Town and Country Planning (Use Classes) Order 1987 — Whether use as solicitors office for visiting members of public falls within Class A2 or Class B1 — Whether change of use material — Whether solicitor’s office is A2 or B1 use
The appellant
solicitor, having been given a verbal assurance from an officer of the council
that planning permission would be granted for the change of use from Class A1
to Class A2, purchased premises from which he proposed to operate as a legal
adviser. Subsequently, planning permission was refused. The appellant’s appeal
to the Secretary of State for the Environment, by his inspector, was dismissed
on the ground that the appellant’s prospective use did not fall within the
meaning of Class A2 of the Town and Country Planning (Use Classes) Order 1987,
but was a B1 use. That decision was upheld. The appellant appealed to Court of
Appeal, against the decision of the High Court upholding the decision of the
Secretary of State.
Where a
solicitor’s office provides services principally to visiting members of the
public, it will fall within Class A2(b) of the Use Classes Order 1987. Visits
by persons by prior appointment can be visits by the public. The inspector was
wrong in finding that the use was not within Class A2: see p43B. In considering
Class A2(b) there is no extra test as to whether professional services are
appropriate for provision in a shopping area: see p44.
referred to in the judgments
Appeal against
the decision of Mr David Widdicombe QC (sitting as a deputy judge of the High
Court)
This was an
appeal against the decision of Mr David Widdicombe QC (sitting as a deputy
judge of the Queen’s Bench Division), who had dismissed an application under
section 288 of the Town and Country Planning Act 1990, against the decision of
the Secretary of State for the Environment, by his inspector, dismissing the
applicant’s appeal against a refusal of planning permission: [1994] 2 PLR 99.
applicant, Kasturi Kalra, appeared in person.
Macpherson (instructed by the Treasury Solicitors) appeared on behalf of the
respondents, the Secretary of State for the Environment and Waltham Forest
London Borough Council.
following judgments were delivered.
STAUGHTON
LJ: Henry LJ will give the first judgment.
HENRY LJ: Mr Kalra tells us that he was a civil servant for 20 years and
then left to be called to the Bar. He was called to the Bar in 1984 and
practised in chambers for a number of years after that. He now wishes to become
a solicitor — it may be that he has already become a solicitor, I know not —
and hopes to practise in Leyton where there is a large ethnic community from
North India whose languages he speaks.
In the hope of
conducting his practice from the premises, he purchased premises at 304 High
Road, Leyton, after receiving an assurance from an officer of the council that
planning permission for a change of use, from Use Class A1 to A2, would not be
a problem. But it turned out to be a problem and planning permission for the
solicitor’s office was refused. He appealed to the Secretary of State. The
appeal was dismissed. He then applied under section 288 of the Town and County
Planning Act 1990. That came before Mr David Widdicombe QC, sitting as a deputy
High Court judge1. That appeal failed and he now appeals to us.
1
The
inspector’s decision letter addressed to the plaintiff reads as follows:
3. The appeal
proposal relates to the ground floor of one of a terrace of three-storey
properties lying to the eastern side of High Road, within the shopping area of
Leyton. It comprises a retail unit which is presently vacant; the two upper
floors form residential accommodation.
4. From my
inspection of the appeal site and surrounding area and from consideration of
all the representations made, I consider the main issue is the effect of the
proposal on the vitality and functioning of the Leyton shopping area.
5. I heard
that the development plan for the area is the Waltham Forest District Plan
1980, wherein Policy 4B states that, outside the main shopping frontages,
proposals to use shops for other purposes will be considered generally
acceptable subject to complying with other environmental planning standards. In
1983, following a survey of shoppers’ attitudes and public consultation, the
Council resolved to adopt revised shopping policies for its main shopping
centres in the form of Policy 7B.
