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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Manchester City Council v Secretary of State for Housing, Communities and Local Government  EWHC 858 (Admin) (23 April 2021)
Cite as:  EWHC 858 (Admin)
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QUEEN'S BENCH DIVISION
1 Bridge Street West
Manchester M60 9DJ
B e f o r e :
| MANCHESTER CITY COUNCIL
|- and -
|SECRETARY OF STATE FOR HOUSING, COMMUNITIES AND LOCAL GOVERNMENT
|(1) SAIF CHAUDRY
(2) DR PREM PATHAK
Freddie Humphreys (instructed by GLD) for the Respondent
The Interested Parties did not appear and were not represented
Hearing date: 2 March 2021
Crown Copyright ©
Mr Justice Julian Knowles:
"Without planning permission, the material change of use of a dwellinghouse (Class C3) to form 4 commercial units operating as a travel agent (Class A1), 2 x couriers' offices (Class B1) and therapy/medical treatment room (Class D1)"
"1. Cease the use of the property as 4 commercial units operating as a travel agent (Class A1), 2 x couriers' offices (Class B1) and therapy/medical treatment room (Class D1).
2. Remove from the building all items and paraphernalia associated with the commercial uses.
3. Dismantle and remove from the land all physical manifestations of the uses in the form of signage and advertisements."
"It appears to the Council that the above breach of planning control has occurred within the last ten years.
The Council considers that it is expedient to issue this notice because the unauthorised change of use results in the loss of a family sized dwelling in an area of the city where the Council is seeking to retain and increase the availability of family housing. The uncontrolled and unauthorised uses within the building are considered to have a detrimental impact on the amenity of neighbouring residents due to the increase in comings and goings to and from the premises, and associated noise, disturbance and increase in vehicular and pedestrian traffic.
The development is considered to be contrary to policies SP1, DM1, H5 and C10 of the Core Strategy and contrary to guidance contained in the National Planning Policy Framework."
"Below is a list of the names and addresses of the persons on whom a copy of this enforcement notice has been served:
1. Flywise Travel, Room 1, 3 Grandale Street, Manchester, M14 5WS
2. Sha Post, Room 2, 3 Grandale Street, Manchester, M14 5WS
3. Xpress Cargo Room, Room 3, 3 Grandale Street, Manchester, M14 5WS
4. De-Tox Therapy Practice, Room 4, 3 Grandale Street, Manchester, M14 5WS
5. Dr Prem Lathak, 19 The Avenue, Sale, M33 4PB
6. Prem Lata Pathak, 1 Grandale Street, Manchester, M14 5WS"
The Inspector's decision
"(1) A person having an interest in the land to which an enforcement notice relates or a relevant occupier may appeal to the Secretary of State against the notice, whether or not a copy of it has been served on him.
(2) An appeal may be brought on any of the following grounds -
(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged;
(e) that copies of the enforcement notice were not served as required by section 172;
(f) that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach;
(g) that any period specified in the notice in accordance with section 173(9) falls short of what should reasonably be allowed."
"The Enforcement Notice requires the cessation of the use of the property as 4 commercial units. These units occupy the ground and first floor of the premises.
The premises are currently leased to the operators of the uses alleged in the Enforcement Notice."
a. Firstly, the combination of four separate businesses occupying the Property amounted to an intensive use with noise, waste management, parking and pedestrian traffic implications, which produced an unacceptable impact on the amenity of local residents.
b. Second, the change of use resulted in the loss of a family sized dwelling-house, which is a breach of development plan policies which seek to increase the availability of family sized housing in the centre of Manchester, in particular H5 of the Council's Core Strategy. This provides:
"Central Manchester, over the lifetime of the Core Strategy, will accommodate around 14% of new residential development. Priority will be given to family housing and other high value, high quality development where this can be sustained. High density housing will be permitted within or adjacent to the Regional Centre (Hulme and the Higher Education Precinct) as well as within Hulme, Longsight and Rusholme district centres as part of mixed-use schemes."
"7.2 The property is located on a mixed residential and commercial street close to flats and houses and also close to other unauthorised commercial uses. The change of use to a mixed use consisting of Classes A1, B1 and D1 has introduced an intensive use with noise, waste management, parking and pedestrian traffic implications to the detriment of local residents.
