Hilary Jones v Isle of Anglesey County Council

Whether a change of use has occurred is a question of fact and degree. The decision-maker must consider the physical state of the land or building and its actual, intended or attempted use, viewed in the round. Actual use is relevant but is not legally indispensable. Lawful restrictions preventing public access may explain the absence of actual use and remain a relevant consideration.

For a hybrid permission, a condition governing commencement of a full change-of-use permission does not necessarily govern commencement of separate outline development. The natural and ordinary meaning of the conditions, read in context, determines whether failure to comply with one condition affects the other elements of the permission.

The claimant sought judicial review of three decisions by the Isle of Anglesey County Council approving matters under a section 106 agreement relating to a hybrid planning permission for development at the Penrhos Estate, Holyhead.

She argued that the permission had expired because the change of use of the Bailiff’s Tower from cricket clubhouse to visitor information centre had not commenced by 19 April 2021. She also argued that failure to commence that change of use caused the whole permission to lapse and that the Council unlawfully refused to consider enforcement action.

The central issues were whether the change of use had commenced, whether condition 70 affected the outline elements governed by condition 4, and whether the Council’s decisions were unlawful.

1. Ground 1 failed. The Council applied the correct legal approach. Whether use has changed is a question of fact and degree. The decision-maker may consider the physical state of the building, its actual use, and its intended or attempted use, assessed in the round. Actual use is not a necessary legal prerequisite.
2. The Covid-19 restrictions were relevant. They lawfully prevented the public from entering the newly fitted visitor centre before the expiry of condition 70. The absence of actual use therefore did not exclude a finding that the change of use had occurred, particularly where the building had been fitted out and made ready for the new use.
3. The establishment of the visitor centre in one room on the upper floor was capable of constituting a material operation and material development for the purposes of section 56 of the Town and Country Planning Act 1990. The whole building did not need to be converted. The works had been genuinely undertaken to implement the permitted change of use.
4. There was no requirement for the developer to show an intention to continue the development continuously after the material operation. The subsequent closure of the visitor centre did not affect whether the change of use had commenced by the relevant date.
5. Ground 2 failed. The permission was a single grant, but conditions 4 and 70 had distinct fields of operation. Condition 4 governed commencement of the outline development. Condition 70 governed only the full planning permission for the change of use of existing estate buildings. Failure to comply with condition 70 would cause the full change-of-use element to expire, but would not prevent implementation of the outline elements, for which condition 4 had been complied with.
6. Ground 3 failed. In light of those conclusions, the Council was reasonably entitled to refuse to open an enforcement investigation. The claim was dismissed. Permission to appeal was refused.

Permission to apply for judicial review was granted by Eyre J on 27 February 2024 on the grounds pursued before Mould J. Permission was refused on other grounds. The claim was dismissed by the High Court (Administrative Court).