RSBS Developments Ltd v Secretary of State for Housing, Communities And Local Government & Anor

Permitted development rights crystallised by prior approval remain subject to the Town and Country Planning (General Permitted Development) (England) Order 2015. Article 3(5) may disapply those rights when unlawful building operations exist immediately before the permitted development is carried out, even if the unlawful works followed prior approval. The provision applies to a change of use connected with an existing building, and its two limbs are not mutually exclusive. Later removal or regularisation of unlawful works may restore the possibility of relying on permitted development rights for future development, but cannot retrospectively legalise a completed change of use. A material change of use must also comply with approved prior-approval details; substantial departures amount to development without planning permission.

The claimant converted former office premises into residential flats under Class O of Part 3 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015. The local planning authority had granted prior approval in August 2015 by reference to layout plans. The claimant subsequently constructed an unauthorised larger extension, incorporated part of it into two flats, and later altered the extension.

An inspector upheld an enforcement notice and dismissed appeals concerning the enforcement notice, a certificate of lawful use and retrospective planning permission. The claimant appealed under section 289 and sought statutory review under section 288 of the Town and Country Planning Act 1990. Permission was granted on the issue whether Article 3(5) could disapply the prior-approval permission after it had crystallised.

1. Both proceedings dismissed. The inspector was entitled to conclude that Article 3(5)(a) applied to the material change of use.
2. Under the statutory scheme, planning permission was granted by Article 3(1) of the GPDO, subject to the provisions of the Order. Prior approval crystallised the permission but did not override the requirement that the completed development comply with the Order.
3. Article 3(5) could operate after prior approval. The word “granted” contemplated permission already granted, and the Order contained no temporal limitation excluding Article 3(5) after prior approval. The definition of “existing” in Article 2(1) referred to the building immediately before the permitted development was carried out.
4. Article 3(5)(a) was engaged because Class O permission was granted in connection with an existing building, even though the development consisted of a change of use. The two limbs of Article 3(5) were not mutually exclusive. Unlawful operations forming part of the building therefore disapplied the permission.
5. Orange PCS was distinguishable. It concerned an unforeseen conservation-area designation outside the developer’s control. Here, the disqualifying unlawful works were the claimant’s own actions and arose from an established statutory restriction.
6. Remedial works could restore permitted development rights for future development once unlawful works were removed or regularised. They could not retrospectively implement the 2015 permission or legalise the material change of use, which had already occurred.
7. The inspector also had an independent basis for dismissing the challenges. The development materially departed from the approved layout plans, contrary to paragraph W(12)(a), and was substantially different from the approved development. It therefore amounted to development without permission. The outcome would have been the same even without Article 3(5).
8. The claimant was ordered to pay the first defendant’s costs, including the costs of the permission hearing.

This was a first-instance decision determining an appeal under section 289 and an application for statutory review under section 288 of the Town and Country Planning Act 1990. Permission had been granted on ground 4 only; grounds 1 to 3 had been refused.