KP JR Management Company Ltd, R (On the Application Of) v London Borough of Richmond Upon Thames (Rev 1)

In a certificate of lawfulness case, the local planning authority must identify the appropriate planning unit as a matter of fact and degree. The starting point is ordinarily the unit of occupation, but a larger or smaller unit may be appropriate having regard to the physical and functional organisation of the activities.

Intensification of an existing use amounts to a material change of use only if it changes the definable character of the use. The decision-maker may consider both what occurs on the land and its off-site effects. A certificate application is not an opportunity to reassess the planning merits of the use. Judicial review is concerned with legal error, irrationality, failure to consider relevant matters or procedural impropriety, not the merits of the planning judgment.

The claimant, a company formed by local residents, brought two linked judicial review claims concerning residential use of boats moored at Kew Marine on the River Thames. The first claim challenged the council’s failure to take enforcement action under section 172 of the Town and Country Planning Act 1990. The second challenged the council’s grant of a certificate of lawfulness of existing use or development under section 191.

The certificate covered a mixed use involving permanently and occasionally residential boats and private leisure craft. The claimant argued that the council had identified the wrong planning unit, applied the wrong test for material change of use, and certified a use unsupported by the evidence. The central issues were whether the certificate was lawful and, if not, whether enforcement action should follow.

1. Outcome. Permission was granted for the second claim, but both judicial review claims were dismissed. The certificate of lawfulness therefore remained in force.
2. Planning unit. Identifying the planning unit is a matter of planning judgment, fact and degree. The usual starting point is the unit of occupation, but a single unit may properly include several activities or occupiers where the activities are physically and functionally organised together. Conversely, separate planning units may exist where physically distinct areas are occupied for substantially different and unrelated purposes. The council was entitled to treat the leased mooring and pontoon area as one planning unit, having regard to the shared facilities, movement of boats and absence of exclusive possession.
3. Material change of use. The ten-year enforcement period for the relevant change of use had expired under section 171B(3) of the Town and Country Planning Act 1990. Under section 191(2)(a), the use was therefore lawful if no enforcement action could be taken. The council also correctly considered whether the additional residential boats introduced between 2009 and 2015 had changed the character of the marina’s use.
4. Intensification may constitute a material change of use, but only where it changes the definable character of the use. The decision-maker must consider the effects of the use on the site and, where relevant, its impact on neighbouring premises and the surrounding area. The council considered matters including visual intrusion, privacy, smoke, sewage and navigation, and was entitled to conclude that the increased residential use had not materially changed the character of the use.
5. The council was not required to reassess the planning merits of the use or treat development-plan policies as determinative in deciding whether the use had changed character. The officer reports, read fairly and as addressed to an informed planning committee, did not materially mislead members. The certified mixed use was supported by the evidence and its degree of particularisation was a matter for the council’s judgment.

First instance decision. The judgment does not state that this decision was appealed.