Respondents seeking planning permission for change of use of guesthouse to private dwelling – Applicant local planning authority refusing permission – Respondents appealing – Inspector finding continued tourist use of property not financially viable and allowing appeal – Applicant seeking to quash inspector’s decision – Whether inspector misinterpreting Development Plan policy – Whether failing to take material considerations into account – Town and Country Planning Act 1990 section 288 – Appeal allowed
The second respondents (B) were husband and wife who owned a large property which they ran as a guesthouse. They applied to Eastbourne Borough Council (the applicant) for a change of use from a guesthouse to a single private dwelling. The applicant refused planning permission and B appealed. In his decision letter, the inspector stated the main issue to be whether it was appropriate to retain the property for continued tourist use, taking account of the criteria set out in Policy TO8 of the adopted Eastbourne Borough Plan 1998. Policy TO8 provided that such a proposal would be judged on criteria including the “financial viability of a continuing or new tourist operation” of the property. The inspector took a commercial rate of return, measured it against the rate of return for the guesthouse and concluded that it was not a financially viable proposition. Accordingly, he allowed B’s appeal.
The applicant sought to quash the inspector’s decision pursuant to section 288 of the Town and Country Planning Act 1990 on grounds that: (i) the inspector misunderstood or misinterpreted the words “financial viability” in policy TO8 because he regarded it as excluding factors which led to a lower rate of return. The applicant contended that its evidence of “non-financial” factors which affected small guest houses was plainly relevant to the question of the level of the rate of return, and thus the issue of “financial viability”, but was ignored by the inspector; (ii) even if the inspector was right in his policy interpretation, the “non-financial” factors were material considerations, which the inspector should have taken into account outside the development plan concept; and (iii) if the inspector did take those material considerations into account he failed to give adequate reasons for dismissing them.
Held: The appeal was allowed.
The inspector’s interpretation of “financial viability” may not have been the only interpretation of those words, but it did not fall outside the range of meanings that those words were capable of bearing. However, given the importance of the “non-financial” factors to the applicant’s case, they required more than a general sentence in the inspector’s decision to show that they had been taken into account as non policy material considerations. The decision letter did not clearly indicate whether or not the inspector had accepted the applicant’s evidence that some guesthouses operated on lower rates of return. It could not be said that he took such a factor into account as a material consideration outside the strict terms of the policy.
Craig Howell Williams (instructed by Sharpe Pritchard) appeared for the applicant; James Maurici (instructed by the Treasury Solicitor) appeared for the defendants; B did not appear and were not represented.
Sarah Addenbrooke, barrister
