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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Williams, R (On the Application Of) v Cyngor Gwynedd [2025] EWHC 2395 (Admin) (24 September 2025) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2025/2395.html Cite as: [2025] EWHC 2395 (Admin) |
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KING'S BENCH DIVISION
PLANNING COURT
2 Park Street, Cardiff CF10 1ET |
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B e f o r e :
____________________
| THE KING On the application of ENLLI ANGHARAD WILLIAMS |
Claimant |
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| - and - |
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| CYNGOR GWYNEDD |
Defendant |
____________________
JOHN HUNTER (instructed by CYNGOR GWYNEDD) for the Defendant
Hearing date: 23rd June 2025
____________________
Crown Copyright ©
Mr Justice Eyre :
Introduction.
The Legal Background to the Decision.
"69. The making of a change of use of itself does not amount to development. That depends upon whether the change is 'material' in terms of planning considerations. Planning considerations are to do with the character of the use of land. The issue of whether a material change of use takes place is one of fact and degree. But what has to be considered is the character of the use of the land, not the particular purpose of a particular occupier (Westminster City Council v Great Portland Estates plc [1995] AC 661 at 669G).
70. The UCO has been made pursuant to s. 55(2)(f) of the TCPA 1990 to exclude from the definition of development, and hence the requirement to obtain planning permission, changes between a use for one purpose and the use for any other purpose within the same Use Class (see also Article 3(1) of the UCO).
71. However, it is important to bear in mind that the UCO simply defines certain changes of use so that they are not to be treated as development. The Order does not operate so as to treat a change from a use within a Use Class to another use outside that Class as a material change of use (Rann v Secretary of State for the Environment (1979) 40 P&RC 113). The UCO cannot be used to treat that change as representing in itself a material change in the use of the land. Whether that is so will depend on a case-specific assessment of the effect of the change on the character of the use of the land, in other words, the planning consequences of the change."
"there are now three classes of use for dwellinghouses in Wales:
- class C3, being dwellinghouses used as a main residence and occupied for more than 183 days in a calendar year;
- class C5, being dwellinghouses used otherwise than as a sole or main residence and occupied for 183 or fewer days; and
- class C6, being dwellinghouses that are commercially let for short terms not exceeding 31 days.
Put more colloquially, the amended UCO distinguishes between primary residences (C3); second homes (C5); and short-term holiday lets (C6)."
"(1) If the Welsh Ministers or the appropriate local planning authority are satisfied that it is expedient that development described in any Part, Class or paragraph in Schedule 2, other than Class B of Part 22 or Class B of Part 23 should not be carried out unless permission is granted for it on an application, [...] 3 they may give a direction under this paragraph that the permission granted by article 3 shall not apply to
(a) all or any development of the Part, Class or paragraph in question in an area specified in the direction; or
(b) any particular development, falling within that Part, Class or paragraph, which is specified in the direction,
and the direction shall specify that it is made under this paragraph."
"4.1 The Town and Country Planning (Use Classes) (Amendment) (Wales) Order 2022 ("the Use Classes Amendment Order 2022") amends Part C of the Schedule to the Town and Country Planning (Use Classes) Order 1987 ("the UCO") by amending use class C3 (dwelling houses) to (dwellinghouses; used as sole or main residences) which limits the use as a dwellinghouse as a sole or main residence, which is occupied for more than 183 days in a calendar year (i.e. "primary homes"). It also introduces two new use classes, use class C5 (Dwellinghouses; used otherwise than as sole or main residences) which covers use as a dwellinghouse other than as a sole or main residence and occupied for 183 days or fewer in a calendar year (i.e. 'second homes'); and use class C6 (Short-term lets) which covers use of a dwellinghouse for commercial short-term letting not longer than 31 days for each period of occupation. This provides a new legislative framework for managing the use of dwellinghouses in Wales.
4.2 The GPDO Amendment Order 2022 introduces new permitted development rights for changes of use of properties within use class C3 (Dwellinghouses, used as sole or main residences), new use class C5 (Dwellinghouses; used otherwise than as sole or main residences) and new use class C6 (Short-term lets). Specified changes of use to and from a mixed use are also introduced.
4.3 Not every local authority has concentrations of second homes and/or short-term lets, or has concerns with such uses. The amendments to the UCO may therefore create unnecessary resource pressures for many local planning authorities as a result of an expected increase in the volume of planning applications for changes of use, which is out of proportion to the scale of any concerns they have with such uses.
