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Court of Appeal says "I'm Your Man"but only where there is no alleged change of use

Background

Local planning authorities may take enforcement action where development appears to have taken place without planning permission or where conditions attached to a planning permission have not been complied with. 'Development' is defined in section 55 of the Town and Country Planning Act as " the carrying out of building, engineering, mining or other operations… or the making of any material change in the use of any buildings or other land."

The I'm Your Man case (I'm Your Man Ltd v Secretary of State for the Environment, Transport and the Regions) established the principle that where planning permission is granted for a certain use, any limitation on the way that use is exercised must be imposed by express condition, not just in the description of the development.

The background to this case was that planning permission had been granted in 1995 for "additional use of warehouse/factory for sales, exhibitions and leisure activities for a temporary period of seven years [...]… in accordance with the terms of the application." However, no condition was imposed by the local authority requiring the planning permission to be brought to an end after the seven years.

In 1997 the owner then applied for permanent use of the premises for the same purposes. The Court of Appeal allowed the application as any limitation should have been imposed by express condition, not merely in the description of the development. Additionally, the court held that the change from a seven year use to a permanent use was not sufficient to amount to a 'material change of use. '

The principles laid down in I'm Your Man have now recently been examined in Winchester City Council v Secretary of State for Communities and Local Government and others [2015] EWCA Civ 563.

The Winchester Case

The background to the Winchester case is that in October 2003 planning permission was granted for the "change of use of agricultural land to travelling showpeoples' site" at the site by Winchester City Council. This permission did not contain a condition prohibiting occupation by people who were not travelling showpeople.

In 2010, the Council served 6 enforcement notices, the alleged breach of planning control being:

"…the material change of use of the Land from use as a Travelling Showperson's site to a use for siting of caravans/residential mobile homes for occupation by persons who are not Travelling Showpersons."

On appeal, the appellant occupiers of the site sought to rely on the I'm Your Man principle, arguing that the planning permission was granted as a residential caravan site with no express condition limiting who might use it. 

The Court of Appeal disagreed with this interpretation. It held that I'm Your Man was relevant where the use of the site remained the same not, as in this case, where there was an alleged change of use.  The limitation related to the manner in which the use could be exercised, not as to the extent of the use itself.

The Court went on to say that where a material change of use was alleged in an enforcement notice, in the absence of any condition limiting the use of the relevant land, the question for a planning inspector, is whether an alleged change of use has taken place and, if so, is it a material change of use for planning purposes. Where there has been a material change of use, there will have been development and planning permission will be required. 

Comment

This Court of Appeal has helped clarify the parameters of the I'm Your Man principle, which is concerned with restrictions on the manner in which the same use is exercised, not a change of use. This case also serves as a reminder that in granting planning permissions, local authorities should ask whether the conditions attached appropriately restrict the use (ignoring the development description) and whether they adequately reflect the permitted use being granted.