Secretary of State for Transport, Local Government and the Regions v Waltham Forest London Borough Council

On an application for a certificate of lawfulness, the proposed use must be compared with the actual existing or last use of the land or building. A hypothetical use which could lawfully have been introduced without planning permission is not an intermediate benchmark for that exercise.

The fact that a proposed use could be reached through a series of individually non-material changes does not establish that the direct change is non-material. Whether a change is material remains a question of fact and degree, assessed by comparing the existing use with the proposed use.

The respondent authority refused an application under Town and Country Planning Act 1992, section 192, for a certificate that use of a dwelling by six persons recovering from mental ill health, with carers, would be lawful.

An inspector allowed the appeal. He accepted that the proposed use was outside Class C3 because the carers brought the number of residents above six. He nevertheless found that the change from use by a large family to the proposed use would not materially alter the character and nature of the dwellinghouse use.

Sullivan J, on a challenge under section 288, quashed the certificate. The Secretary of State appealed. The central issue was whether the inspector could compare the proposal with a notional large-family use which could lawfully have occurred, rather than with the premises’ actual existing or last use.

1. Appeal dismissed. The court held that Sullivan J had correctly quashed the certificate. Schiemann LJ delivered the judgment of the court, with Tuckey and Jonathan Parker LJJ sitting.

2. For section 192, “lawful” means lawful under the planning legislation. The question is whether an ungranted planning permission is required for the proposed change of use. In a case of this kind, materiality requires a comparison between the actual present use and the proposed use.

3. The inspector wrongly inserted a notional use by a large family as the starting point. The facts that the existing use could lawfully have been changed to that notional use, and that the notional use could then have been changed to the proposed use without permission, might be relevant to an application for planning permission. They were not relevant to the statutory exercise under section 192.

4. The court rejected the suggested two-step principle. A sequence of gradual, individually non-material intensifications of use may culminate in a material difference between the original and proposed uses. The direct change must therefore be assessed on its own comparison.

5. Panton v Farmer & SSETR [1999] JPL 461, concerning a dormant but subsisting lawful use, did not assist. The court agreed with its conclusion on previously acquired immunity, but held that it was irrelevant to the present section 192 issue.

6. Section 3 of the Human Rights Act 1998 and Article 1 of the First Protocol did not require a different construction. Even assuming an interference with possessions, requiring planning permission for a material change of use was manifestly proportionate to the legitimate planning aim.

• Court of Appeal (Civil Division) — dismissed the Secretary of State’s appeal and upheld the quashing of the certificate: [2002] EWCA Civ 330.
• High Court (Administrative Court) — Sullivan J allowed the local planning authority’s challenge under section 288 of the Town and Country Planning Act 1992 and quashed the inspector’s certificate. The citation is not stated in the judgment.