The London Borough of Bromley v Secretary of State for Communities and Local Government & Anor

The closed exceptions in paragraph 89 of the National Planning Policy Framework concern new buildings, but they are not confined to applications involving operational development alone. Permission for new buildings necessarily carries permission for their use under section 75 of the Town and Country Planning Act 1990. A material change of use associated with new buildings may therefore fall within an exception, provided the buildings satisfy the particular use and other restrictions in that exception. This does not create a general category of appropriate material change of use. The policy must be interpreted objectively, according to its language and context, while its application to the facts remains for the planning decision-maker.

The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash an Inspector’s decision allowing an appeal against refusal of planning permission. The proposal involved redevelopment of previously developed land, including nine mews houses, a livery business, a barn and workers’ dwellings.

The Inspector treated the proposal as appropriate development under the sixth exception in paragraph 89 of the National Planning Policy Framework. The central issue was whether that exception was unavailable because permission for the buildings also involved a material change of use, or because the relevant use was not expressly specified in the exception.

1. The claim was dismissed. The Inspector had not erred in law by treating the proposal as appropriate development in the Green Belt.
2. The categories of appropriate development in paragraphs 89 and 90 of the National Planning Policy Framework are closed. R (Timmins) v Gedling Borough Council established that there is no freestanding category of appropriate development consisting of a material change of use which preserves openness and does not conflict with Green Belt purposes.
3. That reasoning did not prevent a material change of use associated with new buildings falling within an express paragraph 89 exception. Section 75 of the Town and Country Planning Act 1990 means that permission for new buildings necessarily carries permission for their use. Paragraph 89 must therefore be read in that statutory context.
4. The six exceptions impose different restrictions. Some specify use, such as buildings for agriculture or forestry and buildings for outdoor sport, recreation or cemeteries. Others regulate size, limitation, location or impact on openness and Green Belt purposes. Only the replacement-building exception expressly requires the new building to remain in the same use.
5. The sixth exception could therefore include buildings associated with a material change of use, provided the buildings were within previously developed land and did not have a greater impact on openness or the purposes of including land in the Green Belt than the existing development. The Inspector’s application of those planning judgments was not challenged.
6. The court rejected the proposed consultation paper as an aid to interpretation because it was not Government policy and post-dated the NPPF by more than three years. Permission to appeal was refused. The claimant was ordered to pay the Secretary of State’s agreed costs of £8,582; the second defendant’s separate costs application was refused.

First-instance judicial review proceedings under section 288 of the Town and Country Planning Act 1990. The judgment states that the claimant was refused permission to appeal and would have to apply directly to the Court of Appeal.