2nd Homes … and how not to make an Art 4 decision

In R(Enlli Angharad Williams) v Cyngor Gwynedd [2025] EWHC 2395 (Admin), Eyre J struck down Cyngor Gwynedd’s Article 4 direction, dated 16th July 2024, requiring planning permission to be obtained for a change of use from a residential dwelling to a second home or holiday let.  He did so on the basis that there had been a material misdirection by officers to the Cabinet which made the decision.  In essence, planning permission is only required if there is development which is a “material change of use”.  Whether something is a “material change of use” was described in another case like this: “The issue of whether a material change of use takes place is one of fact and degree. But what has to be considered is the character of the use of the land, not the particular purpose of a particular occupier” (Ipswich BC v Fairview Hotels (Ipswich) Ltd [2022] EWHC 2868 at [69] – [71]).  The problem for Cyngor Gwynedd was that a lot of the reports prepared (other than an Explanatory Memorandum)had all presumed that that all such changes of use would require planning permission.  That was clearly wrong, particularly in the human rights context (in which Article 1, First Protocol issues are in play and require proportionality assessments).

Eyre J, drawing on the range of authority summarised the principles of whether reports are misleading as follows:

Reports are “not to be read with undue rigour but with reasonable benevolence”. They are to be read as a whole and there is to be a “fair reading of the report as a whole”. There will only be a public law failing if the members have been materially misled. The members will only have been materially misled if the report is “significantly or seriously misleading” on a “matter bearing on their decision” such that the decision might have been different but for the flawed advice. The court should not engage in a “legalistic analysis of the different formulations adopted in a planning officer’s report”.

As an aside, that summary will likely be familiar to homelessness lawyers steeped in the Holmes-Moorhouse dicta.

Eyre J found that the Cabinet had been materially misled

It is necessary to stand back and to look at the documents in the round and realistically. When that is done it is apparent that the Officers’ Report and the accompanying documents materially misled the members of the Cabinet. The making of the article 4 direction gave the Defendant control over changes between classes C3 and C5 and C6 which were material changes of use but not between such changes which were not material. That was a significant difference in circumstances where, as explained in Moore, not every change from a private residence to commercial letting would be a material change of use. The members of the Cabinet needed to be made aware that the article 4 direction did not bring non-material changes of use within the scope of planning control. The papers did not do that but instead, when read realistically, gave the incorrect impression that all changes would be controlled.

There is an interesting discussion about whether, if the cabinet had been aware of the issue, they would have made the same decision, so that relief should be refused: s. 31(2A), Senior Courts Act 1981.  However, once you find something materially misleading, it is hard to say that the decision would have been the same.  Further, we are dealing with A1P1 rights here which was a significant factor in the balancing exercise.  Accordingly, relief could be granted.

Oh dear.  I understand (or think that I have read) that Cyngor Gwynedd are going to appeal.