The basics #6 - a material change of what?
A pain-free crib-sheet on “planning units”
As some dare to dream of a completely new planning system (let’s hope this job is still called “planning” after the “Great Recovery Bill” has had its way, otherwise the blog may need a new name… “zone-er-aks” 😬?)… anyway, join me if you have 2 minutes for something a bit more down-to-earth. A few more #planoraks basics.
The planning system is - we’re told - a self-contained statutory code. But the statute-writers - despite being some of the finest lawyers in the land - didn't think of everything. And some of the things they missed are important.
Here’s one: the system is built on the idea of controlling development. The law defines development as, among other things, “making of any material change in the use of any buildings or other land”.
But which “buildings or other land” are we supposed to consider to decide if a change of use is material?
The answer might seem easy, e.g in the case of a single dwelling-house.
But take a shopping centre (remember those - from the days we used to go outside?). Changing one unit in the centre from an A1 shop to an A3 restaurant might be material for that particular unit. But it might be totally immaterial for the shopping centre as a whole.
What about a builder’s yard with some retail at the front with some storage or industrial activity to the rear? What about a hotel with a cafe on the ground floor, or an apartment block connected to a gym?
When parts of these uses in parts of these buildings start to change, against which bits of the building do we measure if the change is material or not? The statute does not tell us. But, thank goodness, the courts have filled the gap with the idea of a “planning unit”.
For almost 50 years, the go-to-case on planning units has been the judgment of Mr Justice Bridge in Burdle v Secretary of State for the Environment [1972] 3 All E.R. 240 - far too old for a Bailii link ☹️ - but thankfully the key parts are reproduced in lots of more recent link-able cases including here at §54. Burdle sets out a 3-point plan to help find the right planning unit:
When there’s a single main purpose of the occupier’s use of the land to which secondary activities are incidental or ancillary, the planning unit = the whole unit of occupation.
When there’s a variety of activities and it is not possible to say that one is incidental or ancillary to another - a composite use where the component activities fluctuate in their intensity from time to time but the different activities are not confined within separate and physically distinct areas of land - then the planning unit = the whole unit of occupation.
When you have, within a single unit of occupation, two or more physically separate and distinct areas are occupied for substantially different and unrelated purposes, then the planning unit = each area used for a different main purpose.
So here’s what the judge called the “useful working rule” from Burdle: we should assume that the unit of occupation is the appropriate planning unit, unless and until some smaller unit can be recognised as the site which = in substance a separate use both physically and functionally.
Sounds easy? It isn’t (sorry!):
There may be separate planning units within a single building. Take that shopping centre example. In the Church Commissioners for England case, the High Court split the difference. It decided that the Metro Centre in Gateshead was to be considered “for many purposes” as a single planning unit. But the particular retail unit within the Metro Centre was to be assessed for the purposes of planning control, and deciding whether a change from A1 to A3 was material to not.
A planning unit may contain several separate and distinct buildings - albeit the further the buildings are apart, and the greater the degree of their physical separation, the more likely they are to be different units.
And remember, the unit of occupation isn’t always the same as the unit of ownership. In Rawlins, the courts accepted that a single planning unit could take in a larger site comprising several plots in separate ownerships.
The cases are legion. But in general, they depend on reaching planning judgments (with which - as regular readers will recall! - the courts don’t normally interfere) applying the Burdle 3-point plan above to the facts of your case remembering the general working rule - i.e. unless you have both physical and functional separation within a single unit of occupation, you’re probably in a single planning unit.
That wasn’t too painful, was it? Stay well, #planoraks.
