Planning permission — Property used as retail shop — Applicant wishing to change use to provision of legal services — Planning permission refused — Test for Use Class A2 — Whether services provided principally to visiting members of the public — Inspector extending test to whether services appropriate to shopping centre — High Court view that error did not invalidate decision — Court of Appeal allowing applicant’s appeal — Inspector made fundamental error
K applied under section 288 of the Town and Country Planning Act 1990 to quash the decision of an inspector acting on behalf of the Secretary of State, where she dismissed an appeal by K, for the change of use of a retail shop at 304 High Road, Leyton, in the London Borough of Waltham Forest to a solicitor’s office within Class A2. K was a practising barrister who intended to change over to be a solicitor and practice in Leyton where there was a large ethnic community from North India whose languages he spoke. The property had been empty for several years and was a Class A1.
K purchased the property after receiving an assurance from a council official that planning permission for a change of use from Class A1 to Class A2 should not be a problem. But it was and planning permission for a solicitor’s office was refused. The Secretary of State dismissed an appeal against that refusal. That decision was upheld by the High Court which classified High Street solicitors’ offices as Class B1. It took that view that Class A2 must principally provide an over the counter service like a shop to members of the public who came in off the street: see [1994] 2 PLR 99. K appealed.
Held The appeal was allowed.
1. The issue was whether the proposed solicitor’s practice constituted professional services, but within Class A2.
2. To come within Class A2 a property must be used “to provide services principally to visiting members of the public”.
3. The inspector had erred in law in adding an extra test “that the services should be appropriate to a shopping area”. That added hurdle was not mere surplusage.
4. The test was wrong in law. Its inclusion had raised the threshold to whether the services to be provided from the property would “generate reasonable levels of pedestrian flow” in order to demonstrate appropriateness.
5. The evidence had not been assessed on the correct basis. Therefore it could not safely be said that the inspector would inevitably have reached the same decision if she had correctly directed herself in law.
6. The provision of legal services as such might come within Class A2. If an applicant could plausibly say that he intended to run an A2 solicitor’s office and planning authorities had no reason to disbelieve him and there were no countervailing planning considerations, all they could do was grant planning permission and wait and see whether services continued to be provided principally to members of the visiting public.
7. The possible introduction of an appointments system for clients did not in itself prevent a solicitor’s office coming within Class A2. Hairdressers often instituted a system of appointments, but were still covered by Class A2.
The applicant appeared in person; Mary Macpherson (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment; the local planning authority, Waltham Forest London Borough Council, did not appear and were not represented.