7.9 The loss of a family-sized dwellinghouse and its conversion to a mixed commercial activity is contrary to Council policies …"
"(3) The uses hereby permitted are limited to 1 x Class A1, 2 x Class B1 and 1 x Class D1, as set out within the Town and Country Planning (Use Classes) Order 1987 (as amended) or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order with or without modification).
(4) Notwithstanding the provisions of the Town and Country Planning (General Permitted Development) Order 2015 (as amended) (or any order revoking and re-enacting that Order with or without modification) the only uses permitted within Class A1 are "Travel and Ticket Agencies", within B1 "Offices" and within D1 are "Therapy/Medical Treatment Room" and shall not be used for any other purpose within those respective Classes as set out within the Town and Country Planning (Use Classes) Order 1987 (as amended), or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order with or without modification)."
"1. The appeal is allowed, the enforcement notice is quashed, and planning permission is granted on the application deemed to have been made under section 177(5) of the 1990 Act as amended for the development already carried out, namely the material change of use of a dwellinghouse (Class C3) to form four commercial units operating as a travel agent (Class A1), 2 x couriers' offices (Class B1) and therapy/medical treatment room (Class D1) at land at 3 Grandale Street, Manchester, subject to the following condition:
1. The commercial units hereby permitted shall only operate and deliveries shall only be taken at or despatched from the building between 0900 and 2000 hours Mondays to Saturdays and not at all on Sundays and Bank Holidays."
"The second issue – the amenities of neighbouring residents
11. The only residential use of a neighbouring property is the first floor flat at 1 Grandale Street. Each commercial unit is only likely, given their limited size, to accommodate more than one member of staff and visitors to each unit are likely to be intermittent and limited. The planning permission for the shop at no. 1 is subject to the condition that activities at, and deliveries to, the shop are limited to 0900 to 2000 hours on Mondays to Saturdays, and not at all on Sundays and Bank Holidays. If the commercial uses of the appeal property are limited to similar hours, and given also the nature of the commercial activities at the property, these uses are not likely to generate or cause any significant disturbance for the residents of the first floor flat at no.1. No other matters relating to the commercial uses of the appeal property, such as on-street parking by staff and visitors, would cause any concern for residential amenity. The commercial uses of the appeal property do not conflict with MCS policies SP1 and DM1.
12. The Council has suggested five conditions. A condition requiring the submission and implementation of a scheme for the storage and disposal of waste is unnecessary as there is ample space at the property, both internally and externally, for the storage of waste, and there are refuse bins in the rear alleyway for the disposal of waste. Two conditions that specify and limit the commercial uses of the property are also unnecessary because the planning permission that has been granted specifies these uses."
"13. Conditions limiting operating and delivery hours are necessary but the conditions suggested by the Council are too limited. Taking into account the operating and delivery hours of the ground floor shop at no. 1 and that the shop at no. 5 can stay open until 2100 hours on Mondays to Saturdays and until 2000 hours on Sundays, requiring the cessation of operations at the appeal property at 1730 hours would be unreasonable. The two suggested conditions have been amended to reflect the opening hours of the permitted retail use at no. 1, and have been combined in the interests of brevity, clarity and precision. Conclusion
14. The commercial use of the property does not materially undermine the availability of family housing and does not cause any significant harm to the amenities of neighbouring residents. The ground (a) appeal thus succeeds and planning permission has been granted, subject to a condition, for the material change of use of a dwellinghouse (Class C3) to form four commercial units operating as a travel agent (Class A1), 2 x couriers' offices (Class B1) and therapy/medical treatment room (Class D1) at 3 Grandale Street, Manchester. The ground (f) and (g) appeals by Dr Prem Pathak do not need to be considered."
The issue on the appeal
"5. … The sole ground of challenge is that the Inspector erred in refusing to grant planning permission subject to conditions requested by the Council that would have limited the use of the building to the commercial activities identified in the Notice which is what the Inspector assessed in his Decision.
55. It is submitted that the Inspector erred in refusing to impose the Council's proposed conditions on the basis that 'two conditions that specify and limit the commercial uses of the property are ... unnecessary because the planning permission that has been granted specifies these uses.'"
