Inspector granting planning permission for change of use of retail premises on ground that change constituting no threat to conservation area — Whether inspector misconstruing local policy permitting change of use only where such change positively enhancing area — Claim dismissed
The second defendant applied for planning permission to change the use of premises in a conservation area within a city centre from A1 retail use to sui generis use as an amusement arcade. The appellant local authority rejected the application on the ground that it contravened policy S8 of their draft local plan, which allowed changes from retail use only in exceptional circumstances. Under policy S8, it was for the developer to demonstrate that the proposal would positively sustain and enhance the viability of the primary shopping area. On appeal, the first defendant’s inspector allowed the application.
The local authority appealed under section 288 of the Town and Country Planning Act 1990. They claimed that: (i) the inspector’s findings that the proposed development would not cause harm to the viability of the shopping area was insufficient to discharge the onus of proof; and (ii) the inspector erred in law by failing to hold that policy S8 was a material consideration in accordance with section 54A of the Town and Country Planning Act 1990.
Held: The claim was dismissed.
1. As in all cases involving a challenge to an inspector’s decision letter, the letter had to be read as a whole. The inspector had correctly considered the provisions of the emerging development plan and had been correct in attaching limited weight to the provisions of policy S8 within that plan.
2. In attaching limited weight to the emerging plan, the inspector had been correct to consider the underlying objectives of the policy rather than its specific wording. He had identified the underlying objective as being to avoid harm to the viability of the primary shopping area and had clearly considered the proposal in terms of that objective, as well as considering conservation issues. He had taken all material facts into account and there was no error in his approach.
Richard Clayton QC and Christiaan Zwart (instructed by Sharpe Pritchard, London agent for Gloucester City Council) appeared for the claimants; Jeremy Morgan (instructed by the Treasury Solicitor) appeared for the first defendant; Richard Phillips QC and Hereward Phillpot (instructed by Hay & Kilner, of Newcastle-upon-Tyne) appeared for the second defendant.
Vivienne Lane, barrister
