Change of use — Application to claimant council for retrospective planning permission — Inspector granting permission on appeal in order to attach regulating conditions — Conditions for purpose of regulating use rather than preventing use — Whether decision irrational — Claim dismissed
The second defendant, C, owned land that had historically been used for B2 (general industrial) purposes, including the repair of articulated vehicles. For a period of four years, C had used the site, without planning consent, to dismantle vehicles. The claimant council refused his application for retrospective planning permission, and he appealed to the first defendant Secretary of State.
The inspector allowed the appeal and granted planning permission, subject to conditions. In doing so, he concluded that if conditional planning permission were not granted, it was possible that the site would revert to the original B2 use. Overall, he considered that it would be less harmful to neighbouring occupiers to grant planning permission, and thus control the use of the site, than to allow it to revert to the previous unregulated B2 use, with the attendant harmful levels of noise and pollution. The Environment Agency had earlier advised the inspector that, prior to the grant of planning permission, a preliminary desk study should be conducted of the contamination potential, together with a site assessment of the pollution hazard. The inspector ruled that these conditions should take effect after the grant of planning permission.
The claimants sought to have that decision quashed, under section 288 of the Town and Country Planning Act 1990, on the grounds that: (i) the inspector had been wrong to conclude that he had no method of regulating the use of the site other than to grant the planning permission in respect of the new use, since reversion to B2 use was a change of use that would need planning permission, which could include regulating conditions; and (ii) if the conditions suggested by the Environment Agency had been complied with, their effect would have precluded the new use of the site, and it was irrational for the inspector to hold that conditions that would in effect preclude use could be complied with once permission for that use had been granted.
Held: The claim was dismissed.
Section 57(4) of the 1990 Act made it clear that planning permission was not required where land that was the subject of an enforcement notice was returned to its original use. Although the notice had not been served, the inspector had therefore been correct to surmise that it would be served if planning permission were not granted. The inspector was therefore correct in concluding that the only way to enforce conditions on the use of the site was to grant the new planning permission in respect of the change of use. The claimants had misunderstood the nature of the conditions suggested by the Environment Agency. They were not intended to prevent the use of the site as contemplated. Therefore, implemention of the conditions following the grant of planning permission, rather than prior to it, was not irrational. The inspector had been justified in adjusting the terms of the draft conditions to reflect the fact that the use had already commenced.
John Barratt (instructed by the solicitor to Sefton Borough Council) appeared for the claimants; Robert Palmer (instructed by the Treasury Solicitor) appeared for the first defendant.
Vivienne Lane, barrister
