Barton Park Estates Ltd. v The Secretary of State for Housing, Communities and Local Government & Anor.

A planning permission must be construed objectively as a whole. The grant, conditions and reasons for the conditions together establish the scope of the authorised use. The absence of a condition restricting an activity does not enlarge the use described in the grant.

A proposed use outside that scope requires planning permission if, as a matter of fact and degree, it would materially change the character of the existing use. A use may remain within the same generic category, and an intensification may involve no new type of activity, yet still materially change its character. The decision-maker’s evaluative conclusion is reviewable only on Wednesbury grounds.

Barton Park Estates Ltd applied under section 192 of the Town and Country Planning Act 1990 for a certificate permitting up to 80 caravans for human habitation at a site in Dartmoor National Park. An inspector dismissed its section 195 appeal against the authority’s refusal.

The site was governed by a 1987 permission describing a mix of residential caravans, holiday chalets, static caravans and touring units. Conditions restricted the periods during which most holiday accommodation could be occupied. A 2013 permission varied one temporal restriction on parts of the site.

His Honour Judge Jarman Q.C. dismissed a statutory challenge under section 288: [2021] EWHC 1200 (Admin). The issues on the further appeal were whether the proposed use fell outside the permissions and whether the inspector could find that it would materially change the character of the use.

1. Appeal dismissed. The inspector correctly construed the permissions and was entitled to find that the proposed use required planning permission. The certificate of lawful proposed use was therefore properly refused.

2. A planning permission is construed objectively as a whole. Its grant, conditions and the reasons for those conditions must be read together. The court decides as a matter of law whether a use is capable of falling within the permission. Whether it truly does so is a matter of fact and judgment for the decision-maker.

3. The 1987 permission authorised a deliberately specified mix of permanent residential and holiday accommodation. Conditions (e) and (f) corresponded with that mix and prevented year-round occupation of most units. The general statutory definition of a caravan did not erase the functional distinctions made by the permission. Nor did the absence of a condition expressly limiting the number of residential caravans transform the grant into permission for an unrestricted residential caravan site.

4. The authorities stemming from I’m Your Man did not establish that the description of an authorised use may be disregarded unless repeated in a condition. As explained in Winchester City Council, those authorities concerned circumstances in which the use remained the same. Where the implemented use changes, the decision-maker must ask whether the change is material.

5. A material change of use depends on whether the character of the use has changed. That is a question of fact and degree. The same generic type of use may acquire a materially different character, and one component of a mixed use may produce such a change by absorbing the site to the exclusion of another component.

6. The inspector permissibly found a substantial and fundamental change. Seasonal holiday occupation would be replaced by extensive year-round residential activity, with consequential changes in lighting, domestic presence, movements and visual character. Her planning judgment was not Wednesbury unreasonable.

7. Males L.J. expressed reservations about treating a numerical restriction in the description of development as legally ineffective without a condition. He nevertheless accepted the binding authorities and agreed that the proposed use was outside the permission and would materially change the use. Lewis L.J. agreed with the Senior President’s reasons.

1. Court of Appeal (Civil Division): The appeal was dismissed by [2022] EWCA Civ 833. The inspector’s construction of the permissions and her finding of a material change of use were upheld.

2. High Court, Administrative Court (Planning Court): His Honour Judge Jarman Q.C., sitting as a deputy High Court judge, dismissed the section 288 challenge in [2021] EWHC 1200 (Admin).

3. Planning inspector: The inspector dismissed the section 195 appeal against the refusal of a certificate under section 192 of the Town and Country Planning Act 1990.