The Northern Ireland High Court quashes the Planning Appeal Commission’s grant of two change of use applications on short term holiday let accommodation.

Introduction

The High Court in Belfast recently delivered its judgment in a case centred upon two planning applications for retrospective change of use from residential to short term holiday let accommodation for apartments at Citygate, Sussex Place, Belfast. Despite initial refusal by Belfast City Council (“BCC”) in August 2022, the Planning Appeals Commission (“PAC”) subsequently granted these applications in October 2023. BCC sought to judicially review the PAC decision on the basis of a misinterpretation of Planning Policy.

Facts

BCC adopted its Plan Strategy 2035 on 2 May 2023, which alongside the Local Policies Plan, will form one limb of the complete Local Development Plan for the BCC area.

In the case at hand, the PAC assessed the change of use application in light of two of the Plan Strategy’s key policies: Policy HOU3 (‘Protection of existing residential accommodation’) and Policy HOU13 (‘Short-term let accommodation"). Policy HOU3 aims to protect residential stock in prohibiting inappropriate non-residential uses within established residential areas. Policy HOU13 acknowledges the importance of short-term let accommodation for visitors to Belfast and outlines the criteria and justification for permission of this type.

The PAC Commissioner argued that Policy HOU3 did not apply to the subject application as “…HOU3…seeks to protect existing residential accommodation in established residential areas and locations fronting onto a city corridor outside a designated centre. It does not, in my judgment, apply to proposals in the city centre…”. However, Mr Justice Humphreys, held that the Commissioner’s reasoning was “entirely opaque” and stated that the Commissioner’s distinction between the ‘city centre’ and ‘established residential areas’ was “manifestly untenable”, given that there are clearly established residential areas within Belfast City Centre. Mr Justice Humphreys concluded that with regards to Policy HOU3, there had been a clear misdirection which could not be sustained.

Secondly, the discussion surrounding Policy HOU13 centred on the meaning of ‘part of property’ in criteria (f), namely that “in the case of a change from permanent residential use, part of the property must be retained as permanent residential housing”. The crux was whether the word ‘property’ related to the apartment complex building as a whole or instead related to an individual apartment unit. The Commissioner concluded that ’property’ related to the building as a whole because the lack of Policy guidance led to the appellant being allowed the most favourable interpretation for them. Mr Justice Humphreys disagreed with this conclusion. He stated that this was an error of law as the word ‘property’, when given its natural and ordinary meaning, should be read as an individual apartment. The Court outlined that the Commissioner had disregarded the overall aim of the policy which was to protect properties in permanent residential use as his interpretation would mean that criterion (f) would be satisfied if 59 out of 60 Citygate apartments were let on a short-term basis, provided the single other apartment remained in permanent residential use.

Implications

This is an important judgment relevant to all housing developers as it confirms that Policy HOU3 applies to any ‘established residential area’, including those which are in Belfast City Centre. Moreover, the judgment clarifies the meaning of ‘property’ in the context of Policy HOU13. The judgment also serves as a useful example of a permission being quashed due to the misinterpretation of planning policy and reiterates the well-established legal principle that the interpretation of planning policy is a question of law for the Court.

If you would like further information, please contact Sophie Hunter or Gary McGhee from the Planning & Environmental team.

*This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice that is tailored to your circumstances.