Refusal of planning permission to change use from village public house to residential use – Local plan discouraging such applications unless business shown not to be viable – Whether decision letter vitiated by misreading parts of financial history – Whether inspector entitled to assess viability in light of modest aspirations of typical village publican
Upon its acquisition by the applicant in March 1996, The White Hart, a public house with substantial living accommodation, ceased to trade as one of two public houses operating in the village of Sherington, near Newport Pagnell, Buckinghamshire. Shortly afterwards the applicant sought permission to change the use to a single dwelling-house. The policy under the local plan aimed to encourage the retention of existing village shops and public houses unless it could be demonstrated that the business was no longer viable and that all means for its retention had been explored. The application was unsuccessful and the applicant appealed to the Secretary of State for the Environment. By his decision letter dated January 23 1997 the inspector concluded that the loss of The White Hart would result in that part of the village becoming almost entirely residential and that the increased uniformity of use would be significantly detrimental to the character of the area. He further found that the applicant had failed to demonstrate that The White Hart was no longer viable. That finding was subsequently challenged by the applicant on grounds largely directed at factual errors and an alleged misunderstanding of the notion of viability.
Held The appeal was dismissed.
1. The decision letter disclosed two factual errors when considering the applicant’s assessment of viability. The period over which the applicant’s predecessor had attempted to market the public house during the years 1993/1995 was in fact an unbroken period of 29 months and not, as stated in the letter, two interrupted periods totalling 21 months. The letter also failed to record a downwards revision of the net profit for 1995/1996 from £10,000 to £6,500 on a turnover of £55,000. However such an error, if not relating to a condition precedent or to the only available evidence, could not ground a challenge unless it affected a material consideration which had to be taken into account: see Scott v Secretary of State for the Environment November 22 1996. Neither error was material to the decision which would clearly have been the same if the precise marketing periods had been recorded. The financial report for 1995/1996 was but one of several scenarios from which the inspector derived a “consensus” that the public house was capable of profitable operation.
2. In assessing viability in the context of the local plan (which required all means to be explored) it was not an immaterial consideration to acknowledge that a person acquiring a village public house would typically be content with margins below normal commercial expectations given the relatively low acquisition cost and the opportunity to make income from other sources. That the public house could not be sold for the price of a comparable house was itself a sign that the planning restriction was having the desired effect.
Andrew Newcombe (instructed by Hewitson Becke & Shaw, of Northampton) appeared for the appellant; Alun Alesbury (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment; the second respondents, Milton Keynes Borough Council, did not appear and were not represented.