"Accordingly, the decision is subject to a legal error. Its effect is to permit each of the units in the Building to be used for any purpose within the same Use Class, and to change to a different Use Class if permitted by the [GPD Order]. The Building has not been limited to the particular commercial uses specified within the terms of the deemed planning permission, as the Inspector assumed."
"14. There is a succinct and simple response to the totality of the Claimant's preliminary points. The reason given by the Inspector for not imposing the conditions was: 'Two conditions that specify and limit the commercial uses of the property are also unnecessary because the planning permission that has been granted specifies these uses.' If, as the Defendant contends, the permission granted by the Decision would not allow changes of use to be made by operation of permitted development rights, then the conditions that the Claimant requested [be] imposed were unnecessary. They were unnecessary because the uses specified in the permission are the only ones that can be carried out under the permission because constitute a mixed use of the Property and, as accepted by the Claimant, such a mixed use would not benefit from permitted development rights.
15. The Inspector did not need to say any more than he did to address this simple point.
The Notice was accompanied by a plan identifying the land to which it relates. This identifies the Property surrounded by a single line, there is no delineation of separate units within the Property nor is there, for example, any exclusion of communal areas. Accordingly, in allowing the appeal the Inspector has granted planning permission to use the Property for those uses. In interpreting that permission it is plain from the wording of the permission and the associated plan that the permission does not attach to individual units and is concerned with the Property as a whole. As such it is a permission for a mixed use. As a result of this the Claimant's claim fails as no conditions are necessary to restrict change of use by permitted development on mixed use permissions."
"(1) Subject to the following provisions of this section, in this Act, except where the context otherwise requires, 'development,' means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land."
"(1) Subject to the following provisions of this section, planning permission is required for the carrying out of any development of land."
"(2) The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land -
(f) in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section, the use of the buildings or other land or, subject to the provisions of the order, of any part of the buildings or the other land, for any other purpose of the same class.
Class A1. Shops
Use for all or any of the following purposes -
(a) for the retail sale of goods other than hot food,
(b) as a post office,
(c) for the sale of tickets or as a travel agency,
(d) for the sale of sandwiches or other cold food for consumption off the premises,
(e) for hairdressing,
(f) for the direction of funerals,
(g) for the display of goods for sale,
(h) for the hiring out of domestic or personal goods or articles,
(i) for the reception of goods to be washed, cleaned or repaired,
where the sale, display or service is to visiting members of the public.
Class B1. Business
Use for all or any of the following purposes -
(a) as an office other than a use within class A2 (financial and professional services),
(b) for research and development of products or processes, or
(c) for any industrial process,
being a use which can be carried out in any residential area without detriment to the amenity of that area by reason of noise, vibration, smell, fumes, smoke, soot, ash, dust or grit.
Class C3. Dwellinghouses
Use as a dwellinghouse (whether or not as a sole or main residence) -
(a) by a single person or by people living together as a family, or
(b) by not more than 6 residents living together as a single household (including a household where care is provided for residents).
Class D1. Non-residential institutions
Any use not including a residential use -
(a) for the provision of any medical or health services except the use of premises attached to the residence of the consultant or practitioner,
(b) as a crêche, day nursery or day centre,
(c) for the provision of education,
(d) for the display of works of art (otherwise than for sale or hire),
(e) as a museum,
(f) as a public library or public reading room,
(g) as a public hall or exhibition hall,
(h) for, or in connection with, public worship or religious instruction."
"31. … If the riding centre activities existed, they existed as part of a mixed use across the whole planning unit including the application area – a mixed use consisting of residential, equestrian and agricultural uses or activities. That there was a mixed use was found by Mr. Baldock and was common ground before the present inspector. I accept Mr. Strachan's submission that such a mixed use does not fall within the Use Classes Order and cannot therefore benefit from the exception in s.55(2)(f) …"
"3(1) Subject to the provisions of this Order … planning permission is hereby granted for the classes of development described as permitted development in Schedule 2."