6. I was
informed that the Waltham Forest District Plan will be superseded by the
Unitary Development Plan wherein Policy SHP5 states that within the secondary
shopping frontages of Walthamstow and the principal centres (of which Leyton
forms one), the Council will generally permit only shops (Use Class A1). In
addition, other uses appropriate to a shopping centre (Use Classes A2, A3) and
community uses, such as creches and aid centres, may be permitted as long as
the proposal would not result in the overall number of non-retail outlets threatening
the essential retailing function of the centre. Furthermore, the Council will
insist save in exceptional circumstances on a shop-style window being provided.
7. I heard
that the Council has adopted the Unitary Development Plan for development
control purposes and that it has recently been the subject of its
public local inquiry, wherein the objections contained in Appendix D of the
Council’s statement being lodged against the Policy. It therefore follows that
Policy SHP5 may not be adopted in its present format. However, as the shopping
policies within the Plan are up-to-date and consistent with the advice
contained in Annex B of Planning Policy Guidance 6, I have attached some weight
to them.
8. I saw on
my site inspection that the shopping area at High Road provides a primary and
secondary shopping area (the appeal site forming part of the latter), as
designated within the Unitary Development Plan, and also a fringe shopping area
located towards its northern end. I heard from the Council that the shopping
facilities within High Road serve the surrounding residential area, which
includes an ethnic population of between 15% to 20% and is one where car
ownership is low. Although the Council accepted that the centre was one of the
less vibrant of its principal centres, however, it argued that it contained a
number of specialist shops (some of which catered for the ethnic population)
and was capable of meeting the day-to-day shopping needs of the residents of
the area.
9. I heard
that you purchased 304 High Road in order to conduct a legal practice from the
ground floor of the premises, which would provide mainly legal aid advice to
members of the ethnic community on a range of matters including immigration,
housing, crime and matrimonial problems. You produced evidence which, you
submitted supported your opinion that a Solicitor’s office fell within the
definition of an A2 use under the Town and Country Planning (Use Classes) Order
1987 and that the present proposal would therefore comply with the Council’s policies.
Notwithstanding this, (sic) you argued that the nature of the work which
you propose to undertake would attract members of the community and enhance the
vitality of the shopping area.
10. The
Council disagreed and argued that the proposal had been determined on the basis
that the development constituted a B1 use due to the nature of the work
undertaken within a Solicitor’s office, most of which is conducted over the
telephone and by correspondence. Additionally, the fact that clients would be
seen on an appointment basis established, in the Council’s view, that the
development could not be considered as providing a service within the meaning
of a Class A2 use and would therefore conflict with its local policies, which
sought to maintain the vitality and functioning of its principal centres.
11. It
appears to me in order to establish whether, as you argue, the present proposal
would qualify as a Class A2 use, it would be necessary to show that the service
you intend to provide is one principally to visiting members of the public and
can be considered appropriate to a shopping area. In my opinion, the proposed
range of legal services would undoubtedly (due to your ability to speak north
Indian languages and being conversant with the ethnic traditions and practices)
provide a service to ethnic members of the community.
12. However,
although you intend to provide advice under the Green Form Scheme, this in
itself would normally only cater for a limited amount of initial advice.
Thereafter, even the type of work which you intend to undertake, would require
entering into a certain amount of correspondence and telephone calls in
conducting your clients’ cases. Moreover, in order to obtain clients’ full
instructions and represent them in court (which, despite your arguments to the
contrary would not, in my view, conflict with The Solicitors’ Practice Rules),
it appears to me that you would necessarily
early stages of establishing your practice (and thereafter only occasionally),
would your office be able to function in a way as to provide off-the-street
legal advice to visiting members of the public.
13.
Consequently, I am of the opinion that the proposal is unlikely to attract and
generate a reasonable level of pedestrian flows which, in my view, is an
indication of whether this use would be appropriate to a ground floor location
within a shopping area. Moreover, there would be no means of reasonably
ensuring, in planning terms, that your practice would not in the future
encompass or concentrate on conveyancing and commercial work, the majority of
which (you accepted at the hearing) is conducted by correspondence and the
telephone.
