Material considerations — Planning history — Proposed change of use from language school to offices — Likely adverse impact on residential amenity — No special need shown for office use — Appeal dismissed — Finding that existing use likely to continue — Impact of office use similar to that of existing use — Whether inspector erred in having regard to circumstances in which permission granted for existing use
In 1981
planning permission was granted on appeal for the use of premises at 53
Woodbridge Road, Guildford, as a language school. The inspector who determined
that appeal found that the use would not affect the appearance of the property,
nor be detrimental to the amenity of the area and he held that on balance the
need for the school was sufficient to outweigh the loss of the residential
accommodation. He did not consider that such change of use would act as a
precedent for the expansion of office uses in Woodbridge Road, as the language
school was not an office use.
In 1990 the
respondents, General Education Ltd, applied for planning permission to change
the use of the premises to offices. The local planning authority, Guildford
Borough Council, refused permission on the grounds of detriment to amenity and
loss of the property for potential residential use. On appeal to the Secretary
of State for the Environment, the inspector dismissed the appeal, finding that
whereas it was very unlikely that the building would revert to residential use
if the appeal failed, the proposed office use would be harmful to the character
and appearance of the predominantly residential area. He accepted that the
impact of the existing use was similar and, in some respects, more pronounced,
but stated that this use was only allowed on the basis that the need for the
language school outweighed its disbenefits; there was no such special need as
would justify the proposed office use. On May 20 1991, Sir Graham Eyre QC,
sitting as a deputy judge of the Queen’s Bench Division, quashed the
inspector’s decision, holding that where the impact of the proposed use would
not be materially different from that of the existing use, which the inspector
had found was likely to continue, the historic reason for the existence of the
present use was irrelevant.
The Secretary
of State appealed.
The
inspector’s reasoning was logical and clear. Once it was established that the
language school had an adverse impact on the residential area, it was relevant
to consider why permission for that use had been granted. What weight to give
to that consideration was a matter for the inspector, not the court. He was
entitled to conclude that
that which was caused by the language school, the special need which prompted
the exception in favour of the language school was not available in aid of
offices: see pp 70F-71H and 73B-C. In 1981 the expectation was that the change
of use could not be used as a precedent for offices because use as a language
school is not an office use. Similarly, in 1991 the inspector recognised that
to allow offices where none was needed would be liable to constitute a
precedent for office use. These considerations supported his conclusion: see p
73C.
Decision of
Sir Graham Eyre QC reversed.
referred to in the judgments
Appeal against
decision of Sir Graham Eyre QC
This was an
appeal by the Secretary of State for the Environment against the decision of
Sir Graham Eyre QC (sitting as a deputy judge of the Queen’s Bench Division) on
May 20 1991 whereby he granted an application under section 288 of the Town and
Country Planning Act 1990 by General Education Ltd to quash a decision by an
inspector appointed by the Secretary of State, given by letter dated January 22
1991, whereby the inspector dismissed an appeal by the company against the
refusal by Guildford Borough Council of an application for planning permission
to change the use of premises at 53 Woodbridge Road, Guildford, to use as
offices.
(instructed by the Treasury Solicitor) appeared for the appellant, the
Secretary of State for the Environment.
(instructed by Atkins Wilson & Bell, of Guildford) appeared for the
respondents, General Education Ltd.
planning authority, Guildford Borough Council, did not appear and were not
represented.
following judgments were delivered.
SIR THOMAS
BINGHAM MR: I will ask Glidewell LJ to give the
first judgment in this case.
GLIDEWELL
LJ: The respondent company, General Education Ltd,
own premises at 53 Woodbridge Road, Guildford, in which, since 1978, they have
conducted a language school. They applied for planning permission to change
that use to use as offices. Guildford Borough Council, the local planning
authority, refused permission on two grounds:
01 The proposed use would seriously detract
from the residential character of the surroundings, and from the character and
appearance of the property itself.
02 The proposal is considered to be contrary to
Policy IC3 of the Surrey Structure Plan 1989 in that it will effectively lead
to the loss of this property for potential residential use.
General
Education appealed against that decision to the Secretary of State for the
Environment. The appeal was heard by an inspector appointed by the Secretary of
State. His decision letter was dated January 22 1991. On the second ground of
refusal he held in favour of General Education. Nothing now turns on this save
that reference has been made to the fact several times during the course of
argument. On the first ground, however, he concluded that the borough council
were correct to withhold permission and dismissed the appeal to him.
