The first Article 4 Direction in Wales successfully challenged in the High Court

In R (on the application of Enlli Williams) v Cyngor Gwynedd EWHC 2395, the claimant successfully challenged Cyngor Gwynedd’s decision to confirm an Article 4 Direction. The challenge was brought on the sole ground that the decision was reached on a mistaken basis.

The High Court found that the officer reports and accompanying documents materially misled Cabinet members by giving the incorrect impression that all changes of use would be controlled by the Article 4 Direction.

This decision provides important lessons for local planning authorities about the need for clarity in officer reports and realistic assessments of what Article 4 Directions can achieve, as well as key considerations for property owners affected by such Directions. 

Browne Jacobson acted on behalf of the claimant in these proceedings. 

Background 

Communities across Wales have experienced mounting pressure from the rising number of second homes and short-term holiday lets. The Welsh Government recognised the need to help local planning authorities manage this through amendments to the development management system and planning policy in Wales. 

The legislative response 

In November 2021, the Welsh Government published a consultation document on amendments to the Town and Country Planning (General Permitted Development) Order 1995, which included proposals for reforming Article 4 Direction procedures. The consultation was open for responses until 15 February 2022. 

The Welsh Government wanted to support local planning authorities in controlling the exercise of permitted development rights where this would harm local amenity or the proper planning of the area. The procedure at that time for making an Article 4 Direction, including the requirement for all Directions to be confirmed by the Welsh Ministers, was seen as an obstacle to greater use of Directions.

Implementation 

The new Article 4 procedures were introduced by the Town and Country Planning (General Permitted Development etc.) (Amendment) (Wales) Order 2022, which came into force in Autumn 2022. 

This legislative framework set the stage for local planning authorities across Wales to use Article 4 Directions as a tool to manage the impact of second homes and holiday lets on their communities. Cyngor Gwynedd was one of the first authorities to attempt to use these new powers.

Article 4 Directions

Article 4 Directions are one of the tools available to local planning authorities which allow them to respond to the particular needs of their area. 

They provide local planning authorities with the ability to restrict “permitted development” rights which would otherwise apply by virtue of the Town and Country Planning (General Permitted Development) Order 1995 where it is considered expedient to do so.

An Article 4 Direction does not prevent development. Instead, it requires planning permission to be obtained from the local planning authority so the planning impacts of the development can be considered before a decision is taken on whether it can proceed. 

Typically, permitted development rights allow a change of use without planning permission between different types of dwellinghouses. Following amendments in 2022, there are now three use classes in Wales:

• main residence (C3 main residences occupied for more than 183 days per year).
• second/holiday homes (C5 second homes occupied for 183 days or fewer), and
• short term lets (C6 short-term holiday lets not exceeding 31days per letting). 

An Article 4 Direction may remove these permitted development rights. The removal of such rights, however, are limited to “development” which constitutes a material change of use. Therefore, changes of use that do not amount to a material change remain outside of the local authority’s control. 

Any Article 4 Direction seeking to remove these type of permitted development rights would need to be supported by local evidence highlighting the impact of second homes and short-term lets on specific communities as part of a co-ordinated response.

Julie James MS, the Minister for Climate Change at the time, wrote to the local planning authorities in September 2022 explaining that any Article 4 Direction would need to be supported by robust local evidence highlighting the impact of second homes and short-term lets on specific communities as part of a co-ordinated response, and would need to evidence effective community consultation. 

Material change of use 

Whether a change of use from a dwelling house to use as a second home or holiday letting amounts to a material change of use is a question of fact and degree in each case.

As Sullivan LJ explained in Moore v Secretary of State for Communities and Local Government [2013] JLP 192 neither extreme proposition is correct: using a dwelling house for commercial holiday lettings will not always amount to a material change of use, nor can it never amount to one. 

Cyngor Gwynedd’s decision 

On 13 June 2023, Cyngor Gwynedd’s Cabinet approved the making of an Article 4 Direction with deferred effect. The decision at that stage was that the Direction would come into effect on 1 September 2024 subject to being confirmed.

The public notice of that decision confirmed that certain permitted development rights were being removed and that development to which such rights had attached would require planning permission after the coming into force of the Direction. The Direction was made by Council on 19 July 2023, with the notice of the Direction being given by the Council on 2 August 2023. 

There was a period of public consultation after the June 2023 decision. The matter then came before the Communities Scrutiny Committee on 16 May 2024. The report to that committee said that it was “hoped that introducing the Article 4 Direction will provide an opportunity to assess the propriety of any proposal that involves changing the use of a residential home to holiday use, be that use as a holiday let or a second home”. The Communities Scrutiny Committee recommended that the Cabinet confirm the Direction and the matter went back to the Cabinet. 

The Cabinet considered the issue on 16 July 2024. The Officers’ Report was accompanied by a report on the public engagement exercise; an impact assessment; and a “paper justifying the introduction of the Article 4 Direction”. 

Conclusion

This judgment serves as an important reminder that whilst Article 4 Directions are valuable tools for managing the impact of second homes and holiday lets on Welsh communities, they must be implemented with precision, clarity, and a realistic understanding of their scope.

The decision underscores that procedural reforms do not eliminate the fundamental requirement for lawful decision-making based on accurate information.