Material Change of Use in UK Law

As I suggested in the course of the argument, I think for that purpose whatthe local authority are entitled to look at is the whole of the area which was used for a particular purpose including any part of that area whose use was incidental to or ancillary to the achievement of that purpose.

I do not find it necessary to consider those issues in any detail. M and WR rightly accept that it is permissible to consider off-site effects when assessing whether an MCU has been established. In assessing whether there is a change of character in the use, its impact of the use on other premises is a relevant factor. It is necessary, on the particular facts, to consider both what is happening on the land and its impact off the land when deciding whether the character of the use has changed.

The simple proposition which should not be lost sight of is that the use for which a planning permission is granted must be ascertained by interpreting the words in the planning permission itself. If the permitted use has been implemented, and a change to the permitted use takes place, then it will be a question of fact and degree whether that change is a material change of use.

It is clear that the word lawful in section 192 means lawful in the context of the planning legislation. What either does not require planning permission or has planning permission (either under the GPDO or because of an express planning permission) is lawful. Therefore in the context of an application for a section 192 certificate what has to be decided is whether a planning permission which has not been granted is needed for the making of the proposed change of use.

On the facts of cases such as the present, it will not be sufficient if the works are integral to or part and parcel of the present unauthorised use of land if the works had been undertaken for a different, and lawful, use and could be used for that other, lawful use even if the unauthorised use ceased.

I accept Mr Corner's point that an enforcement notice can lawfully be issued notwithstanding that at the moment of issue the activity objected to is not going on—because it is the week-end or the factory's summer holiday, for instance. The land would still be properly described as being used for the objectionable activity. I accept that there will be borderline cases when it is not clear whether the land is being used for the objectionable activity.

As Mr Jones put it, the grant identifies what can be done – what is permitted – so far as use of land is concerned; whereas conditions identify what cannot be done – what is forbidden. Simply because something is expressly permitted in the grant does not mean that everything else is prohibited.