14.
Therefore, in the light of the aforementioned, and from the evidence at the
hearing, I am not satisfied that the service you intend to provide would cater
principally to visiting members of the public and be appropriate to a shopping
area. Consequently, I do not consider that in this instance your proposal can
reasonably be described as an A2 use within the meaning of The Town and Country
Planning (Use Classes) Order 1987.
I need not
read paras 15 and 16.
17. It is
therefore my view that were the present proposal permitted it would fail to
directly contribute towards the vitality and functioning of this principal
shopping centre. Consequently, it would undermine the overall objectives within
the Council’s policies of ensuring that only those services which contribute to
the vitality of, and are appropriate to, its shopping centres should be allowed
in order to ensure that principal centres such as Walthamstow continue to
fulfil their role in providing convenient and accessible shopping facilities to
meet the needs of shoppers.
18. In
reaching my decision, I have considered all the other matters raised in the
representations and at the hearing including your submission that the Council
should, as a result of its original advice, be estopped from arguing that the
present proposal constitutes anything other than an A2 use. Whilst I sympathise
with your position, it is not within the ambit of this appeal for me to advise
or adjudge whether any equitable remedies would be available to you.
Accordingly, none of these matters are of sufficient weight to alter my conclusions.
The appeal was
dismissed.
The principal
issue was into which use class under the Town and Country Planning (Use
Classes) Order 1987 (SI 1987 No 764) did Mr Kalra’s prospective user fall. The
Schedule to that order contains the definitions under Part A:
Class A1.
Shops:
Use for all
or any of the following purposes —
(a) for the retail sale of goods other than
hot food,
(b) as a post
office,
(c) for the sale of
tickets or as a travel agency,
(d) for the sale of
sandwiches or other cold food for consumption off the premises,
(e) for
hairdressing,
(f) for the
direction of funerals,
(g) for the display
of goods for sale,
(h) for the hiring
out of domestic or personal goods or articles,
(i) for the washing
or cleaning of clothes or fabrics on the premises,
(j) for the reception of goods to be washed,
cleaned or repaired where the sale, display or service is to visiting members
of the public.
Class A2.
Financial and professional services
Use for the
provision of —
(a) financial services, or
(b) professional services (other than health
or medical services), or
(c) any other services (including use as a
betting office) which it is appropriate to provide in a shopping area,
where the
services are provided principally to visiting members of the public.
Class A3. Food
and drink
Use for the
sale of food or drink for consumption on the premises or of hot food for
consumption off the premises.
Part B Class
B1. Business
Use for all
or any of the following purposes —
(a) as an office other than a use within class
A2 (financial and professional services),
(b) for research and development of products
or processes, or
(c) for any industrial process,
being a use
which can be carried out in any residential area without detriment to the
amenity of that area by reason of noise, vibration, smell, fumes, smoke, soot,
ash, dust or grit.
There follows,
and I need not read them out, the definitions of B2 general industrial, B3
special industrial Group A and Class B4 special industrial Group B.
The property
that Mr Kalra purchased had been a shop. It had been empty for several years.
Therefore, it was Use Class A1. Mr Kalra was advised by surveyors that the
solicitor’s use to which he intended to put that property was Use Class A2. He
consulted the planning section of the respondent council. His contemporaneous
note of the meeting with the council officer records:
Ask the
planning section, spoke to Mr Tremain after consulting. He said in principle no
problem in changing from A1 to A2.
Mr Kalra wrote
confirming that on June 5 1992. He addressed the letter to the director of
planning and economic development and marked it for the attention of Mr Tremain
and said:
Please refer
to our conversation on 29.5.92. I propose to buy the above property.
You informed
me that this property is listed for A1 use. I propose to open a solicitor’s
office at this address. You informed me that there will be no
that basis I am going ahead with the proposal to buy this property. Please
acknowledge the receipt of this letter.
The letter, we
are told, was not acknowledged or answered.
