Extension to restaurant — Restaurant user having ceased — Premises having been used in interim period for bookshop — Contention that “extension” incapable of being implemented — Existing use premise challenged — Whether retail use under Class A1 for bookshop extinguished Class A3 use as restaurant — Whether need for fresh planning permission — Whether extension to premises granted for purpose for which building was designed — Whether physically possible for implementation of permission — Appeal by local planning authority to set aside first instance decision in favour of restaurant — Appeal dismissed
From about 1972 to 1987, the premises at 46 Hampstead High Street, London NW3, had been used as a restaurant. In December 1987 an application was made for the erection of a single-storey rear extension to the ground-floor restaurant, which was allowed on appeal by the Secretary of State in the following terms: “… planning permission for the erection of a single storey rear extension with a ground floor restaurant”. A condition was imposed that the planning permission was to be implemented within five years.
After being vacant for about a year, the premises were used as a bookshop from November 1988 to January 1989. Bookshop user recommenced again, after another vacancy, from June 1989 to August 1990. Since then the premises had again been vacant. Their physical structure remained unaltered. In June 1991, the present respondents had taken a lease of the ground floor for 25 years with the intention of using the premises as a McDonald’s restaurant.
McDonald’s sought to implement the planning permission of October 1988 but the local planning authority maintained that that permission had lapsed, inter alia, in view of the intervening use of the premises as a bookshop. McDonald’s successfully sought two declarations in the High Court, viz (1) that the planning permission granted for the erection of the extension remained valid and subsisting; and (2) that the ground floor of the premises could lawfully be used for restaurant purposes. Among the arguments put forward by the local planning authority were that if the restaurant ceased to exist then by definition it was incapable of being extended until such time as further planning permission had been granted; and that the original permission had related only to the extension but not to the restaurant itself. The existing use right was lost by change of use from a restaurant to a bookshop. It was therefore not a permission for a change of use from Class A1 to Class A3 under the 1988 GDO and planning permission would be required for a change of use back from A1 to A3 user.
Held The appeal was dismissed.
1. In Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment (1984) 272 EG 425, the House of Lords held that a “grant of planning permission enured for the benefit of the land … and it followed that a valid permission capable of implementation could not be abandoned by the conduct of the owner or occupier”. That case also expressly approved the statement in Pilkington v Secretary of State for the Environment [1973] 1 WLR 1527 that “one must look back at [the] permission … and see whether in fact that development there contemplated can now be carried out…”. The in the case of Durham County Council v Secretary of State for the Environment [1990] 1 PLR 103, the Court of Appeal stated: “The question for consideration is: is it possible to carry out the development covered by the permission having regard to that which has been done or authorised to be done”.
2. The present case was indistinguishable from Durham where it was held that the original permission was still capable of being implemented. The premises in the present appeal were still in existence; it remained physically possible to build an extension. If the premises had remained vacant throughout, the present argument against the permission on the ground of physical impossibility would have been unsustainable. It was difficult to accept therefore that intervening use as a bookshop — rather than vacancy — should be such as to render the original planning permission invalid.
3. With regard to the question of change of user, the council submitted that the use of premises as a bookshop fell within Class A1 and not within Class A3 of the 1988 GDO and that while such use could go one way (ie from A3 to A1), it could not lawfully be resumed without the grant of planning permission for a change of use back from A1 to A3 user. However, the permission of 1988 was for an operational development under section 57(1) of the Town and Country Planning Act 1990. It was for the “carrying out of building … or other operations”. It was not a grant of permission for a material change of use.
4. Further the court considered that both first instance declarations stood or fell together. The permission was to alter the premises by the erection of an extension and that was to be used in conjunction with a ground-floor restaurant.
Jeremy Sullivan QC and Helen Mountfield (instructed by the solicitor to Camden London Borough Council) appeared for the appellant planning authority; Anthony Porten QC (instructed by Antony Bowhill) appeared for the respondent, MacDonald’s Restaurants Ltd.