A. Development consisting of a change of use of a building from a use falling within Class A3 (restaurants and cafes), A4 (drinking establishments) or A5 (hot food takeaways) of the Schedule to the Use Classes Order, to a use falling within Class A1 (shops) or Class A2 (financial and professional services) of that Schedule."
"As a general principle, where a local planning authority intend to exclude the operation of the Use Classes Order or the General Development Order, they shall say so by an imposition of a condition in unequivocal terms, for in the absence of such a condition it must be assumed that those orders will have effect by operation of law."
"37. In relation to the interpretation of, specifically, a planning condition which is said to exclude the operation of the GPDO, other authorities are of some assistance. From them, the following themes can be discerned.
(i) It is rightly common ground that a planning condition on a planning consent can exclude the application of the GPDO (see Dunoon Developments v Secretary of State for the Environment and Poole Borough Council (1993) 65 P&CR 101 ('Dunoon Developments')).
(ii) Exclusion may be express or implied. However, because a grant of planning permission for a stated use is a grant of permission for only that use, a grant for a particular use cannot in itself exclude the application of the GPDO. To do that, something more is required (see, eg, Dunoon Developments at  per Sir Donald Nicholls VC).
(iii) In Carpet Décor (Guilford) Limited v Secretary of State for the Environment (1981) 261 EG 56, Sir Douglas Frank QC sitting as a Deputy High Court Judge said that, because in the absence of such a condition the GPDO has effect by operation of law, the condition should be in 'unequivocal terms'. Although 'unequivocal' was used by Mr Katkowski in his written argument, during the course of debate he accepted that that term was now less appropriate, given the modern trend away from myopic focus upon the words without proper reference to their full context. However, he submitted (and I accept) that, to exclude the application of the GPDO, the words used in the relevant condition, taken in their full context, must clearly evince an intention on the part of the local planning authority to make such an exclusion."
The interpretive approach to the Inspector's decision
"40. The guiding principles on the interpretation of planning permissions are clearly established in the relevant case law. The proper interpretation of a planning permission is a matter of law for the court (see the judgment of Keene LJ, with whom Sir Anthony Clarke MR and Toulson LJ agreed, in Barnett v Secretary of State for Communities and Local Government  EWCA Civ 476, at paragraph 28). 41. In Ashford Borough Council, the case to which the inspector referred in paragraph 25 of the decision letter, the court had to construe an outline planning permission. Keene J, as he then was, identified (at pp19 and 20) five 'legal principles applicable to the use of other documents to construe a planning permission'. In summary: first, '[the] general rule is that in construing a planning permission which is clear, unambiguous and valid on its face, regard may only be had to the planning permission itself, including the conditions (if any) on it and the express reasons for those conditions …' (see Slough Borough Council v Secretary of State for the Environment (1985) JPL 1128, and Miller-Mead v Minister of Housing and Local Government  2 QB 196); secondly, it is not appropriate to refer to the planning application itself and 'other extrinsic evidence' unless the application is incorporated into the permission by reference, the reason for this being 'that the public should be able to rely on a document which is plain on its face without having to consider whether there is any discrepancy between the permission and the application' (see Slough Borough Council v Secretary of State, Wilson v West Sussex County Council  2 QB 764, and Slough Estates Ltd v Slough Borough Council  AC 958); thirdly, if the application is to be incorporated into the permission by reference, the words governing the description of the development permitted must make it clear that the application forms part of the permission (see Wilson and Slough Borough Council v Secretary of State); fourthly, '[if] there is an ambiguity in the wording of the permission, it is permissible to look at extrinsic material, including the application, to resolve that ambiguity …' (see Staffordshire Moorlands District Council v Cartwright (1992) JPL 138); and fifthly, '[if] a planning permission is challenged on the ground of absence of authority or mistake, it is permissible to look at extrinsic evidence to resolve that issue …' (see Slough Borough Council v Secretary of State, and Co-operative Retail Services v Taff-Ely Borough Council (1979) 39 P & CR 223 and (1981) 42 P. & C.R. 1)."