There is no
indication that the council ever resiled from the proposition that there would
be no problem in principle changing from a Class A1 use to Class A2 use, but
they were to challenge the fact that solicitor’s use was Class A2. The
council’s contention was, and has remained throughout, that it was Use Class B1
and that was the major issue between the parties at the planning inquiry below
and now before us. To complete the story, Mr Kalra completed his purchase of
the property in August 1992 when he made his planning application. The
application stated in terms:
Change of use
from retail shop to office for solicitor A2 use.
There has been
no previous decision on the point as to whether use as a solicitor’s office is
A2 use or B1 use or whether some are one and some the other.
Mr Kalra, in a
helpful skeleton, has put various citations from the text books before us. The
consensus among those is clear. The view taken by the text book editors is that
some solicitors’ practices but not all will qualify as a Class A use.
Therefore, it becomes a question of fact in each case. But here the deputy High
Court judge, expressly, and the planning inspector, by necessary implication,
both cast doubt on whether a solicitor’s practice could ever be a Class A2 use.
Looking at the wording of the use classes order, it is clear that for a
solicitor’s practice to qualify under Class A2 (b) ‘professional services (other
than health or medical services’ must be provided ‘principally to visiting
members of the public’. That restriction would seem to me to be intended to
extend to solicitors who base themselves in or close to shopping areas in the
hope of attracting clients who walk in off the street. ‘High Street solicitors’
is how one work describes those that it takes as falling within Class A2: see
Michael Redmond ‘Planning Uses and Use Classes 1989’ published by Estates
Gazette. Mr Redmond distinguishes between the High Street solicitor who, in
his view, qualifies as use A2 and commercial solicitors who are ‘less dependent
on visiting members of the public’ and so do not. It follows that if that
analysis is correct it would be a question of fact for the tribunal in each
case whether the Class A2 test is satisfied.
Standing back
from the question and looking at it as a matter of principal, I, for my part,
am in absolutely no doubt that the provision of legal services as such is or
may be appropriate to shopping centres. If one considers citizens’ advice
bureaux or law centres and asks the Class A2 question whether their services
are ‘provided principally to visiting members of the public’ the question must
be answered ‘yes’. They are public bodies. But if an individual seeks to
compete for that legal market on a profit-making basis — hedge lawyers as Mr
Kafka described them — he might not satisfy that A2 question equally.
I put that
question in that provocatively stark form for this reason. Mr Kalra clearly
wishes to be just such a solicitor. He describes his ambitions as being ‘a poor
man’s lawyer’ for the Indian ethnic community whose languages he speaks. He
does not intend to do conveyancing or commercial work and, having seen and
heard him, there seems to me to be no reason to doubt the genuineness of his
expressed aspirations nor the modesty of them. Nor is there reason to doubt
that the segment of the community which he seeks to serve requires user
friendly, cheap and convenient access to legal advice and so to justice. If Mr
Kalra does not qualify in the eyes of the law as an A2 use then it is hard to
see how or why any solicitor would so qualify.
Why then did
Mr Kalra not qualify in the inspector’s view? The inspector agreed that Mr
Kalra, from his shopping centre base, would provide a service to the ethnic
community. He found first that the legal aid restrictions on the Green Form
Scheme would limit what he could do and, if he succeeded at all, he would need
to run an appointment system to see clients and would have to spend an
increasing amount of time on correspondence and on the telephone. Thus,
presumably he would have to tell new would-be clients that they could not be
seen at once. I am not persuaded by that reasoning. First, if you have not the
time to see the visiting public without an appointment because you are
corresponding or telephoning for other clients who in their turn had walked in
off the street, I do not see why it should be said that the legal services you
provide are not ‘provided principally to visiting members of the public’ as
those clients originally were. Nor can the need for appointments be
significant. Hairdressers have them, yet they are Use Class A1. Just as you
time your shopping expedition to fit in with your hairdressing appointment, so
you will time it to fit in with your solicitor’s appointment. The judge treated
those findings as findings of fact justifying the conclusion that ‘visits by
persons with prior appointments’ are not visits by the public. In my judgment,
the fact of having an appointment cannot sustain that conclusion. There is no
reason to assume that those with appointments did not originally walk in off
the streets.
