Harrods Limited v Secretary of State for the Environment & Anor

Whether a secondary activity forms part of an established use is ultimately governed by the statutory question whether its introduction effects a material change of use. Judicial expressions such as “ordinarily incidental” assist the analysis but cannot replace the statutory formula.

The assessment is generally made by reference to activities ordinarily associated with the relevant use class, rather than the particular occupier’s preferences or requirements. A novel activity is not automatically excluded, but if it falls outside the ordinary ancillary use, planning permission is required. The approach balances landowners’ flexibility with neighbours’ entitlement to scrutiny of activities likely to affect them.

Harrods proposed using the roof of its department store for weekday helicopter landings and take-offs by its chairman. The local planning authority considered that the proposal required planning permission. On appeal, the Inspector concluded that the use was ancillary to the retail use, but the Secretary of State disagreed and dismissed the appeal.

Sullivan J, sitting in the Administrative Court, upheld the Secretary of State’s decision. Harrods appealed to the Court of Appeal, arguing that the helicopter facility was functionally connected with, and incidental to, the particular retail premises. The central issue was whether the Secretary of State had erred in law in concluding that the proposal involved a material change of use.

1. The appeal was dismissed unanimously. Schiemann LJ delivered the principal judgment, with Sedley LJ and Charles J agreeing. The Secretary of State was entitled to conclude that introducing a helicopter facility changed the use of the store from retail use to retail use plus helicopter use, and that the change was material.
2. The proper starting point is section 55 of the Town and Country Planning Act 1990. The statutory question is whether the proposed activity amounts to a material change of use. Expressions developed in the authorities, including “incidental”, “ancillary” and “ordinarily incidental”, are aids to analysis and must not be substituted for the statutory test.
3. In deciding whether an activity is ordinarily incidental to a use, the relevant comparison is with the ordinary operation of the relevant use generally, having regard to the characteristics of the planning unit. The inquiry should not be restricted to what is incidental to the particular shop as operated according to its owner’s special requirements.
4. The Secretary of State was entitled to consider whether the proposal would constitute a material change of use without relying on the Town and Country Planning (Use Classes) Order 1987, and then to consider whether the Order altered that conclusion. Regulation 3 did not require the proposal to be treated as part of the established shop use.
5. The fact that a secondary activity is novel does not by itself prevent it being ancillary. However, an activity not generally associated with the relevant use may properly require planning permission. That requirement does not prohibit the activity; it preserves the opportunity for neighbours and the public interest to be considered through the planning process.
6. Sedley LJ emphasised that the legally useful question was what activities legitimately formed part of the extant shop use, not the semantic meaning of “ordinarily”. The order was: appeal dismissed; Harrods to pay the Secretary of State’s costs; permission to appeal to the House of Lords refused.

• Administrative Court: Sullivan J upheld the Secretary of State’s decision that the proposed helicopter use required planning permission.
• Court of Appeal (Civil Division): The appeal was dismissed. Permission to appeal to the House of Lords was refused.