Planning permission — Material change of use — Enforcement notice — One room of first-floor flat used for mini cab business — Inspector giving permission for “continued use” of first floor — Whether inspector’s meaning clear that use confined to one room — Whether limitation could be recorded in register — Whether defect could be cured — Inspector’s decision quashed
The appeal concerned a three-storey premises at 52 Salusbury Road, London NW6, which comprised a retail shop on the ground floor and two residential floors above. The second respondent was alleged to have begun an unauthorised mini cab use operated from one room at first-floor level. Two enforcement notices were issued against him by the local planning authority for the cessation of unauthorised use. The notice referred to the “unauthorised use of 1st floor as mini cab firm”.
On February 20 1992, following an appeal against the second enforcement notice, the inspector, in his decision letter, stated that “the use is confined to the front room of the first floor of the premises” and that “continuation of the mixed use would not conflict with the objective of the planning policies adopted by the council” (per para 5). He therefore quashed the notice and granted planning permission for “the continued use of the first floor of 52 Salusbury Road” as a mini cab firm (per para 11).
The local authority applied to the High Court for an order quashing the decision of the inspector on the ground, inter alia, that the grant of permission failed to restrict the use to only part of the first-floor area. The Secretary of State submitted that if the inspector had indeed granted consent for the whole of the first floor, his decision would have been defective. However, no one reading the letter, the submission continued, in particular in light of para 5, could be in any doubt as to the factual situation — the clear picture which emerged was that the use was confined to a single room. It would be proper, therefore, for the grant to be treated as limited to the one room and that effect to be so recorded in the register.
Under the General Development Order 1988 it is provided that: “Where on any appeal to the Secretary of State under [section 172 — enforcement notices] … the appellant is deemed to have made an application for planning permission and the Secretary of State has granted permission, the local planning register authority shall, on receipt of notification of the Secretary of State’s decision, enter into … the register … particular of the development concerned … and the date and effect of the … decision”.
Held The local planning authority’s application was granted.
1. The court could not accede to the Secretary of State’s submission although it might present a neat solution to the matter at issue.
2. There would be a potential problem in granting consent to planning applications if entry on the register were to be permitted by interpretation of a decision letter.
3. The formal decision to grant application, which was deemed to be made in the instant case, was for permission, as stipulated in the enforcement notice. However, in the event, the language of the grant of planning permission in the decision letter did not deal with mixed use and failed to limit the use to one room of the first floor.
4. Looking at para 11 and at the phrase concerning the “continuing” use of the first floor, in the light of the terms of the GDO for the effect of the decision to be entered on to the register, the application to quash would be granted.
Mary Cook (instructed by the solicitor to Brent London Borough Council) appeared for the applicant planning authority; David Smith (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment.
