In Westminster City Council v Secretary of State for Communities and Local Government [2015] EWCA Civ 482, the local planning authority (LPA) had earlier unsuccessfully challenged, under section 289 of the Town and Country Planning Act 1990, the decision of an inspector allowing an appeal against an enforcement notice. The breach of planning control alleged was a material change of use of a building from a hotel (Class C1) to a mixed-use hotel and hostel (sui generis). The inspector had concluded (a) that – as a matter of fact – the use was not a mixed hotel and hostel use, as alleged and (b) that even if there had been such a mixed use, no material change of use had taken place. On the High Court had dismissing its challenge, the LPA appealed to the Court of Appeal.
The appeal judges unanimously allowed the appeal and remitted the matter to the Secretary of State for re-hearing and determination in accordance with the court’s opinion.
On the issue whether the use was a mixed hotel and hostel use, the court acknowledged that this was a question of planning judgment. However, the inspector’s rejection of a mixed use in this case was legally flawed. She had asked herself whether part of the premises was in exclusive use as a hotel and part was in exclusive use as a hostel. In so doing, she had erred. It had been accepted on behalf of the Secretary of State that a mixed use can subsist where the different elements are not associated with particular parts of the premises. (This had been referred to judicially in the past as a “composite” use of land.) If she had not so erred, it was difficult to see how in the light of her findings of fact she could reasonably have reached any conclusion other than that there was a mixed hotel and hostel use as contended.
On the issue whether there had been a material change of use, it was important to consider whether there had been a change in the character of the use. In that respect, the inspector had also erred in that she had failed to have regard to a relevant matter, namely the off-site effects of the current use on residential amenity. (Evidence before the inspector demonstrated that there had been a large number of complaints made by nearby residents about noise and disturbance.) This was a material consideration to which she was bound to have regard
John Martin is a planning law consultant
