Planning permission — Unitary development plan — Inspector granting planning permission for change of use from retail to mixed use — Whether inspector misinterpreting policy S15 — Whether inspector failing to consider implications of grant of permission — Claim dismissed
The claimants applied, under section 288 of the Town and Country Act 1990, to quash an inspector’s decision to grant the second defendant planning permission for the change of use of part of ground-floor premises situated in a shopping centre from retail use to mixed-retail and non-retail use, in the form of a restaurant, a teashop and a gelateria. The premises were defined as a local centre for the purposes of policy S15 of the unitary development plan (UDP), which permitted, subject to certain exceptions, only retail shops at ground-floor level. Criterion C of policy S15 provided that the total length of frontage in the non-retail use at street level (including any outstanding permissions) should not exceed 30% of the total designated frontage of the centre. It was common ground that this figure had already been exceeded.
The inspector identified the main issue as whether the proposal would be detrimental to the vitality of the shopping centre as a result of the loss of retail frontage and a harmful concentration of non-retail uses. He granted permission subject to six conditions, including that the front part of the ground floor should be refurbished as an Italian delicatessen (the retail area), so that passers-by would continue to regard the premises as a shop.
The claimants argued that the inspector had erred in law by misinterpreting policy S15 and by failing to consider the implications of granting the permission.
Held: The claim was dismissed.
The inspector had considered all the relevant circumstances and had been entitled to reach his decision. The claimants had erred in looking at one sentence in the decision letter in isolation and putting words into the inspector’s mouth. The decision letter was to be read as a whole, and it was clear that the inspector had recognised that the 30% figure had already been exceeded and that the planning criteria had not been fully satisfied. He appreciated the significance of that fact, as was reflected in the conditions subsequently attached to the grant of permission.
The criteria set out in policy S15 were for guidance only, and were not absolute. The 30% limit was merely a benchmark figure. The decision as to whether to grant planning permission was a matter of planning judgment for the inspector, and he had been entitled to conclude that an exception to the UDP was justified.
The inspector had been required to consider only the matters put before him at the inquiry and the claimants had not argued that potentially harmful changes could result from the grant of permission. Moreover, even if the claimants had alleged a defect in the imposed conditions, it would not be right to quash the decision unless clear evidence existed that the defect would cause real, rather than theoretical, problems.
Stephen Morgan (instructed by the solicitor to Harrow London Borough Council) appeared for the claimants; Paul Brown (instructed by the Treasury Solicitor) appeared for the first defendant; David Smith (instructed by Zeckler & Co) appeared for the second defendant.
Eileen O’Grady, barrister