Nor do I find
it difficult, as the judge did, to imagine a solicitor’s office which qualifies
under Class A2. Indeed, a central part of Lord Woolf’s proposed reforms is to
encourage and to make cheaper and more convenient the access to justice,
particularly in small claims.
I would not
assume that the solicitors’ profession will abandon competition for the bottom
end of the market to the public bodies such as the citizens’ advice bureaux and
the law centres and whatever private para-legal entities emerge. It seems to me
that the profession should not be denied the possibility of ground-floor
shopping centre presence by any present short-comings in the Green Form Scheme.
Accordingly, I am not satisfied that the inspector’s above reasons expressed in
para 12 of her decision letter justify her finding that Mr Kalra’s proposal was
not a Class A2 use.
But there is a
more fundamental error of law than that identified by the judge which is not
the subject if any cross-notice appeal. The inspector in para 11 of her
decision letter said:
It appears to
me that in order to establish whether, as you argue, the present proposal would
qualify as a Class A2 use, it would be necessary to show that the service you
intend to provide is one principally to visiting members of the public and can
be considered appropriate to a shopping area.
I emphasise
those last words. The judge was to say about this:
However, I
think the Inspector in the present case did go wrong on a technical point. In
paragraphs 11-14 of the decision letter she considered, in addition to the
question of visiting members of the public, the question whether the proposed
use would be appropriate to a shopping area. In my view this latter requirement
only applies to item (c) of A2, ‘any other services’.
Breaking off
there, the learned judge was clearly right about that as the layout in the
schedule shows. I return to the judgment:
In the case
of items (a) and (b), financial and professional services, they are deemed to
be appropriate to a shopping area if the services are provided principally to
visiting members of the public. For items (a) and (b) that is the only
requirement which has to be considered.
I agree entirely
with what the judge has said up to that moment. He goes on, and here I take
issue with him:
But this
error does not invalidate this part of the decision. The proposed use was found
not to be appropriate to a shopping area, but the decision would have been the
same without this finding. I think it can be ignored as surplusage.
The judge was
clearly right that the inspector had inserted an extra test in relation to
deciding whether Class A2(b) was satisfied, that extra test being whether the
professional services were appropriate for provision in a shopping area. In my
view, that extra height added to the hurdle cannot be regarded as mere
surplusage. First, as the judge acknowledged, the test is wrong in law. Second,
by including the test the judge raised the threshold ‘services provided
principally to visiting members of the public’ to requiring also such services
to ‘generate a reasonable level of pedestrian flows’ in order to demonstrate
appropriateness.
Additionally,
in relation to the argument as to whether the added requirement was surplusage,
while the inspector had confined herself to the correct test in para 12 of her
decision letter, I have already said that, in my judgment, the reasoning there,
based as it was on the Green Form Scheme and appointments, cannot properly
sustain the conclusion that this intended use was not Use Class A2. More
fundamentally, here was an illegitimate raising of the requirements to satisfy
the Class A2 test. On each occasion, other than para 12, when she poses the question
and makes a finding on or relevant to the Class A2 test and whenever she refers
expressly or implicitly to that test she includes the illegitimate additional
requirement: see paras 11, 13, 14 and 17. It cannot, in my judgment, be safely
said that the inspector would inevitably have reached the same decision if she
had correctly directed herself in law even if her para 12 conclusion was
legally unassailable which, in my judgment, it was not.
Therefore, in
my judgment, this appeal should be allowed and the decision should be quashed.
PILL LJ: An important issue in this case is whether the appellants proposed
solicitor’s practice in premises on Leyton High Road constitutes professional
services within Class A2 of the Town and Country Planning (Use Classes) Order
1987. Provision of professional services when the services are ‘provided
principally for visiting members of the public’ comes within that class.
