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

By section 57(1) of the Town and Country Planning Act 1990 (“the TCPA”) planning permission is required for the development of land. By virtue of section 55(1) “development” for these purposes includes the making of a material change in the use of any buildings or land. However, by section 55(2)(f) the use of buildings or land for a different purpose within the same use class shall not be taken to involve development.

The different classes of use are set out in the Town and Country Planning (Use Classes Order) 1987 (“the UCO”).

A change of use from one use class to another is not development (and so does not require planning permission) unless it is a material change of use. As Holgate J (as he then was) explained in Ipswich BC v Fairview Hotels (Ipswich) Ltd [2022] EWHC 2868 (KB) at [69] – [71]:

“69.

The making of a change of use of itself does not amount to development. That depends upon whether the change is ‘material’ in terms of planning considerations. Planning considerations are to do with the character of the use of land. … The issue of whether a material change of use takes place is one of fact and degree. But what has to be considered is the character of the use of the land, not the particular purpose of a particular occupier (Westminster City Council v Great Portland Estates plc [1995] AC 661 at 669G). …

70.

The UCO has been made pursuant to s. 55(2)(f) of the TCPA 1990 to exclude from the definition of development, and hence the requirement to obtain planning permission, changes between a use for one purpose and the use for any other purpose within the same Use Class (see also Article 3(1) of the UCO). …

71.

However, it is important to bear in mind that the UCO simply defines certain changes of use so that they are not to be treated as development. The Order does not operate so as to treat a change from a use within a Use Class to another use outside that Class as a material change of use (Rann v Secretary of State for the Environment (1979) 40 P&RC 113). … The UCO cannot be used to treat that change as representing in itself a material change in the use of the land. Whether that is so will depend on a case-specific assessment of the effect of the change on the character of the use of the land, in other words, the planning consequences of the change.”

The UCO was amended by the Town and Country Planning (Use Classes) (Amendment) (Wales) Order 2022. The amendment introduced two new use classes, class C5 and class C6, the effect of that, as Pepperall J explained when giving permission in this case, is that:

“there are now three classes of use for dwellinghouses in Wales:

-

class C3, being dwellinghouses used as a main residence and occupied for more than 183 days in a calendar year;

-

class C5, being dwellinghouses used otherwise than as a sole or main residence and occupied for 183 or fewer days; and

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class C6, being dwellinghouses that are commercially let for short terms not exceeding 31 days.

Put more colloquially, the amended UCO distinguishes between primary residences (C3); second homes (C5); and short-term holiday lets (C6).”

The GPDO sets out those matters of development which are permitted without the need for planning permission.

At the same time as the UCO was amended the GPDO was amended by the Town and Country Planning (General Permitted Development etc)(Amendment)(Wales) Order 2022. By article 3(1) and schedule 2 paragraph 1 this provided that a change between classes C3 and C5 or C6 or to a mixed use combining class C3 use with class C6 or to a mixed use combining class C5 use with class C6 use was permitted development.

Article 4 of the GPDO empowered a local planning authority to remove those permitted development rights in these terms:

“(1)

If the Welsh Ministers or the appropriate local planning authority are satisfied that it is expedient that development described in any Part, Class or paragraph in Schedule 2, other than Class B of Part 22 or Class B of Part 23 should not be carried out unless permission is granted for it on an application, [...] 3 they may give a direction under this paragraph that the permission granted by article 3 shall not apply to—

(a)

all or any development of the Part, Class or paragraph in question in an area specified in the direction; or

(b)

any particular development, falling within that Part, Class or paragraph, which is specified in the direction,

and the direction shall specify that it is made under this paragraph.”

