Change of use from Class A1 to A3 — Enforcement notice — Appeal — Whether inspector should rely upon figures submitted by the claimant or his own observations — Section 289 of Town and Country Planning Act 1990 — Appeal dismissed
The claimant operated a sandwich bar with planning permission for Class A1 (retail) use. In 2001, the claimant was served with an enforcement notice that alleged that the quantity of hot food sold, and hot and cold food consumed, on its premises amounted to a change of use from Class A1 to Class A3 (food and drink). The claimant’s appeal under section 174(2) of the Town and Country Planning Act 1990 was unsuccessful, and it was ordered to cease the unauthorised Class A3 use.
The claimant subsequently appealed, under section 289 of the 1990 Act, on the grounds that: (i) the inspector had erred in concluding that the peak times for the business equated with the sale and consumption of hot food on the premises, and had ignored evidence relating to the sales figures for cold food; (ii) the inspector’s site visits to the premises were at peak times only, and, as such, should not have been relied upon so as to undermine the sales and footfall figures adduced by the claimant; and (iii) the inspector ignored the guidelines, in C13/87, relating to Class A1 use, and was therefore wrong to conclude that the main purpose of the use was Class A3. It was submitted that, had he correctly analysed the available evidence, he would have found that the premises were a mix of A1 and A3 uses. Accordingly, he would have found that they contributed to, rather than detracted from, the local retail character, and further, or alternatively, no harm was being caused to the character and function of the local shopping centre.
Held: The appeal was dismissed.
On the evidence presented to the inspector, it was open to him to take the view that the premises were used mainly on a Class A3 basis, and his decision was therefore not irrational. The inspector made several visits to the premises, and he was right to place importance upon his own observations as well as examining the sales and footfall figures submitted by the claimant. His decision letter demonstrated that he had considered all the available evidence. Thus, his decision was correctly made on the totality of the evidence before him.
Robert White (instructed by Sharpe Pritchard) appeared for the claimant; John Litton (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendants did not appear and were not represented.
Vivienne Lane, barrister
