In Lisle-Mainwaring and the Secretary of State for Communities and Local Government v Carroll [2017] EWCA Civ 131, the Court of Appeal has affirmed the approach to considering alternative uses distilled in R (on the application of Mount Cook Land Ltd) v Westminster City Council [2003] EWCA Civ 1346.
The case concerned an inspector’s decision to grant planning permission for a demolition and change of use from storage to residential, rejecting the objector (respondent)’s argument that dismissing the appeal would be likely to result in resumption of a previous office use. The inspector found that the existing use was B8, the change to C3 would accord with the development plan and that resumption of B1 use if permission was refused would in any event be unlikely (given the substantial conversion costs).
Two alternatives were in play: firstly, the loss of the resumption of B1 use claimed by the authority and respondent; secondly, the fallback that even if the B8 to C3 change was in breach of policy, it could take place under permitted development rights (once the qualifying period had accrued, which would be after the inquiry concluded).
The Court of Appeal held that the inspector’s reasoning on the B1 reversion point was entirely clear and rational on the facts, and had only been considered in the alternative to the main determination (that the change sought by the application itself was in accordance with policy). It did not comment on his finding that the prospect of the switch to C3 under permitted development rights was not in play at the decision date and so irrelevant as a fallback argument.
The Court of Appeal overturned Lang J’s finding in the High Court that the inspector could have viewed the loss of the chance of fallback to B1 use as in conflict with policy. Referring to the principles in Mount Cook, alternatives would normally be irrelevant unless the proposed development itself had “conspicuous adverse effects”, there were “exceptional circumstances” and the alternative was neither “inchoate or vague” nor unlikely to be implemented in the near future. The desirability of an alternative use did not determine its relevance – that would be inimical to the Mount Cook requirement for exceptionality. If a proposed development was acceptable – because it would do little or no harm – consideration of whether an alternative proposal for the site may be even more acceptable is generally unnecessary (following R (on the application of Langley Park School for Girls Governors) v Bromley LBC [2009] EWCA Civ 734).
The inspector had found no harm from the change to C3 use and the Court of Appeal agreed that it was in any event a “perfectly unexceptional case”. His decision should not have been quashed.
Roy Pinnock is a partner in the planning and public law team at Dentons
