Town and country planning – Planning permission – Material consideration – Claimant applying to quash decision of first defendant secretary of state to grant planning permission for replacement dwelling – Whether inspector failing to have proper regard to material consideration of possible reversion to Class B1 office use – Whether inspector giving adequate reasons for conclusions – Application granted
The third defendant owned a property known as 19 South End, London W8 5BU, which was a three-storey terraced building in the London Borough of Kensington, to the south of Kensington Square. The first defendant secretary of state granted planning permission for demolition of the building, construction of a replacement dwelling, and change of use from Class B8 storage to Class C3 residential following an appeal under section 78 of the Town and Country Planning Act 1990 against the refusal by the second defendant local planning authority of its application for planning permission. An inspector appointed by the first defendant held an inquiry and a site visit and found that, as a matter of judgment, such evidence as was available, that the change of use of the property to residential use would result in an inappropriate reduction in the range of uses available, was largely un-quantified and failed to provide strong economic reasons for refusing it.
The claimant lived in the adjacent terraced property. He had objected to the application for planning permission. He opposed the loss of commercial uses in the area generally, and at this property in particular, and the impact of the proposed development on his family and property. The claimant applied under section 288 of the 1990 Act to quash the inspector’s decision. He contended that the inspector had failed to have proper regard to the material consideration of a possible reversion to Class B1 office use; and failed to give any adequate or intelligible reasons as to his conclusions on that issue. The first and third defendants responded that the inspector ought not to have treated a possible reversion to B1 use as a material consideration because it was irrelevant in planning terms. Alternatively, if the inspector was entitled to treat a possible reversion to B1 use as a material consideration, his approach did not disclose any error of law, and he had given adequate reasons for his conclusions.
Held: The application was granted.
(1) The statutory duty on a planning decision-maker to have regard to “any other material considerations” under section 70(2) of the 1990 Act was expressed in broad terms. Ultimately, the question would depend upon the individual circumstances in the particular case. In Mount Cook Land Ltd v Westminster City Council [2003] EWCA Civ 1346; [2004] 1 PLR 29, Auld LJ set out a statement of the law. In the context of planning control, a person might do what he wanted with his land provided use of it was acceptable in planning terms. Whether any proposed use was acceptable in planning terms depended on whether it would cause planning harm judged according to relevant planning policies. In the absence of conflict with planning policy and/or other planning harm, the relative advantages of alternative uses on the application site or of the same use on alternative sites were normally irrelevant. Where an application proposal did not conflict with policy, otherwise involved no planning harm and included some enhancement, any alternative proposals would normally be irrelevant. On reading Auld LJ’s judgment in Mount Cook as a whole, the court did not consider that he intended to preclude consideration of a future potential use as a material consideration in an appropriate case.
(2) It was common ground that the inspector decided that the loss of a potential reversion to Class B1 ought to be treated as a material consideration. He accepted that Class B1 use was viable and would justify protection under the Local Plan Policy CF5 criterion as a medium-sized development in an accessible area, close to the town centre. Applying the principles in Mount Cook, the inspector was entitled to conclude that the grant of planning permission for residential use would result in “planning harm”, namely, the permanent loss of the potential reversion to Class B1 use as permitted development. Even if that conclusion was wrong, the inspector was entitled, in the exercise of his discretion, to treat this as an exceptional case because of the prior B1 use of the property, the continuing authorisation for B1 use under permitted development and policy CF5 protecting office use.
(3) However, it appeared from paragraph 56 of the inspector’s decision that he had misdirected himself in law in his consideration of the possible future reversion to Class B1 use as a material consideration. Aside from the inspector’s error in believing that the second defendants had issued a certificate of lawful use for Class B8 use, which it had never done, the inspector correctly identified the use of the land by reference to the objectively assessed use, rather than the subjective intentions or motives of the owner or occupier. But when considering the weight to be accorded to the material consideration of potential reversion to Class B1 use, the inspector should have considered, from an objective standpoint, what the likely future actions of the owner of the property would be. The inspector erred in disregarding that consideration. On the authorities and in the circumstances of this case, he was required to make an objective assessment of the likelihood of reversion to Class B1 use, when deciding the question of weight, and his decision indicated that he had not done so.
(4) There was substantial evidence at the inquiry that a reversion to Class B1 use from Class B8 use was likely, on commercial grounds, if planning permission for residential use was refused. The inspector did not refer to that evidence, nor did he give any reasons for rejecting it, though it was plainly relevant to the question whether or not a potential reversion to Class B1 use could be anticipated. The inspector had given minimal weight to the third defendant’s fall-back position that, if her application for change of use was refused, she would be able to change to residential Class C3 use under Class P of the General Permitted Development Order 2015, after a 4-year qualifying period, no later than January 2018 and prior to expiry of the right in April 2018. Finally, the inspector’s erroneous approach to the material consideration of potential reversion to Class B1 use might have affected the outcome of the appeals, and it would be inappropriate for the court to exercise its discretion not to quash the decision.
Richard Harwood QC (instructed by Mishcon de Reya) appeared for the claimant; Katrina Yates (instructed by the Government Legal Department) appeared for the first defendant; Paul Brown QC (instructed by Richard Max & Co) appeared for the third defendant; the second defendants did not appear and were not represented.
Eileen O’Grady, barrister
