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

In considering whether to make an article 4 direction a local planning authority had to take account of the purpose of the amendments to the GPDO and of article 4 directions as set out in the Explanatory Memorandum. In addition Appendix D of the DOE Circular 22/88 provided guidance in these terms:

“Article 4(1) and the new article 4(2) of the Permitted Development Order enable local planning authorities to make directions withdrawing permitted development rights given under Schedule 2 to that Order. However, permitted development rights have been endorsed by Parliament and consequently should not be withdrawn locally without compelling reasons. Generally and subject to the guidance in this Appendix, permitted development rights should be withdrawn only in exceptional circumstances. Such action will rarely be justified unless there is a real and specific threat, ie there is reliable evidence to suggest that permitted development is likely to take place which could damage an interest of acknowledged importance and which should therefore be brought within full planning control in the public interest.”

On 28^th September 2022 the Minister for Climate Change wrote to the Heads of Planning of the local planning authorities in Wales in order to introduce the changes being made by the amendments to the UCO and to the GPDO. The minister also drew attention to complementary changes being made in Planning Policy Wales. In relation to article 4 directions the minister said:

“It will be for each local planning authority to decide, based on local circumstances, whether they wish to pursue the possible introduction of an Article 4 Direction to remove the permitted development rights for changes between the new use classes. Any such Article 4 Direction will need to be supported by robust local evidence highlighting the impact of second homes and short-term lets on specific communities as part of a co-ordinated response which applies all available interventions to an area and will need to evidence effective community consultation.”

In addition to that guidance it is to be noted that the making of the article 4 direction would have an impact on the property rights of the owners of dwelling houses in the affected area. As a consequence regard was to be had to their rights under article 1 of the First Protocol of the European Convention on Human Rights. The Defendant had to have regard to the need for any interference with those rights to be proportionate. That question was to be approached by reference to the four-stage test set out by Lord Reed in Bank Mellat v HM Treasury (No 2) [2013] UKSC 39, [2014] AC 700 at [74]. As Lord Reed explained there the decision maker has to consider:

“… (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter… In essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure.”