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

An Article 4 direction removing permitted development rights cannot itself require planning permission for a change of use unless the change is a material change of use. A change between use classes is not automatically material. Whether commercial holiday letting amounts to a material change remains a question of fact and degree. At the permission stage, an arguable misunderstanding of that limitation may justify permission where the error goes to the efficacy of the policy. A direction controlling changes of use may protect housing available for local need, but it cannot itself secure affordable housing in the technical sense.

The claimant sought judicial review of Gwynedd Council’s decision of 16 July 2024 confirming an Article 4 direction under the Town & Country Planning (General Permitted Development) Order 1995. The direction removed permitted development rights for specified changes between primary residences, second homes and short-term holiday lets in Wales.

Five grounds were advanced. They concerned alleged misunderstanding of material change of use, affordable housing, tourism policy, the Welsh language and the requirement for exceptional circumstances before permitted development rights are removed. The issue at this stage was whether permission should be granted to proceed with the judicial review.

1. Ground 1. Permission to apply for judicial review was granted. Under sections 55 and 57 of the Town & Country Planning Act 1990, an Article 4 direction cannot require permission for a change of use unless the change constitutes development, including a material change of use. A change between use classes is not automatically material.
2. The materiality of using a dwellinghouse for commercial holiday letting is a question of fact and degree. Neither an automatic finding of material change nor an automatic finding that there is no change of use is correct. A change from C3 to C5 may also involve only a modest alteration in occupation and may not necessarily be material. The claimant therefore had an arguable case that the cabinet had misunderstood the legal efficacy of the direction.
3. Although the Officer’s Report referred to generally permitted development and development proposals, it was arguable that the cabinet had been misled as to the legal limits of the direction. The alleged error went to the heart of the policy’s efficacy. The court could not conclude at the permission stage that any error would highly likely have made no substantial difference. Consideration of section 31 of the Senior Courts Act 1981 was left to the substantive hearing.
4. Grounds 2–5. Permission was refused. The references to affordable housing were understood as referring to retaining housing available for local need, rather than creating technically secured affordable housing. The council was entitled to consider that the direction might assist housing affordability and the Welsh language. The direction was compatible with relevant tourism policy because it enabled material changes creating additional holiday lets to be subject to planning control. The housing crisis and substantial use of housing for holiday accommodation were capable of amounting to exceptional circumstances.

His Honour Judge Jarman KC refused permission to apply for judicial review on 7 November 2024. On renewal, the High Court granted permission on ground 1 and refused permission on grounds 2–5.