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17th July 2020

Change of use planning applications: are objects and structures enabled by the new use relevant?

The High Court has recently clarified that merely because a planning application seeks permission for a change of use, the planning authority is not precluded from exercising planning control in deciding the application in relation to the design or appearance of structures or objects the siting (and retention) of which will be authorised by the permission.
In Shave, R (On the Application Of) v Maidstone Borough Council [2020] EWHC 1895 (Admin) the case concerned a planning permission granted on by Maidstone Borough Council for the change of use of land for the stationing of 18 holiday caravans with associated works. In granting planning permission the council’s planning committee was told: the maximum size of each lodge would reflect the definition in s.13 of the Caravan Sites Act 1968; that it was not justified for the planning authority to seek more details of the lodges because planning permission was only required for the change of use of the land to station or accommodate the lodges for holiday purposes; and that planning permission would be required for any additions to the lodges for example, decking or verandas.

The claimant brought their judicial review of the permission on several grounds including that the above advice from officers was misleading and wrong in law.

The High Court dismissed the other grounds of challenge but importantly found the above advice from officers was an error of law and quashed the permission. Justice Holgate concluded that:

The nature of the planning application before the council did not prevent the authority from exercising further planning control over the design of the proposed holiday lodges ... merely because an application seeks permission for a change of use, the planning authority is not precluded from exercising planning control in relation to the design or appearance of structures or objects the siting (and retention) of which will be authorised by the permission”.

The council had argued that the above legal principle does not hold good in the case of a permission for the use of land to station caravans because design can be controlled under the site licence code contained in the Caravan Sites and Control Development Act 1960. In rejecting this argument Justice Holgate noted:

Although the powers under the two statutory codes overlap to some extent, it is necessary for an authority to be careful about assuming that any aspect of design which could be controlled under planning legislation can or should be left to the 1960 Act. First, as we have seen, s.5(2) of that Act excludes control over the materials used in the construction of a caravan, or in this case holiday lodge. Second, conditions may only be imposed on a site licence within the parameters set by s.5(1) of the 1960 Act. Third, a condition may not be imposed on a site licence purely for planning reasons, for example solely for the benefit of the visual amenities of other land (Babbage v North Norfolk District Council [1990] 59 P & CR 248, 255). Similarly, planning policies would appear to be immaterial to the licensing function under the 1960 Act”.

Accordingly, Justice Holgate concluded that it was an error of law for the Committee to be advised that the planning authority could not require appropriate design details to be provided, and so could not exercise planning controls in relation to the design of the lodges, by deciding whether or not to grant permission or by the imposition of conditions on any permission.

Lessons: Though a planning application may only be for a change of use it should be understood that any consequential permitted objects or structures which would be used on the land pursuant to such new use (such as a caravan) can be considered and controlled under any permission granted. The fact such objects and structures alone may not constitute development requiring planning permission, and/or may also be controlled by other legislation, does not mean that they (and their design and appearance) are not material planning considerations on the change of use application.


For more information or planning assistance please contact the Hewitsons’ Planning and Environment Team or contact Brendon Lee by clicking here.
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