General
Education applied to the High Court under section 288 of the Town and Country
Planning Act 1990 to quash that decision. On May 20 1991 Sir Graham Eyre QC,
sitting as a deputy High Court judge, concluded that the inspector had erred in
his approach and quashed his decision. The Secretary of State now appeals to
this court.
I must say
something about the facts and the planning history of this matter before coming
to the decision itself. The relevant facts are conveniently referred to, as one
would expect, in the inspector’s decision letter. He said in para 5 of that
letter:
. . . I saw
that Woodbridge Road is a busy arterial route leading from the nearby Guildford
town centre. On the eastern side of the highway commercial and retail
properties extend northwards from the edge of the town centre towards No 53.
However, this predominance of business uses ceases at the junction with
Drummond Road and your clients’ premises lie within an essentially residential
area which stretches to the north and east of this junction. Whilst the houses
fronting Woodbridge Road are subject to noise and activity on the main road,
they appear to be satisfactorily used for residential purposes.
No 53 is
separated by one other property from Drummond Road. It thus lies within, but
only a short distance within, what the inspector has characterised as ‘an
essentially residential area’.
The history is
that no 53 ceased to be occupied as a dwellinghouse in, I believe, 1977. The
use as a language school started in 1978. An application was made in 1980 for
that use which had commenced to be allowed to continue. Guildford Borough
Council refused permission for the use to continue. There was an appeal against
that decision and another inspector, appointed to hear that appeal, gave his decision
on September 17 1981. He said:
I consider
that the main issue is whether the need for this school is sufficient to
outweigh the loss of residential accommodation.
He then
referred to the merits of the school and the useful service it provided, and he
said in para 5:
The proposed
use would not affect the appearance of the property and would not be
detrimental to the amenity of the area. I do not consider that such a change of
use would act as a precedent for the expansion of office uses in Woodbridge Road
as it is not an office use.
In para 7 he
concluded:
The arguments
in this case are in my view very finely balanced but I consider that the need
for this school is sufficient to outweigh the loss of the residential use of
this particular house. I regard the description of educational use in the
application as being too wide in scope and [I] am including a condition to
limit the use to a language school.
Subject to that
condition, he allowed the appeal and granted permission.
In the
decision of the inspector of January 22 1991, he considered first the loss of
the building for residential use and, as I have said, concluded that in favour
of the present respondent, General Education, on the ground that if the appeal
failed, nevertheless it was very unlikely that the building would revert to
residential use. He then went on to consider the first ground of refusal, that
is to say, the impact of the proposed office use on the amenity of the
residential area. In para 6 he said:
The proposed
offices would produce more comings and goings of persons and vehicles to the
premises than one would normally find in a residential area.
He then dealt
in the remainder of that paragraph with matters relating to traffic, car
parking, noise of vehicles and so on. In para 7 he said that the company were
willing to accept a condition limiting advertisements or any sign that clearly
would distinguish the premises from nearby residential premises, and in the
last sentence of that paragraph he said:
In the light
of the activity likely to be associated with the proposed use and the attendant
changes to the setting and appearance of the property I consider that the
proposed offices would be harmful to the character and appearance of the
predominantly residential area.
Of course, if
he had thought it proper to stop there, that would have been a conclusion which
led to him dismissing the appeal. But quite properly he did not stop there. In
para 8 he continued:
8. I accept
that the existing use of No 53 has a similar impact on the surrounding area and
in some respects, such as the comings and goings of students, it has a more
pronounced effect. However, this use was only allowed on the basis that the
need for the language school outweighed its disbenefits. In my judgment, there
is no such special need in respect of the current proposal. The register of
commercial property indicates there is no shortage of offices in or near the
town centre and there was no firm evidence that your clients’ desire to
centralise the administrative function could not be met by using some of this
accommodation. Consequently, the improved educational service could be achieved
by using other premises.
9. Whilst I
can appreciate your clients’ preference to use the company’s only freehold
property I am not convinced that this constitutes a special need which
overrides the proposal’s impact on the residential neighbourhood. In the light
of this impact the proposed offices conflict with the overall provisions of the
relevant employment policies of the Surrey County Structure Plan and the
Guildford Borough Local Plan and do not accord with the advice in Planning
Policy Guidance Note No 4. In reaching my conclusions I have also been mindful
that allowing this
similar developments in the residential area which the Council would find more
difficult to resist. Nevertheless, I have considered this proposal on its
particular merits. In my judgment the harmful impact on the character and
appearance of the area overrides my findings on the first issue and the Council
was correct in withholding permission.
For those
reasons he dismissed the appeal.
