Material Change of Use:
A workshop
Cain Ormondroyd, Barrister
Francis Taylor Building
Topics to cover
• Defining uses and intensification
• Changes of use and the planning unit
• Changes of use in the Green Belt
Defining uses and intensification
• Focus on sui generis/mixed uses
• No statutory provision
• Refer to caselaw and guidance
Circular 10/97, Annexe 8
“precise details of what use [is] found to be
lawful, why, and when”
“more than simply a title or label”
“state the characteristics of the matter so
as to define it unambiguously”
TASK 1
Consider and discuss possible details that could be
included in the description of a use.
‘Characteristics’ – some suggestions
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•
•
•
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Amount of material stored/processed
Nature of material stored/processed
Dates and times when use is active
Number of employees
Number and size of caravans
When is a change material?
“the legislation is designed to regulate
questions of the human environment and
not questions of physics. One must look at
the question… from the point of view of
human beings likely to be affected”
Schieman LJ in Thames Heliports v LB Tower Hamlets
(1997) 74 P. & C.R. 164
When is a change material?
• Offsite impacts are relevant and must be
considered: Forest of Dean DC v SSE [1995] JPL
937
• But cannot give rise to a material change of
use in and of themselves: Hertfordshire CC v
SSCLG [2012] EWHC 277 (Admin)
When is a change material?
• A change of use by pure intensification is
definitely possible: Fidler v FSS [2004] EWCA Civ
1295
• But very rare!
TASK 2
Discuss recent cases from your experience where
intensification has been alleged/considered.
What other changes were involved?
Intensification – other changes
• Ancillary use to mixed use
• Expansion of area used
• Nature of use (e.g. objects stored)
The planning unit
3 familiar scenarios (Burdle v SSE [1972] 3 All ER):
• Single use of land occupied – one unit.
• Mixed use of land occupied – one unit.
• “Physically separate and distinct” areas
used for “substantially different and
unrelated purposes” – multiple units.
The planning unit
…And a fourth:
• Land in multiple occupations used for single
main purpose or mixed purpose
Changes in the planning unit
• Subdivision – when does it cause a material
change of use?
• New planning unit and the loss of existing
use rights
TASK 3
Discuss examples where subdivision of the planning
unit would or might lead to a material change of use.
Subdivision → material change
• Mixed use or primary/ancillary uses split
into two separate uses
• Residential subdivisions: s55(3)(a), TCPA 1990
• Activity unevenly distributed such that new
planning unit is more intensively used?
Loss of lawful use rights
• Planning permission → new planning unit
→ new chapter in planning history →
lawful use rights lost (e.g. building)
• Also (more rarely) material changes of use:
Newbury District Council v SSE [1981] AC 578
• If no planning permission? Dover DC v SSE
[1991] 1 PLR 48
Change of use in the Green Belt
“the making of material changes in the use of
land are inappropriate development unless
they maintain openness and do not conflict
with the purposes of including land in the
Green Belt”
REPEALED PPG2, para 3.12
Change of use in the Green Belt
“Certain other forms of development are also
not inappropriate in Green Belt provided
they preserve the openness of the Green
Belt and do not conflict with the purposes
of including land in Green Belt. These are…”
NPPF, para 90
Change of use in the Green Belt
Fordent v SSCLG [2013] EWHC 2844 (Admin)
• Change of use is inappropriate (unless
within NPPF90, e.g. mineral extraction)
• No absurdity because preservation of
openness/conflict with purposes is to be
judged in the case of buildings “in the light
of the nature of the… development”.
Change of use in the Green Belt
Further cases in the pipeline:
• Fall and Regalworld v SSCLG
• Heart of England v SSCLG