AC-2024-CDF-000147 - [2025] EWHC 2395 (Admin)

By its decision of 16^th July 2024 (“the Decision”) the cabinet of the Defendant confirmed the deferred decision made a year previously making a direction pursuant to article 4 of the Town and Country Planning (General Permitted Development) Order 1995 (“the GPDO”). The Claimant challenges the Decision pursuant to permission given by Pepperall J on the sole ground that in making Decision the Defendant did so on a mistaken basis.

The effect of the Decision was to remove permitted development rights which otherwise provided that a change of use between class C3 (primary residences) and C5 (second homes) or C6 (short-term holiday lettings) or a mix of those uses was permitted development. As a consequence changes between those classes which was otherwise development, as a consequence of being a material change of use, would require planning permission. The Decision does not alter the position that changes which are not otherwise development do not need planning permission. Therefore, a change of use between those classes which is not a material change of use does not need planning permission regardless of the Decision.

The Claimant challenges the Decision on one ground. She contends that the members of the Cabinet were misled by the Officers’ Report in material respects. They were, she claims, led to believe that the effect of approving the article 4 direction would be that all changes from primary residence to second home or to short-term letting or to mix of those uses would require planning permission. The members of the Cabinet were not alerted to the fact that such of those changes which did not amount to material changes of use would remain outside the Defendant’s control. The extent of the control given by the article 4 direction was, the Claimant says, a material consideration. She says that as a consequence the members were misled in a material respect and failed to take account of a material consideration.

The Defendant says that when read properly the Officers’ Report and the accompanying papers adequately informed the members of the Cabinet of the effect of the article 4 direction. It was clear that not all changes of use would be brought under the Defendant’s control and that the effect would solely be the removal of permitted development rights. Alternatively, the Defendant says that this is a case where the court can be confident that the same decision would have been made even if the limited effect of the article 4 direction had been spelt out. As a consequence section 31(2A) of the Senior Courts Act 1981 requires that relief be refused.

The crucial question is that of the proper reading of the Officers’ Report and the accompanying material. The answer to that will determine whether the Cabinet proceeded on a false basis. Depending on the answer to that it may then be necessary to consider the operation of section 31(2A).