Appeal 6006658

The appeal is dismissed.

The main issue is whether internal works carried out prior to the submission of the application amount to the commencement of development for the purposes of paragraph W(11) of Schedule 2, Part 3 of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) (the GPDO).

There is no substantive dispute between the parties that the proposal would otherwise satisfy the limitations and conditions of Class MA and that the matters subject to prior approval could be addressed satisfactorily. The Council’s evidence confirms that, but for the issue of commencement, prior approval could have been granted. The appeal therefore turns solely on whether the development had begun before the prior approval process had been completed.

[name].2(4) applies the provisions of paragraph W, including paragraph W(11), which states that development must not begin before prior approval is granted, deemed not to be required, or the expiry of the relevant period. The requirement is clear and unambiguous. Compliance with paragraph W(11) is a necessary precondition to reliance on the permitted development right.

The appellant’s case rests on the contention that, in the absence of residential occupation, no material change of use had occurred and that the lawful Class E use therefore continued. It is also argued that the works undertaken were incidental or preparatory and do not amount to the commencement of development, with reliance placed on established principles concerning planning units and the distinction between capability of use and its implementation.

I accept, as a matter of general principle, that a material change of use depends upon a change in the character of the use of the planning unit, and that capability of use does not in itself amount to its commencement. However, those considerations are not determinative in this case. [name](11) is concerned with whether “development” has begun. In planning terms, development includes both operational development and material changes of use. It follows that the absence of occupation, or of a completed change in the character of the use, does not in itself demonstrate compliance with paragraph W(11).

Whether the works undertaken amount to the commencement of development is a matter of fact and degree. In this instance, the evidence shows that the rear part of the ground floor has been physically subdivided from the commercial unit and fitted with domestic facilities, including a kitchen and shower room. Taken together, those works go well beyond minor or incidental alterations. They amount to a substantial internal reconfiguration necessary to create a self-contained dwelling, comprising the physical substance of the development notwithstanding that occupation has not yet occurred.

I do not accept that the development authorised under Class MA can be confined to the change of use alone so as to exclude the associated operational works from the scope of paragraph W(11). The GPDO grants planning permission for development as a whole, and the restriction on commencement applies accordingly. To conclude otherwise would allow substantial works to be undertaken before the prior approval process had been completed, which would be inconsistent with the clear procedural framework of the Order.

For these reasons, and on the basis of the undisputed evidence before me, I am satisfied that the works undertaken prior to the submission of the application amount to the commencement of development. The appellant’s submissions do not alter that conclusion.

I have had regard to the appellant’s submissions on the intended purpose of the GPDO. Whilst Class MA is intended to support the delivery of new homes, it operates within a defined statutory framework of procedural requirements, including [name](11). Applying its plain wording does not represent an unduly restrictive interpretation but rather a straightforward application of the legislation.

Finally, I have considered the appellant’s fallback argument. Even if a planning application might succeed on its merits, that does not remove the requirement to comply with the GPDO. This appeal concerns entitlement to the permitted development right, not the planning merits of the proposal. The fallback position therefore attracts little weight.

Drawing these matters together, I find that the nature and extent of the works undertaken prior to the submission of the application amount to the commencement of development. The proposal therefore fails to comply with paragraph W(11), with the consequence that the permitted development right under Class MA cannot be relied upon. For that reason, the appeal is dismissed.