Southwood v Buckinghamshire Council [2024] EWHC 71 (Admin)
Southwood v Buckinghamshire Council [2024] EWHC 71 (Admin) concerned whether changes to a storage building, including different external materials and internal alterations, rendered an earlier planning permission unimplemented or the resulting building unlawful before a change of use to residential accommodation.
The High Court dismissed the remaining judicial review challenge. Julian Knowles J held that the council’s planning assessment of the departures as immaterial was rational, and that the original storage permission could be regarded as implemented by earlier foundation work. The court distinguished the mere existence of differences from their significance in the context of the permitted scheme.
Court: High Court, King’s Bench Division (Administrative Court). Judge: Julian Knowles J. Judgment date: 22 January 2024. Case numbers: CO/4688/2022 and CO/4698/2022. Interested party: Stephen Green.
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The storage building and later residential use
The site was near Whitchurch, Aylesbury, Buckinghamshire. An Inspector granted permission in December 2010 for a detached single-storey building for general storage and for farm machinery, with conditions concerning approved plans, materials, landscaping and storage use. Foundations were constructed in 2012. The building itself was largely completed following a lengthy pause, with a completion certificate in 2020.
There were differences from the originally approved design: timber boarding rather than the brick originally proposed, changes to openings, and an internal first floor. A subsequent application sought to change the building’s use from storage to residential. An initial approval was quashed by consent and the council reconsidered the application, granting permission again in October 2022.
A neighbouring owner challenged the council’s treatment of the existing building as lawful. One strand concerned an alleged decision not to enforce, but the separate enforcement judicial review fell away after the council clarified its position. The surviving challenge was to the permission for change of use, principally on interpretation and lawful implementation grounds.
What the council was entitled to decide
Policy C1 of the Vale of Aylesbury Local Plan supported the reuse of an existing building of permanent and substantial construction subject to its criteria. The parties accepted that an ‘existing building’ in that policy meant an existing lawful building. The council’s officer had therefore examined whether the storage building had been lawfully implemented and whether the departures from the permitted design were material.
The court found no legal error in the conclusion that the foundations commenced the authorised development in time. Julian Knowles J reviewed Commercial Land and its application in Green, Silver and Atwill. A later difference between what was built and what was approved does not automatically undo lawful commencement. Whether a difference is material is a matter of fact and degree, requiring an assessment of the permitted development and the works taken as a whole.
The court also found that the officer was entitled to treat the external and internal changes as immaterial in appearance and function. Although there had been real departures from the drawings, their planning significance was for the authority to assess, subject to ordinary public law limits. The building retained its essential character and function as a storage building in the officer’s assessment.
Why the proposed brickwork was not compulsory
An important issue was whether the original permission required brick external walls. The 2010 application had proposed brick, and the Design and Access Statement described facing brick. However, the decision did not expressly incorporate the Design and Access Statement, and the relevant condition required external materials to be approved rather than expressly mandating brick.
Julian Knowles J held that a reasonable reader of the permission would not treat the initial brick proposal as a binding requirement. The subsequently approved timber boarding was therefore not, of itself, unlawful. This illustrates the importance of the wording of the operative grant, its conditions and which supporting documents have actually been incorporated.
Pre-commencement conditions and the Whitley principle
The development began before the relevant details of materials and landscaping had been approved. The officer considered that those conditions did not go to the heart of the permission, and details were later approved without challenge. Applying the approach discussed in Hart Aggregates, Greyfort and Meisels, the judge held that this was a permissible planning judgment.
The decision does not say that all pre-commencement conditions may be ignored. A failure to comply with a condition central to the permission may mean that work fails to lawfully implement it. The significance of the condition must be examined in its planning context rather than inferred from the mere presence of words requiring details before commencement.
Materiality is different from enforcement expediency
The officer’s report referred in one passage to differences not being sufficiently significant to justify enforcement action. The claimant argued that absence of enforcement could not make the building lawful. The judge accepted the distinction between the materiality of a departure and the expediency of enforcement, but read the report as a whole. The actual reasoning included an assessment that the differences were immaterial. It was therefore not unlawful on this ground.
Southwood is the counterpoint to cases where the built development is materially different from the operative permission. In particular, an immaterial variation does not necessarily render a development unauthorised just because the developer did not first obtain a non-material amendment under section 96A.
The High Court’s decision
The surviving judicial review was dismissed. The separate enforcement claim had already fallen away, and the corrected plan-reference ground was no longer before the court. The judgment did not grant a fresh planning permission itself or decide a live enforcement appeal; it determined whether the council’s October 2022 change-of-use approval was unlawful on the surviving grounds.
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