The learned
deputy judge’s reasons for his decision to quash the inspector’s decision are
contained in two passages in his judgment, the first starting at p 5D. The
judge quoted a sentence from para 8 which I have already quoted:
I accept that
the existing use of No 53 has a similar impact on the surrounding area and in
some respects, such as the comings and goings of students, it has a more
pronounced effect.
Sir Graham
Eyre then said:
On the face
of it, his finding as to harm to the character and appearance of the
predominantly residential area appears to proceed on a basis which ignored the
existence of the present use.
If I may say
so, that sentence clearly relates back, not to the sentence he has just quoted
from para 8, but the preceding conclusions in para 7.
The judge
continued:
However, when
the existing use was brought into account, he found that the impact on the
residential area would be similar and, indeed, may be more pronounced in
certain respects, on the basis of an earlier finding that the current use was,
in any event, likely to continue in the future. Accordingly, in the de facto
circumstances of the present and future situations, there would be no material
change.
Having regard
to these findings, it is difficult to discern how any harm to the character and
appearance of a residential area could be a factor in the decision. However, on
examining the genesis of the current use, which he extracted from the
inspector’s previous decision in 1981, he took the view that it was in place
only because in the previous case, nearly ten years before, the need for the
educational facility outweighed policy disbenefit.
In the
context of what change the residents would suffer from the proposed use, that
is to say the de facto situation, past reasons for its current existence
would appear to be nothing to the point. The fact that the question of need for
offices would not override alleged environmental disbenefits in this case
appears not to be germane having regard to the view he had formed that this
appeared that it was unlikely to occur. Accordingly, in comparison with the existing
use, environmental disbenefits would not flow from the proposed use.
Later, having
summarised the argument of Mr Howell, the deputy judge said at p 8E:
In a case
such as the present, the onus of persuasion, as it has been termed, was clearly
upon the planning authority to demonstrate why a planning permission should not
be granted and the inspector’s task was
identification of such demonstrable harm. The planning authority failed on the
main policy issue in relation to the protection of residential accommodation.
It was sought to demonstrate, in the absence of a proper comparison between the
existing use which would continue, and the proposed use, that harm would be
caused to the character of the residential area, whereas it was found that when
the de facto situation between the proposed use and the existing use was
introduced into the equation, no harm, and perhaps some benefit, would result.
I cannot, for
my part, see how, when the historical reasons for the existence of the present
use are brought into account, demonstrable equilibrium, or benefit, in
environmental terms becomes demonstrable harm to any interest of acknowledged
importance. The inspector was not approaching the issues on the correct basis
and had regard to a factor that left the de facto comparison unaffected.
But for the historical reason, which did not affect the nature, quality and
characteristics of the present use, the issue could only have been resolved in
favour of the applicants.
Mr Howell for
the Secretary of State started his most useful skeleton argument, an adjective
which I apply equally to that of Mr Holgate, with this paragraph:
The issue
raised by this appeal is whether, in a case where
(1) a proposed use will have unacceptable
environmental effects and
(2) a planning authority is comparing the
existing with the proposed use in order to determine whether the existing use
provides a reason why planning permission should none the less be granted for
the use proposed,
the planning
authority as a matter of law may only consider in making such a comparison the
relative environmental consequences of the existing and proposed use and may
not regard as material the circumstances in which planning permission was granted
for the existing use.
Mr Holgate was
inclined, at least at first, to submit to us that that was not the issue raised
by this appeal, indeed that the issue raised by this appeal was nothing like so
wide. But, in my view, for the reasons I shall seek to explain, that is a
proper way of formulating the issue.
Mr Holgate
submits — putting it shortly and of course nothing like as extensively as he
did — that the inspector was required to compare the impact of the proposed use
on the adjoining residential area with that of the existing use as a language
school: what Sir Graham Eyre called ‘the de facto use’. The inspector
concluded, in the first sentence at para 8 of his letter, that the impact of
the two uses was similar, if indeed the language school in one respect did not
have a more pronounced effect. Accordingly, submits Mr Holgate, no demonstrable
harm has been shown. It is established that, at any rate at the time when this
decision was being made, when section 54A had not been introduced by amendment
into the Town and Country Planning Act 1990, it was necessary for the planning
authority to be able to show, and there was a burden upon them to show to the
satisfaction of the inspector, that some demonstrable harm would be done. The
demonstrable harm that was relevant in the circumstances of this case was harm
to the amenities of the adjoining residential area.
