Town and country planning – Prior approval – Relevant area – Third defendant local authority refusing second defendant prior approval of change of use of property from retail to residential use – Inspector appointed by first defendant secretary of state allowing appeal against refusal – Claimant challenging decision – Whether relevant area for purposes of prior approval exceeding permissible limits – Whether rules of natural justice being breached – Whether development plan being taken into account – Whether inspector ignoring material consideration that premises registered asset of community value (ACV) – Whether inspector failing to comply with public sector equality duty – Application dismissed
The property, known as 161, Wimbledon Park Road in the Wandsworth, was a corner shop with residential accommodation in part of the ground floor; the first floor was wholly in residential use. There was a detached garage in the garden to the rear of the shop/residential building. The claimant occupied the shop and the residential accommodation under a lease from the parents of the second defendant. The second defendant applied for “prior approval”, a relatively new form of planning-related consent, to change the use of the retail accommodation to residential use. The third defendant local authority refused their approval on the grounds that the loss of the shop would lead to an inadequate provision of the sort of services provided by it. The second defendant appealed, successfully, to an inspector appointed by the first defendant secretary of state.
The claimant challenged her decision under section 288 of the Town and Country Planning Act 1990 on the grounds that: (i) the relevant area for the purposes of the prior approval exceeded the permissible limits; (ii) the rules of natural justice had been breached; (iii) the policies of the development plan had not been taken into account; (iv) the fact that the premises were registered as an asset of community value (ACV) was a material consideration ignored by the inspector; and (v) the inspector had failed to comply with the public sector equality duty in section 149 of the Equality Act 2010.
Held: The application was dismissed.
(1) No mistake had been proved regarding whether the relevant area for the purposes of the prior approval exceeded the permissible limits, still less that the measurements were uncontentious or objectively verifiable. The exceedances alleged were marginal. It ought to have been obvious that the garage had not been included in the measurements from the plans in the application, even if not obvious from the figures themselves. The claimant was well placed to check them, having sought advice. If mistake there was, it was his fault for not raising the point earlier. It was too late for him to raise the point now. Parties had to bring their case to the appeal procedure, and not wait, or try to catch up with what they could and should have done earlier, by way of a section 288 challenge, and a misuse of the role of error of fact as error of law.
It was also too late because, even if all the measurements which his surveyors made had been placed before the inspector and accepted, there was clearly an argument to be had: the third defendants and inspector had interpreted class M in part 3 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 as requiring a focus on the part of the building which looked like a shop, which they treated as the part in retail use. However, class M specifically contemplated a building in retail use, and a building in a mixed retail and dwelling house use, changing to residential use. The 150 square metre limit applied equally to both sorts of building.
The real point was whether there was a mixed use in the building or part of the building in question, or separate retail and residential uses. Where the building was in mixed use, one could not avoid the issue by confining attention to part of the mixed use only. That was a prior question to be resolved. The application of class M might involve a consideration of what the planning unit comprising the relevant building actually was. That involved issues of fact and degree. The use of the garage might be ancillary to a mixed use of the building and might be part of the planning unit and so could be brought into account; it might be solely residential or retail; and it might come into account on that basis since, if the main building became solely residential, the garage would become residential, changing from retail or mixed use. All that would require evidence and analysis: Burdle v Secretary of State for the Environment [1972]1 WLR 1207, Dyason v Secretary of State for the Environment [1998] 2 PLR 540 and Tapecrown v First Secretary of State [2006] EWCA Civ 1744; [2007] PLSCS 1 considered.
Unduly onerous obligations on the inspector had to be avoided, while appeals by way of written representations were not to be regarded as second-class forms of procedure in terms of fairness. There was no justification for complaining that the inspector ought to have acted as a meticulous, anxious, sceptical, inquisitorial auditor and scrutineer of details, which were agreed between the main parties, and not raised by the occupier when he had had every chance to do so. It was for the parties to make their cases. That did not mean that the inspector could not consider a point not raised, or that there might not be points which the public interest required them to consider, nor that there might be occasions on which a failure by an inspector to consider a point not raised, might give rise to a proper challenge on the basis that a material consideration, which he was obliged to consider, had been ignored. In any of those events, the duties of fairness might also require the inspector to give parties the opportunity to deal with them. Here, however, the inspector was under no obligation to raise the question of measurements, where it was not raised by anyone.
(2) In reality, there had been no substantive injustice. The inspector went to see the alternative shop, aware of the issues over the level of service. The court inferred from the decision letter that the inspector went into the customer areas of both shops, on an unaccompanied site visit. There was nothing in the representations which the claimant might have made which could have added to her appreciation of the location and service offered by the alternative shop. There was no reason why the claimant should have been notified of the visit; it was not part of the relevant rules or guidance.
(3) As regards the role of the development plan, there was no statutory obligation to decide the application on the basis of the approach in section 38(6) of the Planning and Compulsory Purchase Act 2004. Section 70 of the Town and Country Planning Act 1990 did not apply to an application for prior approval and there was no other provision to like effect for applications for prior approval. So there was no means whereby section 38(6) could supply the hook for the application of a decision-making duty. It only applied if regard was to be had to the development plan and there was no such statutory requirement in relation to prior approvals. Moreover, the duty to have regard to the National Planning Policy Framework (NPPF) would have become a duty in effect to apply section 38(6), without Parliament saying so. That would involve inserting words into section 38(6) which Parliament had left out and the court was reluctant to interpret the NPPF as supplying such an omission. Furthermore, paragraph 12 of the NPPF, read with paragraph 11, was simply stating that section 38(6) applied to applications for planning permission. Paragraph 12 followed that up by saying that the NPPF did not alter the status of the development plan. It did not purport to give effect to some application of section 38(6) and section 70 outside their statutory language.
(4) The inspector had erred in treating the absence of ACV status from class M1(g) as making ACV status irrelevant to the defined issue. However, it was clear that, had she considered it to be of relevance to the real issue (the undesirability of permitting the change because of its impact on the provision of services), it would have made no difference to her decision. She could properly have concluded that of itself it added nothing to the arguments. The ACV status of this corner shop reflected the local value put on its services as a shop which was at the heart of the question of the impact of its loss on the provision of services. Status was relevant to class M but did not arise as an issue in this case.
(5) The public sector equality duty and section 149 of the Equality Act 2010 had been fulfilled. An examination was required of whether the decision-maker had in substance had due regard to the statutory needs, which depended on the decision and its reasoning. There was no duty to give particular weight to the needs of the elderly or disabled and no duty to achieve the outcome which advantaged them the most or disadvantaged them the least. The inspector, as decision-maker, had been properly informed about the issues and applied her mind to the issue in the manner required by Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, even though she did not specifically refer to the section 149 duty. She was not obliged by section 149 to find some countervailing public benefit to set against the greater disadvantage of the longer journey or the loss of services before she could reach a lawful decision on the prior approval. The question she had to decide was still the same. Otherwise, section 149 would alter the decision which had to be made: R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin), R (Coleman) v Barnet London Borough Council [2012] EWHC 3725 (Admin) and Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 considered.
| Robert Fookes (instructed by Fortune Green Legal) appeared for the claimant; Isabella Tafur (instructed by the Government Legal Department) appeared for the first defendant. |
Eileen O’Grady, barrister