The issue
whether a solicitor’s practices come within that class and, if so, which of
them do has been much debated by academic lawyers and practitioners. It is an
important question. The defect in the inspector’s decision letter, in my
judgment, is that the issue is not squarely faced. It can be accepted that
there may be cases in which planning permission may be refused in shopping
areas even if the proposed practice were to be found to be within Class A2.
There may be cases in which planning permission may be granted, even though the
use is found to be outside Class A2 and within Class B1 Business Use.
The appellant
was entitled to a determination of whether his proposal came within Class A2.
That depends upon a construction of the wording of the relevant part of the
order in the context of the evidence. The inspector did not approach the issue
in that way. She stated at para 11 of her letter:
It appears to
me that in order to establish whether … the present proposal would qualify as a
Class A2 use, it would be necessary to show that the service you intend to
provide is one principally to visiting members of the public and can be
considered appropriate to a shopping area.
A dual test is
applied. The same test appears in para 13 in relation to pedestrian flows and
in para 14 before the conclusion that the proposal is not within Class A2 is
expressed.
There was
considerable evidence before the inspector of the local planning authority’s
policies as to what is ‘appropriate to a shopping area’. Such evidence may be
relevant to the eventual decision on an application. It does not determine
whether a particular proposal comes within Class A2. Appropriateness to a
shopping area is not a part of the definition of Class A2(b) on which a
determination was sought. There is a real danger that the inspector took
irrelevant material into account in her determination of that issue. The
inspector has not applied the correct test in concluding that the proposed
views fell outside Class A2.
I would quash
the decision on that ground, adding that it is not clear to me from the
decision letter whether the purpose of the paragraphs which follow para 14 is
to consider the proposal as a Class B1 Business Use or to reinforce the
purported findings on Class A2. If the decision is to be
in this court when the evidence has not been assessed on the correct basis by
the Secretary of State’s inspector as planning authority. Initially, that is a
matter for the Secretary of State upon a construction of the evidence in the
particular case and a determination by him. I would only say that I agree with
Henry LJ that the fact that a solicitor operates an appointment system for
clients is not in itself, as the inspector appeared to have thought,
determinative of the issue.
I agree that
the appeal should be allowed and the decision quashed.
STAUGHTON LJ: I agree that this appeal should be allowed for the reasons given
by Henry LJ. I fear that our decision will highlight a difficulty for planning
authorities if people are not aware of it already. It is a requirement of Use
Class A2 in the Town and Country Planning (Use Classes) Order 1987 that the
services in question are provided principally to visiting members of the
public. It is like the difference between an ‘on licence’ and an ‘off licence’
for the sale of wines and spirits. The practice of some solicitors will
certainly not be an ‘on licence’ practice. Their services are provided by
letter or telephone or fax or e-mail (if that is different). But at least some
solicitors do, I suppose, provide services principally to visiting members of
the public.
In a letter
written on behalf of the Law Society, S Durno said:
It is a
matter of fact that a solicitors’ office is covered by that definition and
should therefore be classified as A2.
I think he
meant, it is a matter of fact whether a solicitor’s office is covered by that
definition.
If the
planning authority grant planning permission in terms for an A2 solicitor’s
office, or if they make it a condition that a solicitor’s practice should be of
that description, how are they going to police it? It may not be easy to detect
and prove what proportion of the practice consists of the provision of services
to persons then and there present on the premises. That is a problem which is
inherent in the use classes order. It cannot be solved by denying A2 use to
everybody who wishes to run a solicitor’s law shop. That would be to rewrite
the order. If an applicant can plausibly say that he intends to run an A2
solicitor’s office, and if the planning authority see no reason to disbelieve
his assertion, and if there are no countervailing planning considerations, then
it seems to me that all they can do is grant permission and wait and see.
Appeal
allowed with costs.