Mr Holgate
submits that, the balance having been struck and no demonstrable harm thus
having been shown as a result of the inspector’s conclusion, permission should
have been granted. He goes on to submit that the planning history, that is to
say, the fact that planning permission was granted in 1981 because of the need
for the building to be used as a language school, did not and could not alter the
impact which the office use would have, nor the comparison between that impact
and the impact which the language school had on the residential area. Thus, Mr
Holgate submits, that factor is irrelevant, the history is irrelevant and the
reason why the planning permission was granted is irrelevant.
We have to
decide, and Sir Graham Eyre had to decide, whether the inspector made an error
of law. Under section 288 of the Act the court is empowered to quash the
decision of the inspector if it be satisfied that the decision was ‘not within
the powers of this Act, or that the interests of the applicant have been
substantially prejudiced by a failure to comply with any of the relevant
requirements in relation to it’. If an inspector has made an error of law, and
in particular if he has relied upon some consideration which as a matter of law
it is not open to him to take into account, that is not acting within the
powers of the Act. The argument with regard to not complying with the relevant
requirements is a reference to Mr Holgate’s submission that the inspector has
not given adequate reasons for his decision. It is commonplace that a
decision-maker in the position of the inspector must give such adequate and
understandable reasons, and if he does not and if, as will often follow as a
result, the applicant is prejudiced, that also may be a reason for quashing.
Coming back to
the error of law, in my view Mr Howell is right in suggesting that the error of
law can only be, as in effect Sir Graham Eyre at p 9 of the transcript of his
judgment found that it was, that the inspector had regard to an irrelevant
consideration, that is to say, the planning history, the reasoning for the 1981
decision. The inspector was in exactly the same position as was the planning
authority when they were making their decision. By the provisions of the Act he
was required to have regard to the provisions of the development plan and to
other material considerations, and it follows, of course, not to immaterial
considerations.
Mr Howell’s
submission is that, far from the consideration being an irrelevant one, it was
one which was indeed relevant and which was not an error of law but which, as a
matter of planning judgment, the inspector was entitled to take into account.
He analyses the inspector’s decision letter in this way. First of all, the
inspector considered whether office use as such would create a demonstrable
harm. At the end of para 7 of the letter he concluded that it would. ‘I
consider,’ he said, ‘that the proposed offices would be harmful to the
character and appearance of the predominantly residential area.’ Then he went on to consider whether, weighing
that harm against such harm as there was resulting from the existing language
school use, it could be said that the offices would create no greater harm, in
which case that of course would be an argument in favour of allowing the
appeal. He said in the first sentence of para 8 that he accepted that the
existing use had a similar impact, if
turns out to be crucial in this appeal: ‘However, this use was only allowed on
the basis that the need for the language school outweighed its disbenefits’.
In effect, Mr
Howell is submitting that the inspector is quite properly doing a weighing
process between the arguments for and the arguments against allowing this
appeal. First of all he has put in the scale against, the finding that the
office use would be harmful to the character and appearance of the area. Then he
considers whether to put in the scale on the opposite side, a weight relating
to the effect of the existing use. He says that on the face of it the existing
use has roughly the same impact and therefore the weight will presumably be
equal. But, he goes on to say, that weight results from a decision which came
about because of the established need for the language school. Then he says, is
there any such need for the offices?
That is the remainder of para 8 and the beginning of para 9. He answers
that, no; there is not. So the weight of the piece that he puts in the scale in
favour is substantially reduced, if indeed there is any of it remaining at all.
He then considers policies and the ‘thin end of the wedge argument’, as it can
be characterised, in the remainder of para 9. I will come back to that.
If that is a
proper analysis of the inspector’s reasoning, as I believe it to be, then it is
clear and it is logical. As a matter of law I, for my part, cannot see how it
can be said that the inspector was not entitled to take the reasoning for the
1981 permission into account. I say that, however, subject only to a last
argument of Mr Holgate’s on this part of the issue, which is this. As I have
already made clear, the inspector in 1981 concluded that there was likely to be
no amenity effect from the use as a language school and the only disbenefit he
was considering was the loss of housing. He considered there was such a
disbenefit, but he thought the need overrode it. Mr Holgate’s argument, as I
understand it, is that since the need was brought in to override the disbenefit
from a loss of housing, it has nothing to do with possible disbenefit from
impact on the amenity of the residential area nearby and therefore, for that
reason, is irrelevant.
Mr Howell
roundly characterised that submission as illogical. I would not go quite so far
as that. I would, however, say that I do not follow the process of reasoning.
