Eastleigh Borough Council, R (on the application of) v First Secretary of State & Anor

Where a use falls within a Use Class, intensification of that use does not constitute enforceable development if the use remains within the same class. This applies even where the intensification would otherwise amount to a material change of use. The relevant question is whether the primary use has changed, not whether the scale or capacity of that use has increased. Planning merits do not determine an application for a lawful development certificate, although the effects of the proposed use may be relevant to whether a material change has occurred. Planning authorities can control the scale of a use through appropriate planning conditions.

Asda Stores proposed to construct a mezzanine floor within an existing superstore and use it for additional retail sales. Eastleigh Borough Council considered that the substantial increase in sales space would materially change the use of the premises and conflict with current planning policies.

The Secretary of State’s inspector granted a lawful development certificate under section 192 of the Town and Country Planning Act 1990. The Council sought judicial review, arguing that the proposal involved a material change of use and that the decision failed to consider its effects on the town centre and traffic. The central issue was whether intensification of an existing Class A1 shop use could be treated as development where the use remained within the same Use Class.

1. Claim dismissed. The inspector was entitled to conclude that the proposed mezzanine sales area was lawful, and the Secretary of State had correctly granted the certificate under section 192 of the Town and Country Planning Act 1990.
2. The construction of the mezzanine itself was excluded from development by section 55(2)(a) of the Act because it affected only the interior of the building. The question was therefore whether its proposed retail use constituted a material change of use.
3. The Court of Appeal’s decision in Brookes and Burton Ltd v Secretary of State for the Environment [1978] 1 AER 733 governed the issue. Once a use falls within a Use Class, the carrying out of activities which remain within that class does not amount to unlawful development, even though the activities involve intensification or new processes.
4. The controlling consideration is the primary purpose of the use. The existing premises were used as a shop within Class A1. The proposed expansion would produce a greater amount or higher level of the same use. It therefore remained within the protection of section 55(2)(f) and paragraph 3(1) of the Town and Country Planning (Use Classes) Order 1987.
5. Intensification can ordinarily amount to a material change of use, depending on its degree. That principle does not assist enforcement where the intensified use remains within the relevant Use Class. The reasoning in Emma Hotels v Secretary of State for the Environment [1979] JPL 390 supported that conclusion.
6. Planning merits were not themselves relevant to the legal question under section 192. The effects of the proposal, including effects on traffic and the town centre, could be relevant to whether a materially different situation had arisen. However, that issue was immaterial because the Use Classes protection applied whether or not a material change had occurred. The approach was consistent with Wilson v West Sussex County Council [1963] 2 QB 764.
7. Earlier permissions’ references to particular floor areas were not planning conditions and did not alter the character of the existing shop use. The judge observed that the planning authority could have controlled the sales area by imposing an appropriate condition.

The Council’s application for permission to appeal was refused. Costs of £3,620 were awarded to the First Secretary of State, with the position concerning the second defendant not opposed.

The judgment was a first-instance judicial review of an inspector’s decision granting Asda Stores a lawful development certificate under section 192 of the Town and Country Planning Act 1990. Permission to appeal was refused.