The requirement for conditions in the grant of planning permission
"49. In I'm Your Man Ltd v Secretary of State for the Environment (1998) 77 P & CR 251 Robin Purchas QC, sitting as a deputy judge of the Queen's Bench Division, held that a grant of planning permission for use of a warehouse/factory for a temporary period of seven years had granted permanent, not temporary, permission because the limit on the period of the permission should have been expressed by way of condition, not merely in the description of the permission. He concluded, at p257, that the TCPA 1990 did not expressly provide a power for the imposition of limitations on the grant of planning permission. Under the statutory scheme, such limitations could only be imposed by conditions, which could then be enforced.
50. The reasoning in the I'm Your Man case was upheld by the Divisional Court in R (Altunkaynak) v Northamptonshire Magistrates' Court  PTSR D27;  LLR 458 and by the Planning Court in Cotswold Grange Country Park LLP v Secretary of State for Communities and Local Government  JPL 981. Both these cases concerned substantive limitations on the permission granted, not merely temporal ones. In the Altunkaynak case Richards LJ said, at para 39: 'The relevant principle, drawn from the wording of the statute, is a general one: if a limitation is to be imposed on a permission granted pursuant to an application, it has to be done by condition.' In the Cotswold Grange case Hickinbottom LJ cited this passage and said, at para 21, that it 'succinctly and perfectly encapsulates the principle derived from the I'm Your Man case.'"
"26. In this court Mr Reed for the council repeated and developed his arguments in the Court of Appeal. In line with the decision of the High Court in I'm Your Man Ltd v Secretary of State for the Environment  4 PLR 107, he did not seek to argue that the proposed wording could be treated as an enforceable 'limitation'. He accepted the need to establish that the permission was subject to a legally effective condition in that form."
"We may now consider the second 'leg' in the definition of development – namely, 'the making of any material change in the use of any buildings or other land'. The buildings or land under consideration in any given case are often referred to as 'the planning unit'; this is usually the unit of occupation …"
"Similarly, where a motorway services area includes a variety of shops providing a range of facilities for travellers such as eating areas, general shops, and an amusement arcade, each individual shop may constitute a separate planning unit, so that a change of use from any unit to a betting office would involve a change of use and, if material, require planning permission."
"What, then, are the appropriate criteria to determine the planning unit which should be considered in deciding whether there has been a material change of use ? Without presuming to propound exhaustive tests apt to cover every situation, it may be helpful to sketch out some broad categories of distinction.
First, whenever it is possible to recognise a single main purpose of the occupier's use of his land to which secondary activities are incidental or ancillary, the whole unit of occupation should be considered. That proposition emerges clearly from G. Percy Trentham Ltd. v. Gloucestershire County Council  1 WLR 506, where Diplock LJ said, at p513:
"What is the unit which the local authority are entitled to look at and deal with in an enforcement notice for the purpose of determining whether or not there has been a 'material change in the use of any buildings or other land'? As I suggested in the course of the argument, I think for that purpose what the local authority are entitled to look at is the whole of the area which was used for a particular purpose, including any part of that area whose use was incidental to or ancillary to the achievement of that purpose."
But, secondly, it may equally be apt to consider the entire unit of occupation even though the occupier carries on a variety of activities and it is not possible to say that one is incidental or ancillary to another. This is well settled in the case of a composite use where the component activities fluctuate in their intensity from time to time, but the different activities are not confined within separate and physically distinct areas of land.
Thirdly, however, it may frequently occur that within a single unit of occupation two or more physically separate and distinct areas are occupied for substantially different and unrelated purposes. In such a case each area used for a different main purpose (together with its incidental and ancillary activities) ought to be considered as a separate planning unit.
To decide which of these three categories apply to the circumstances of any particular case at any given time may be difficult. Like the question of material change of use, it must be a question of fact and degree. There may indeed be an almost imperceptible change from one category to another Thus, for example, activities initially incidental to the main use of an area of land may grow in scale to a point where they convert the single use to a composite use and produce a material change of use of the whole. Again, activities once properly regarded as incidental to another 1213use or as part of a composite use may be so intensified in scale and physically concentrated in a recognisably separate area that they produce a new planning unit the use of which is materially changed. It may be a useful working rule to assume that the unit of occupation is the appropriate planning unit, unless and until some smaller unit can be recognised as the site of activities which amount in substance to a separate use both physically and functionally."