitely possible: Fidler v FSS [2004] EWCA Civ 1295• But very rare!

TASK 2

Discuss recent cases from your experience where intensification has been alleged/considered.

What other changes were involved?

Intensification – other changes• Ancillary use to mixed use• Expansion of area used• Nature of use (e.g. objects stored)

The planning unit3 familiar scenarios (Burdle v SSE [1972] 3 All ER):• Single use of land occupied – one unit.• Mixed use of land occupied – one unit.• “Physically separate and distinct” areas used for “substantially different and unrelated purposes” – multiple units.

The planning unit…And a fourth:• Land in multiple occupations used for single main purpose or mixed purpose

Changes in the planning unit• Subdivision – when does it cause a material change of use?• New planning unit and the loss of existing use rights

TASK 3

Discuss examples where subdivision of the planning unit would or might lead to a material change of use.

Subdivision → material change• Mixed use or primary/ancillary uses split into two separate uses• Residential subdivisions: s55(3)(a), TCPA 1990• Activity unevenly distributed such that new planning unit is more intensively used?

Loss of lawful use rights• Planning permission → new planning unit → new chapter in planning history → lawful use rights lost (e.g. building)• Also (more rarely) material changes of use: Newbury District Council v SSE [1981] AC 578 • If no planning permission? Dover DC v SSE [1991] 1 PLR 48

Change of use in the Green Belt“the making of material changes in the use of land are inappropriate development unless they maintain openness and do not conflict with the purposes of including land in the Green Belt”

REPEALED PPG2, para 3.12

Change of use in the Green Belt“Certain other forms of development are also not inappropriate in Green Belt provided they preserve the openness of the Green Belt and do not conflict

with the purposes of including land in Green Belt. These are…” NPPF, para 90

Change of use in the Green BeltFordent v SSCLG [2013] EWHC 2844 (Admin)• Change of use is inappropriate (unless within NPPF90, e.g. mineral extraction)• No absurdity because preservation of openness/conflict with purposes is to be judged in the case of buildings “in the light of the nature of the… development”.

Change of use in the Green BeltFurther cases in the pipeline:• Fall and Regalworld v SSCLG• Heart of England v SSCLG