Enlli Angharad Williams, R (on the application of) v Cyngor Gwynedd

An article 4 direction removing permitted development rights does not bring non-material changes of use within planning control. Planning permission remains necessary only where the change is development, including a material change of use.

A decision-making report must explain the nature and practical effect of the proposed direction to its intended readership. Where the extent of control is material to a proportionality assessment, an impression that all changes will be controlled may materially mislead the decision-maker. The high threshold in section 31(2A) of the Senior Courts Act 1981 is not met where the court cannot be highly confident that the decision would have been substantially the same.

The claimant challenged the Defendant’s decision to confirm an article 4 direction removing permitted development rights for changes between use classes C3, C5 and C6, concerning primary residences, second homes and short-term holiday lettings.

She contended that the officers’ report and accompanying papers wrongly conveyed that every such change would require planning permission. The Defendant argued that the papers were adequate and, alternatively, that relief should be refused under section 31(2A) of the Senior Courts Act 1981.

The central issues were whether the Cabinet had been materially misled and, if so, whether it was highly likely that the outcome would not have been substantially different.

1. The claim succeeded. The Cabinet’s decision was reached on a false basis because the officers’ report and accompanying documents materially misled members about the effect of the article 4 direction.
2. The relevant statutory framework distinguished between development and non-material changes of use. A change between use classes C3, C5 and C6 would require planning permission after the direction only if it amounted to a material change of use. Non-material changes remained outside planning control.
3. Whether a change of use is material is a question of fact and degree, assessed by reference to the character and planning consequences of the use. The court applied the approach in Moore v Secretary of State for Communities and Local Government [2013] JPL 192.
4. Reports must be read as a whole and with reasonable benevolence, but they must not significantly or seriously mislead members on a matter bearing on the decision. The readership includes informed local decision-makers, but it could not be assumed that Cabinet members had a working knowledge of the statutory definition of development. The papers therefore needed to explain, at least in broad terms, which changes would and would not be controlled.
5. The documents repeatedly conveyed that all changes would require planning permission. The isolated reference to material change of use in the consultation material did not correct that impression. The scope of control was material to the Cabinet’s assessment of the proportionality of interference with property rights and the effectiveness of the direction.
6. Section 31(2A) did not preclude relief. The court could not be highly confident that the outcome would not have been substantially different had the Cabinet understood that only material changes would be controlled. The claim succeeded, and submissions on the form of relief were adjourned.