Policy for secondary shopping area directed to achieving balance between shopping and non-shopping uses – Permission for change of use from shop to takeaway refused because of adjacent non-shop use by estate agent – Permission granted by inspector on appeal – Further appeal by council dismissed
The appeal site was a shop standing in a group of three shops, Chiltern Court, located in an area of Wendover designated in the local plan as a “central commercial area”, but not one containing “key shopping frontages” (KSF). For such areas the local policy (in contrast to the stricter policy applicable to KSF areas) was that non-shop use would normally be permitted provided that: (a) the use was appropriate to the area; (b) a shop window display was maintained wherever possible; and (c) a satisfactory balance was maintained between shop and non-shop use. The last condition went on to state that planning permission was unlikely to be granted for a change from shop to non-shop use where the premises adjoined an existing non-shop use. In July 1996 the owner applied for permission to change the use of his premises from A1 (shop) to A3 (takeaway), which the council refused on the ground that the adjoining premises were used as an estate agency.
Following the owner’s appeal to the Secretary of State for the Environment, the inspector held a hearing where it was common ground that the council were solely concerned with the (economic) vitality and viability of the town centre, and that permission would have been granted if, for example, the appeal premises had stood next to a video hire shop. The inspector allowed the appeal, stating in his decision letter that a wider area than the adjacent shops should be considered in order to obtain a satisfactory assessment of the balance of uses. Taking that approach, the inspector, having noted that the ground-floor windows of Chiltern Court, being set behind an arcade, were not a prominent feature, formed the view that the loss of window display in the owner’s shop would not materially detract from the vitality and viability of the shopping area. The council appealed to the High Court, contending, inter alia, that the inspector had misapplied the policy, in particular condition (c).
Held The appeal was dismissed.
The policy aimed above all to achieve a balance between shopping and non-shopping uses, and it was clear that the decision letter had made the desired balance the paramount consideration. The factors which weighed upon the inspector’s mind were essentially matters of judgment with which the court could not interfere.
Anne Williams (instructed by Sharpe Pritchard, London agents for the solicitor to the Aylesbury Vale District Council) appeared for the appellants; Natalie Lieven (instructed by the Treasury Solicitor) appeared for the first respondent, the Secretary of State for the Environment; the second respondent did not appear and was not represented.