If, in 1981, the inspector had then concluded, as the inspector his colleague
in 1991 did, that there was a disadvantage arising from the impact of the
language school on the amenity of the residential area, then he would put that
in the scales in addition to the loss of housing when considering whether to
allow the appeal in 1981. Who knows what conclusion he would have come to, but
he would have weighed those disbenefits against the need. Assuming that he
concluded still in favour, it would have been clear that the environmental
impact was something against which the need was weighed, and when it is established
that the language school does have an impact upon the residential area it is,
in my judgment, relevant to consider why the planning permission was granted in
the first place. It is not for us to decide what weight to give to that
consideration, but that the inspector was entitled to take it into account is,
in my view, clear.
There were two
other matters to which I say reference was made in the last main paragraph of
the inspector’s decision letter. The last was the passage in which he said that
‘the absence of special need may result in further applications for similar
developments . . . Nevertheless, I have considered this proposal on its
particular merits’ and it is clear that he did not take that into account in
his decision. Indeed, Mr Holgate does not object to that.
Finally, by a
respondents’ notice Mr Holgate has sought to uphold Sir Graham Eyre’s decision
on that ground that, though the inspector at the 1991 inquiry was referred to a
number of provisions in the relevant development plans, which he submits
positively supported this development, he made no reference to them. The
relevant plans were, at the time, the county structure plan, the existing local
plan for Guildford and a draft plan which, nevertheless, was a material
consideration to be taken into account. It is quite clear that in the detailed
submissions made to the inspector, reference was made to the area policies, but
Mr Howell has pointed out to us that all the policies which might have been
held to contain provisions in support of a development such as the change of
use to offices were all characterised by some such phraseology as ‘the planning
authority will take into account the impact upon the residential amenities of
the area’ or words to that effect. In other words, they were none of them
policies that positively pointed to the grant of permission in circumstances
such as this, and indeed I would be surprised if they had been. Therefore,
submits Mr Howell, it was sufficient for the inspector, having reached the
conclusion he did on the central issue of the impact of the office use on the
residential area, to deal with the policies quite shortly. He did deal with
them in the sentence in which he said:
In the light
of this impact the proposed offices conflict with the overall provisions of the
relevant employment policies of the Surrey County Structure Plan and the
Guildford Borough Local Plan and do not accord with the advice in Planning
Policy Guidance Note No 4.
That, submits
Mr Howell, is sufficient. It is not extensive, but he did not need to set out a
list of the policies. I agree with that submission.
For those
reasons I take the view that, unusually, Sir Graham Eyre has fallen into error
in taking the view that all the inspector was permitted to do was to make a
comparison between the impact of the office use and the impact of the language
school use and to make no reference to, or to place no reliance upon, the
reason for the 1981 permission. I find no error of law in the inspector’s
approach, nor do I find that his reasoning was defective.
Accordingly I
would allow this appeal and set aside the order made by the deputy judge.
LEGGATT LJ: In 1981 planning permission for a language school in a predominantly
residential neighbourhood was granted as a special case to meet a special need.
In 1990 the borough council refused permission for a change of use to offices
on the ground that it would seriously
upheld the refusal on the ground that the harmful impact on the character and
appearance of the area overrode his findings that the proposal did not cause an
unacceptable reduction in the housing stock or a harmful loss of educational
facilities. The deputy judge compared the existing use with the proposed use without
regard to the fact, which to the inspector had been determinative, that the
existing use was explained by special need. He therefore had no difficulty in
concluding that because use as offices would probably be no more
environmentally harmful than use as a language school, the change should be
permitted.
In my
judgment, the inspector was entitled to conclude that although the
‘demonstrable harm’ that would be caused by offices was similar to that which
was caused by the language school, the special need which prompted an exception
in favour of the language school was not available in aid of offices. In 1981
the expectation was that the change of use could not be used as a precedent for
offices because use as a language school is not an office use. Similarly, in
1991 the inspector recognised that to allow offices where none was needed would
be liable to constitute a precedent for office development. These
considerations all support the inspector’s conclusion that in this residential
area, whereas a need for a language school justified the grant of planning
permission for use as a language school, there is no such need for offices as
could justify a grant for use as offices.
I consider
that the inspector’s approach accorded with the development plan and took
account of such other considerations as were material, including the relevant
planning history, and he was entitled to conclude that the proposed office
development would conflict with both structure and local plan policies. The
deputy judge erred in deciding that the inspector should have ignored the
reason why planning permission was granted for use as a language school. The
inspector’s decision was unimpeachable and should be restored.
I agree that
the appeal should therefore be allowed.
SIR THOMAS
BINGHAM MR: I agree with both judgments which have
been delivered.
Appeal
allowed with costs of appeal and below; application for leave to appeal to the
House of Lords refused.
