Planning permission — Material change of use — Intensification of existing use — Town and Country Planning (Use Classes) Order 1987 — Whether increase in floorspace amounting to material change of use — Whether inspector failing to take relevant matters into account — Application dismissed
The second defendant wished to increase the sales area in its supermarket. It applied to the claimants, as the local planning authority, for a lawful development certificate (LDC) to increase the sales floorspace by the conversion of existing back-up space or the installation of a mezzanine.
Planning permission had been granted, in 1972, for the erection of a shop with 50,000 sq ft of selling space on the site. Since then, around 60 applications had been made on the site, and subsequent permissions had greatly expanded the overall floorspace. The existing sales floor area was 83,300 sq ft. None of the implemented or extant permissions imposed any control on the level of retail floorspace by express condition.
The claimant refused the application for an LDC because, inter alia, the extension of the retail area would constitute a material change of use by reason of an intensification of the same use as previously existed. This fell outside the provisions of section 55(2)(f) of the Town and Country Planning Act 1990 and article 3 of the Town and Country Planning (Use Classes) Order 1987 (UCO), which authorised other uses only if they came within the same class.
The first defendant allowed an appeal by the second defendant against that refusal. Following an inquiry, the inspector did not find any condition imposing control on the level of floorspace, and, therefore, held that once the planning permissions had been implemented, the amount of floorspace to be used for sales purposes would not be restricted. He also held that, as a matter of fact and degree, the proposal in question would not lead to a material change of use.
The claimant, applied under section 288 of the 1990 Act, to quash that decision, contending that the inspector had failed to take relevant matters into account and had not asked himself the appropriate questions.
Held: The application was dismissed.
For uses within the UCO, the doctrine of intensification of an existing use was qualified by the rule that, if the intensified use remained within the same class as the former use, development would not be deemed to have taken place. It followed that, as long as the change did not take the use out of the relevant use class, it would be permitted by virtue of the UCO: Brooks & Burton Ltd v Secretary of State for the Environment [1977] 1 WLR 1294 applied.
The issue was whether the proposed development, resulting in an increase in floorspace, would amount to development requiring planning permission. That was a matter of fact and degree for the inspector, depending on the circumstances of the case. On the facts of this case, and having heard evidence from witnesses, the inspector had been entitled to reject the argument that the mezzanine would change the character of the store and to decide that no material change of use would arise.
Mary Macpherson (instructed by the solicitor to Eastleigh Borough Council) appeared for the claimants; Jonathan Auburn (instructed by the Treasury Solicitor) appeared for the first defendant; Vincent Fraser QC (instructed by Halliwell Landau, of Manchester) appeared for the second defendant.
Eileen O’Grady, barrister
