Wall & Ors v Winchester City Council & Anor

The use permitted by a planning permission is ascertained by interpreting the permission itself. Whether another use would constitute a material change is irrelevant to that interpretative question.

A permission describing land as a site for a functionally distinct class of occupier may authorise that narrower use without an occupancy condition. If the permitted use was implemented and the use later changed, enforcement depends on two factual questions: whether the alleged change occurred and whether it was material. A condition is required to prohibit conduct which remains within the permitted use, but the absence of a condition does not enlarge the use expressly granted.

Planning permission had been granted to change agricultural land into a travelling showpeople's site, without an occupancy condition. The local planning authority later issued six enforcement notices alleging a material change to residential occupation by people who were not travelling showpeople, together with associated structures, vehicles and business materials.

The Inspector allowed the occupiers' appeals under Section 174(2) of the Town and Country Planning Act 1990. He construed the permission as authorising an unrestricted residential caravan site because no condition restricted occupancy.

On the Council's appeal under Section 289, the Deputy High Court Judge reversed that decision in 2013 EWHC 101 (Admin). The occupiers appealed to the Court of Appeal. The central issue was whether the description of the permitted development itself limited the authorised use to a travelling showpeople's site, and how any later occupation by others should be assessed.

1. The appeal was dismissed unanimously. The Deputy High Court Judge correctly held that the permission authorised a change of use to a travelling showpeople's site, which was a distinct and narrower use than a general residential caravan site. The absence of an occupancy condition did not enlarge the use expressly permitted.

2. The scope of a permitted use must be ascertained by interpreting the words of the permission itself. Whether another use would be materially different is irrelevant at that stage. Descriptions such as an agricultural cottage, a caravan site occupied by gypsies, a depot for cattle transport lorries and a travelling showpeople's site may impose functional limits on the use granted.

3. A permission for use A authorises that use and no other. It does not, however, prohibit every different activity. If use A has been implemented, a subsequent use B requires fresh permission only where the change from A to B is material. In the absence of a condition, the relevant questions are whether the alleged change occurred and, if it did, whether it amounted to a material change of use. Both are questions of fact and degree.

4. The Inspector had misunderstood the line of authority beginning with I'm Your Man Ltd v Secretary of State for the Environment [1999] 77 P&CR 251. Those decisions concerned alterations in the manner of carrying on the same permitted use, such as continuing a use after a stated period, reducing the premises used, increasing caravan numbers or changing the sequence of landfill phases. They did not establish that every limitation contained in the description of permitted development must be imposed by condition.

5. The occupiers' appeal under Section 174 of the Town and Country Planning Act 1990 was remitted to a different Inspector. The Inspector must determine whether the permission was implemented through an initial travelling showpeople's use, whether the alleged change occurred and, if so, whether it was material. If it was material, the Inspector must consider whether permission should be granted under ground (a).

McFarlane LJ and Blake J agreed with Sullivan LJ's reasons and disposition.

1. Court of Appeal (Civil Division): The occupiers' appeal was dismissed. The Inspector's decision remained set aside, and the enforcement appeal was remitted for the outstanding factual and planning issues.

2. High Court, Administrative Court: In 2013 EWHC 101 (Admin), Philip Mott QC, sitting as a Deputy High Court Judge, allowed the Council's appeal under Section 289 of the Town and Country Planning Act 1990. He held that the permission authorised the distinct and narrower use of a travelling showpeople's site.

3. Planning Inspector: The Inspector allowed the occupiers' appeals on ground (b) under Section 174(2) and quashed the six enforcement notices. He treated the permission as authorising an unrestricted residential caravan site because no occupancy condition had been imposed.