Permission granted for development — Condition that occupants should be of retirement age — Application to vary condition — Application refused — Appeal — Permission granted without condition — Whether inspector erred in removing condition — Application for judicial review dismissed
The applicant council granted planning permission for the conversion of buildings at 47-55 Plaistow Lane, Bromley, on March 19 1974 into old persons flats, staff accommodation and car parking spaces. The permission was subject to a condition that, inter alia, the accommodation “shall only be occupied by persons of an age commensurate with the receipt of a retirement pension”. The second respondent (“ECH”) applied to vary the condition on April 22 1994 to allow the building to be occupied by persons other than the elderly. It intended a major redevelopment of the site. The application was refused on July 18 1994 on the grounds that it would result in an over-intensive use of the limited on-site car parking facilities causing overflow which would be detrimental to traffic low.
ECH conducted an appeal by written representations on October 6 1995. It argued that most persons occupying the accommodation were in receipt of social security benefits and, because of their limited means, they would not own motor cars. Consequently, the problem would not arise. It was prepared to accept a personal condition that continued occupation of the premises without compliance with the condition would be for its benefit only and not for any successors. Further, it was willing to accept a temporary permission for a period of time when the position could be monitored and the matter reviewed when an application for renewal of the permission was submitted. In the applicants’ representations they argued that the variation in condition would mean an unincumbered residential use falling under class C3 of the 1987 use classes order. The Secretary of State by decision letter on October 6 1995 allowed the appeal under section 78 and Schedule 6 of the Town and Country Planning Act 1990. Planning permission was granted for the continuation of the use of the buildings without complying with the “aged residents” condition, but subject to the condition that the use permitted should be discontinued not later than two years from the date of the new permission. The applicants sought to challenge the decision and quash the permission.
Held The application was refused.
1. To raise the “evil” of theoretical class C3 use was a quite different matter from pleading evidence supporting the occurrence of that “evil”. The council’s inspector granted planning permission on the basis of the evidence before the court. ECH intended to use the premises for the same purposes over the next two years as they had done for the last 10.
2. There was no evidence before the inspector that ECH intended to operate any unencumbered residential use under class C3; no evidence as to the theoretical possibility of such use; and no evidence that the imposition of the condition was necessary in terms of policy guidance. It might have been open to the inspector to make a condition preventing class C3 use in the light of there being a theoretical class C3 use, but that was a distinctly different proposition than the one before the court.
Ian Albutt (instructed by the solicitor to Bromley London Borough Council) appeared for the applicants; Christopher Katkowski (instructed by the Treasury Solicitor) appeared for the Secretary of State; ECH did not appear and was not represented.