4.4 The GPDO Amendment Order 2022 permits unlimited changes of use between the use classes for a primary home (use class C3), second home (use class C5) or a short-term let (use class C6). Where they have the appropriate evidence, local planning authorities would be able to issue a direction using Article 4 of the GPDO to remove these permitted development rights and may require planning applications (where the local planning authority can show that a material change of use has occurred) for the specified change of use. In all other cases, changes of use would be permitted by the GPDO.
4.5 This approach could enable local planning authorities to put in place local solutions in areas that have concentration of second homes and short-term lets without imposing an unnecessary burden on unaffected areas and property owners. Changes of use between primary homes, second homes and short-term lets can take place freely unless the local planning authority considers such development would pose a real or specific threat to a particular area. In addition, the permitted changes of use ensure properties in use as second homes or short-term lets can return to primary homes for occupation by the local population without impediment, particularly in areas where there are localised housing pressures."
"Starting from first principles, without the assistance of any authority, whether the use of a dwelling house for commercial letting as holiday accommodation amounts to a material change of use will be a question of fact and degree in each case, and the answer will depend upon the particular characteristics of the use as holiday accommodation. Neither of the two extreme propositions- that using a dwelling house for commercial holiday lettings will always amount to a material change of use, or that use of a dwelling house for commercial holiday lettings can never amount to a change of use-is correct."
The Approach to be taken to Article 4 Directions.
"Article 4(1) and the new article 4(2) of the Permitted Development Order enable local planning authorities to make directions withdrawing permitted development rights given under Schedule 2 to that Order. However, permitted development rights have been endorsed by Parliament and consequently should not be withdrawn locally without compelling reasons. Generally and subject to the guidance in this Appendix, permitted development rights should be withdrawn only in exceptional circumstances. Such action will rarely be justified unless there is a real and specific threat, ie there is reliable evidence to suggest that permitted development is likely to take place which could damage an interest of acknowledged importance and which should therefore be brought within full planning control in the public interest."
"It will be for each local planning authority to decide, based on local circumstances, whether they wish to pursue the possible introduction of an Article 4 Direction to remove the permitted development rights for changes between the new use classes. Any such Article 4 Direction will need to be supported by robust local evidence highlighting the impact of second homes and short-term lets on specific communities as part of a co-ordinated response which applies all available interventions to an area and will need to evidence effective community consultation."
" (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter In essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure."
The Background to the Decision and the Material before the Cabinet.
"If the Article 4 Direction is confirmed, and you own a residential dwelling (which is a main home) within the Gwynedd Local Planning Authority Area and wish to change the use to a second home, short term holiday let or specific mixed use, you will be required to obtain planning permission from Cyngor Gwynedd Local Planning Authority before undertaking the change of use." (original emphasis)
i) At [1.5] and [1.6] it said:
"1.5 If deemed appropriate, in order to restrict and gain control of the unrestricted change of use between the new use classes, the Local Planning Authority has the power to introduce what is called an Article 4 Direction for a specific area. An Article 4 Direction (depending on its content and scope) would remove the rights to switch between the use classes without planning permission. An Article 4 Direction can be implemented for the whole Local Planning Authority Area, provided it can be evidenced that there are exceptional circumstances that justify it and that the process of presenting and receiving approval to the proposal has followed the correct procedures. Those procedures are set out in the relevant legislation.
1.6 It is emphasised that making an Article 4 Direction does not prevent development but rather, it means that planning permission must be sought from the Local Planning Authority for the proposal. Enforcing the requirement to obtain planning permission, means that the impacts of the development must be considered in accordance with the local and national planning policy context".
ii) At [4.5] the report said:
"The Assessment highlights that it is difficult to predict the impact of implementing the Article 4 Direction as taking this form of action is unprecedented. However, it is noted that the social inequality that currently exists in some communities in light of the lack of affordable housing along with house prices that are beyond the reach of Gwynedd residents is creating an unsustainable divided society. In an effort to seek to overturn the current situation it is hoped that introducing the Article 4 Direction, will provide an opportunity to assess the propriety of any proposal that involves changing the use of a residential home to holiday use, be that use as a holiday let or a second home. "
i) In the Defendant's response to the theme 2 concern that the direction was unjust as placing additional restrictions on the use of people's homes it was explained that the purpose of the direction was to remove the permitted development rights given by the amendments to the GPDO and "to ensure that planning consent is required in order to undertake some specific change of use developments". It was said that this would "ensure better control of the housing stock".
