Reed v The Secretary of State for Communities and Local Government & Anor

Intensification of an existing use can amount to a material change of use only where it materially changes the definable character of the use of the land. A mere increase in numbers is insufficient by itself. A planning inspector must apply that test when deciding whether an enforcement notice alleges a material change of use rather than a breach of condition. The inspector must address the issue where it has been squarely raised. Planning-merits considerations do not replace the distinct question whether the character of the mixed use has materially changed.

The appellant challenged an enforcement notice concerning a mixed equestrian and residential caravan site. The inspector corrected the notice so that it alleged a material change from a mixed use involving one residential caravan to a mixed use involving two residential caravans and associated items.

The inspector concluded that doubling the number of residential caravans amounted to a material change of use. The Administrative Court dismissed the appellant’s appeal under section 289 of the Town and Country Planning Act 1990: [2013] EWHC 787 (Admin). The central issue before the Court of Appeal was whether the inspector had applied the correct test for intensification and had given adequate reasons.

Appeal allowed.

1. The issue had been squarely raised before the inspector. Once the inspector found that the earlier planning permission had been implemented and that there had been no material change from agricultural use, it was necessary to decide whether the alleged breach was a breach of condition or development involving a material change of use. The inspector therefore had to address the issue and direct himself correctly.
2. The applicable test, confirmed in Hertfordshire County Council v the Secretary of State for Communities and Local Government and Another [2012] EWCA Civ 1473, is that intensification can amount to a material change of use only if it produces a material change in the definable character of the use of the land. Mere intensification or an increase in numbers is not enough.
3. The inspector did not expressly find that the character of the mixed equestrian and caravan-site use had changed. His only stated reason was that the number of residential caravans had doubled. That reasoning was consistent with applying the erroneous test that mere intensification amounts to a material change of use.
4. The deputy High Court judge could not cure the defect. The planning-merits considerations, including the larger and more prominent mobile home, fencing, hard standing and lighting, did not answer the separate ground C question. The Hertfordshire decision could not be distinguished merely because it concerned increased scrap-yard throughput rather than an additional caravan on the same caravan site.
5. Conditions regulating occupation, numbers and siting might have been relevant to an alleged breach of condition. They did not determine the allegation actually made, namely a material change of use. The inspector had applied the wrong test, so the appeal was allowed.

1. Court of Appeal (Civil Division) allowed the appeal against the Administrative Court’s order: [2014] EWCA Civ 241.
2. Administrative Court, Queen’s Bench Division dismissed the appellant’s appeal under section 289 of the Town and Country Planning Act 1990: [2013] EWHC 787 (Admin).
3. Planning inspector dismissed the appellant’s appeal against enforcement notice A in a decision letter dated 24 May 2012.