Planning Court clarifies interpretation of Section 55(2)(a) TCPA 1990 and the resolution of ambiguities in prior approval cases
In Dharmeshkumar v Secretary of State for Levelling Up Housing and Communities and another [2025] EWHC 25123 (Admin), the Planning Court clarified interpretation of the exception to “development” in S55(2)(a) of the Town and Country Planning Act 1990 (“TCPA”). The decision also provided guidance on the scope for extrinsic material to be relied upon when resolving ambiguities in prior approvals.
Background
This case concerned an enforcement notice issued by Brent London Borough Council in respect of a material change of use of an office building which had been converted into twelve residential flats without planning permission.
The Appellant appealed the notice, arguing that the change of use was deemed approved by a combination of a prior approval decision for change of use under permitted development rights in the Town and Country Planning (General Permitted Development) (England) Order 2015 (“GPDO”) and a planning permission obtained previously. This was rejected by the inspector who concluded that the works constituted “development” under S55 of the TCPA and therefore required separate planning permission which had not been obtained. They were not authorised by the prior approval due to non-compliance with approved details.
Ground 1(a): Correct interpretation of TCPA S55(2)(a)
The Appellant argued that the Inspector erred in concluding that the exception in S55(2)(a) for “works of maintenance, improvement or other alteration” which either affect “only the interior of the building” (first limb) or “do not materially affect the external appearance of the building” (second limb) did not apply.
The court applied the four-outcome test from Hewlett v Secretary of State for the Environment, concluding that the key issue was whether the works fell within outcome (2) maintenance improvement or alteration that did not materially affect the appearance of the building or (3) works materially affecting the external appearance.
When applying this test, the inspector must be satisfied that the effect is more than ‘de minimis’ and appreciate that materiality is context specific. Provided this has been considered, the court emphasised that materiality must be a matter within the realm of the planning judgement of the decision maker. On the facts, whilst the Inspector’s reasoning could have been clearer, the Inspector had correctly applied both limbs of S55(2)(a). The Inspector’s conclusion that the works constituted development was therefore lawful and this ground was dismissed.
Ground 2: Reliance on extrinsic material to resolve ambiguity in prior approval cases
The Appellant argued that the inspector had erred in resolving an acknowledged ambiguity in the prior approval (it referred to two plans which did not exist) by referring to extrinsic material (i.e. the application documents).
The court considered how the principles outlined in Ashford Borough Council, ex Parte Shepway District Council (and endorsed in Trump International Golf Club v Scottish Ministers) would apply in the context of prior approvals. The court highlighted that under paragraph W(12)(a) of the GPDO, where prior approval is granted, the development must be carried out in accordance with the approved details. This is significant as, were this a case of interpreting planning permission which doesn’t have this statutory wording, it would be difficult to argue that the drawings were incorporated in the prior approval due to the ambiguous expression “change of use… involving the creation of 12 flats and accompanied by plans or documents listed here.”
On the facts, the phrase “change of use… involving the creation of 12 flats” described the nature of the development, but not the specific terms of approval. To determine those terms, it was necessary to refer to the drawings but as these were ambiguous it was lawful to refer to the application documents to resolve this. Therefore, the judge held that, due to the statutory wording in paragraph W(12)(a) of the GPDO, it was both necessary and permissible to refer to application documents to resolve the ambiguity.
Conclusion
This decision reinforces the importance of both limbs of the S55(2)(a) test when assessing whether the exception to “development” can apply. It emphasises that provided both limbs have been considered, great deference is given to the judgement of the planning authority. The decision also provides much needed clarity in respect of the lawful basis for reliance on extrinsic material in the case of ambiguity for prior approvals.