ii) A similar point was made in the Defendant's response to the theme 3 concern that the proposal was the wrong response to the housing crisis. There it was said that "the ability to freely transfer between uses means that there is no effective control over the existing housing stock" and that it was "considered that a mechanism must be implemented to provide better control over the existing housing stock".
iii) Theme 7 addressed the concern that the direction was an unwarranted interference with the human rights of home owners. In the Defendant's response it was acknowledged that the direction amounted to an interference with the Article 1 Protocol 1 rights of home owners. However, it was said that the Defendant believed that the interference was proportionate and justified in light of the "overall interest of the people of Gwynedd". The response then made a similar point to that made in respect of theme 3 to the effect that "it would still be possible to apply for planning permission as a second home or holiday let".
iv) Theme 9 addressed concerns which had been expressed about the effect on those who inherited properties in Gwynedd. The Defendant's response was that any existing use could continue but that if those inheriting a residential property wished "to use [it] for an alternative use ie use as a second home (C5 use) or let it as short-term holiday accommodation (C6 use) then planning consent must be obtained for that use".
v) Theme 11 addressed the concerns which had been raised about the difficulty in obtaining mortgages. Concerns were also raised included the impact on property values and the rights of property owners. There was concern that there would be a fall in the value of properties with the risk for some of falling into negative equity. This was connected with the concern that it would be harder to obtain mortgages on properties in Gwynedd. The Claimant sets out her particular concerns about the effect of this but it is apparent from the summary of the responses to the engagement exercise that she is not alone in having such concerns. The Defendant's response to this appears recorded that the same concern did not appear to have been raised in other local authority areas where interventions of various kinds had been made. However, the response records a professional opinion the Defendant had obtained from a local mortgage provider which was supportive of the view that the direction would mean that it would be more difficult to obtain mortgages. The response then noted that "no tangible evidence was provided to support" that professional opinion.
vi) Theme 13 addressed a concern that the introduction of the direction would punish local people while having no impact on existing second home owners. The Defendant's response began by saying:
"The Article 4 Direction does not discriminate between different groups of people (e.g. local, visitors). It will be implemented fairly and consistently amongst everyone who owns properties in classes C3, C5 or C6. Its purpose is to remove specific aspects of the permitted development rights for these particular use classes, ensuring that everyone will be required to apply for planning permission."
vii) Theme 34 addressed concerns that flexibility was required with and that a different approach should be taken in relation to local people or those who were Welsh-speaking. The Defendant's response explained that it was not possible to implement the article 4 direction such as to take a different approach to those with local connexions from that which was applied to others. It then said:
"The need to obtain planning consent to change the use of a residential house to a second home, holiday accommodation or relevant mixed uses will be based on concluding that the proposed use leads to a change of material use. Each case will be treated individually and, as a result, it is not possible to provide a definite response in terms of when change of use is tantamount to being a change of material use."
Although the reference there was to "a change of material use" rather than to "a material change of use" Mr Hunter explained, on instructions, that this was the result of an error in translation from the Welsh version of the document. The Welsh version used the Welsh terms for "a material change of use" and it was the Welsh version of the document which was sent to and used by the members of the Cabinet. I will proceed on that basis.
" mean that it is possible to change from the use classes referred to above without restriction, that is without having to receive planning permission. For example, it is not be necessary to receive planning permission to change from being a dwelling house (main home) to being a dwelling house (secondary home) and vice versa."
" there will be a need to obtain planning permission to change the use of a residential home that is a main residence (C3 use) to a second home (C5 use) or holiday accommodation (C6 use)."
Discussion and Analysis.
The Application of Section 31(2A) of the Senior Courts Act 1981.
"In relation to section 31(2A), the court is concerned with evaluating the significance of the error on the decision-making process. It is considering the decision that the public body has reached, and assessing the impact of the error on that decision in order to ascertain if it is highly likely that the outcome (the decision) would not have been substantially different even if the decision-maker had not made that error. It is not for the court to try and predict what the public authority might have done if it had not made the error. If the court cannot tell how the decision-maker would have approached matters, or what decision it would have reached, if it had not made the error in question, the requirements of section 31(2A) are unlikely to be satisfied."
"The section emphatically does not require the court to embark on an exercise where the error is left out of account and the court tries to predict what the public body would have done if the error had not been made. Approaching section 31(2A) in that way would run the risk of the court forming a view on the merits and deciding if it thinks the public body would reach that view if it had not made the error. Rather, the focus should be on the impact of the error on the decision-making process that the decision-maker undertook to ascertain whether it is highly likely that the decision that the public body took would not have been substantially different if the error had not occurred."
Conclusion.