The background to and the purpose of the amendments to the GDPO was explained thus in the Explanatory Memorandum at [4.1] – [4.5]:

“4.1

The Town and Country Planning (Use Classes) (Amendment) (Wales) Order 2022 (“the Use Classes Amendment Order 2022”) amends Part C of the Schedule to the Town and Country Planning (Use Classes) Order 1987 (“the UCO”) by amending use class C3 (dwelling houses) to (dwellinghouses; used as sole or main residences) which limits the use as a dwellinghouse as a sole or main residence, which is occupied for more than 183 days in a calendar year (i.e. “primary homes”). It also introduces two new use classes, use class C5 (Dwellinghouses; used otherwise than as sole or main residences) which covers use as a dwellinghouse other than as a sole or main residence and occupied for 183 days or fewer in a calendar year (i.e. ‘second homes’); and use class C6 (Short-term lets) which covers use of a dwellinghouse for commercial short-term letting not longer than 31 days for each period of occupation. This provides a new legislative framework for managing the use of dwellinghouses in Wales.

4.2

The GPDO Amendment Order 2022 introduces new permitted development rights for changes of use of properties within use class C3 (Dwellinghouses, used as sole or main residences), new use class C5 (Dwellinghouses; used otherwise than as sole or main residences) and new use class C6 (Short-term lets). Specified changes of use to and from a mixed use are also introduced.

4.3

Not every local authority has concentrations of second homes and/or short-term lets, or has concerns with such uses. The amendments to the UCO may therefore create unnecessary resource pressures for many local planning authorities as a result of an expected increase in the volume of planning applications for changes of use, which is out of proportion to the scale of any concerns they have with such uses.

4.4

The GPDO Amendment Order 2022 permits unlimited changes of use between the use classes for a primary home (use class C3), second home (use class C5) or a short-term let (use class C6). Where they have the appropriate evidence, local planning authorities would be able to issue a direction using Article 4 of the GPDO to remove these permitted development rights and may require planning applications (where the local planning authority can show that a material change of use has occurred) for the specified change of use. In all other cases, changes of use would be permitted by the GPDO.

4.5

This approach could enable local planning authorities to put in place local solutions in areas that have concentration of second homes and short-term lets without imposing an unnecessary burden on unaffected areas and property owners. Changes of use between primary homes, second homes and short-term lets can take place freely unless the local planning authority considers such development would pose a real or specific threat to a particular area. In addition, the permitted changes of use ensure properties in use as second homes or short-term lets can return to primary homes for occupation by the local population without impediment, particularly in areas where there are localised housing pressures.”

The making of an article 4 direction, therefore, restores to a local planning authority the control which was removed by article 3(1) and schedule 2 paragraph 1 of the 2022 Amendment Order. It does not bring within the ambit of planning control changes of use which are not development (and so do not need planning permission) because they are not material. Such changes did not require planning permission before the amendment of the UCO or the GPDO. They were unaffected by the amendment of the GDPO and are unaffected by the making of an article 4 direction.

In the context of the change of use of dwelling houses to use as second homes or for holiday lettings the making of the article 4 direction will mean that where such changes amount to material changes of use they will need planning permission. However, where such a change does not amount to a material change then it will not be development and can be made without planning permission regardless of the making of the article 4 direction. In that context it is necessary to have regard to the analysis set out by Sullivan LJ, giving the judgment of the court, in Moore v Secretary of State for Communities and Local Government [2013] JPL 192 at [27] thus:

“Starting from first principles, without the assistance of any authority, whether the use of a dwelling house for commercial letting as holiday accommodation amounts to a material change of use will be a question of fact and degree in each case, and the answer will depend upon the particular characteristics of the use as holiday accommodation. Neither of the two extreme propositions- that using a dwelling house for commercial holiday lettings will always amount to a material change of use, or that use of a dwelling house for commercial holiday lettings can never amount to a change of use-is correct.”

At [33] and [34] Sullivan LJ explained the court’s acceptance of the view that the correct approach was to proceed on the basis that there could be some degree of holiday letting without a change of use from being a main residence and to ask “whether there [is] anything about the particular characteristics of the holiday lettings in the [particular] case which [amounts] to such a change”.