In SAN Investments Ltd v Secretary of State for Communities and Local Government and another [2016] EWHC 2830 (Admin), the High Court considered the meaning of the phrase “allocated for employment use” in paragraph 22 of the National Planning Policy Framework (NPPF).
The developer had constructed (with permission) a mixed use development in Birmingham’s Jewellery Quarter Conservation Area, however the commercial units remained unsold and unlet. The developer applied for permission to convert the commercial units to residential use, on the basis they had not been sold or let. The council refused the application. The conservation area management plan provided that conversion to residential use was inappropriate. The developer appealed but the planning inspector refused the developer’s application to convert to residential use, finding that there was a viable future for the site as commercial premises. The commercial units had been marketed appropriately and, although vacant, still offered the benefit of available business floorspace in the Jewellery Quarter.
The developer applied to the High Court for permission to challenge the inspector’s decision, arguing that: (1) the inspector had made an error of law in dismissing the applicability of paragraph 22 of the NPPF. While the site was not “allocated for employment use” in the development plan, it was in the broader sense, outside the development plan, designated for employment use. A broad interpretation was consistent with the proper approach to the construction of the NPPF explained in Suffolk Coastal District Council v Hopkins Homes and another [2016] EWCA Civ 168; and (2) paragraph 22 was relevant to this case: there was no reasonable prospect of the site being used for commercial use. Paragraph 22 placed considerable emphasis on an economic approach to decision making. It was more likely to lead to the grant of planning permission for a change to residential use, than the more rigid application of paragraph 51 of the NPPF.
The High Court upheld the inspector’s finding that (1) paragraph 22 of the NPPF did not apply in this case. Paragraph 22 applied explicitly to “allocated” employment uses in development plans; the site had not been allocated. While allocation was not a defined term of art, in relation to the NPPF, it meant the process of prior determination or designation of uses allocated to sites specifically included within the development plan. In paragraph 22, “allocated for employment use” did not mean “intended for employment use”. (2) Paragraph 22 would not provide a greater opportunity for change of use than paragraph 51. Paragraph 51 of the NPPF provided a broader basis for permitting a change of use than paragraph 22. Paragraph 51 created a presumption in favour of change to residential use, provided there was “an identified need for additional housing”. Under paragraph 22, even where the paragraph 22 precondition was met, there was no presumption in favour of a change of use. This conclusion adopted the broad and purposive construction of the NPPF endorsed by the Court of Appeal in Suffolk. (3) The paragraph 22 precondition was not met. The inspector had concluded, on the evidence, that there was a viable future for the site as commercial premises.
Martha Grekos is a partner and head of planning at Howard Kennedy LLP
