Change of use — Leisure facilities — Local planning policy — Refusal of planning permission — Whether inspector’s decision justified on evidence — Claim allowed
The claimant applied for change of use of part of the ground and first floors of a building from B1 to use as a health and fitness club. The change was from that of employment to that of leisure. The building was located less than half a mile from the primary retail core of the town centre and from bus and rail stations. It was surrounded by buildings in Class B use, some of which had been redeveloped but some of which were empty.
The building had been largely empty for around five years, and attempts to find tenants willing to occupy it in accordance with its existing permitted use had proved unsuccessful. It was functionally obsolete and was unlikely to be let prior to the termination of the lease in 2009. Moreover, without refurbishment, there could be no guarantee that, following expiry of the lease, the building would be capable of being used within the permitted class. The claimant contended that the building represented a wasting asset and that the proposed development was the only feasible way in which the building could be brought back into productive use.
The claimant appealed, under section 78 of the Town and Country Planning Act 1990, against the failure of the second defendant local planning authority, to decide its application for planning permission within the prescribed period. The first defendant’s inspector refused planning permission on the grounds that the proposed development would be an inappropriate use of employment land, having regard to local planning policies; and that, having regard to the sequential approach to leisure development, there was no need for the proposed development in this location.
The claimant applied brought a claim to quash that decision under section 288 of the1990 Act.
Held: The claim was allowed.
The inspector’s conclusion that the proposed development would not be an appropriate use of employment land, having regard to local planning policies, was not justified either by the reasons he gave or by the evidence.
The inspector had joined issue with assertions by the claimant that he had failed to make certain findings based upon the evidence put before him. Such a course was permissible, but care had to be taken that an inspector did not seek to explain or expand upon his or her reasons in the light of criticisms made in grounds of appeal. Exceptional cases might arise where an explanation where appropriate but, in most instances, the decision letter had to speak for itself and, if the inspector’s reasons given were inadequate, it might be quashed.
The uncontradicted evidence was that, despite continued efforts, no tenants could be found for the building. It was unlikely that the claimant had not considered all possible ways of making profit from the building. Further evidence suggested that positive interest had been expressed by potential business users were the scheme to go ahead, and there was no justification for limiting the means whereby regeneration could be achieved.
Robert Griffiths QC and Stephen Whale (instructed by Thomas Eggar, of Crawley) appeared for the claimant; Philip Coppel (instructed by the Treasury Solicitor) appeared for the first defendant.
Eileen O’Grady, barrister
