Town and country planning – National planning policy framework – Commercial premises – Claimant applying for permission to challenge decision of planning inspector dismissing appeal against refusal of permission to convert commercial units for residential use – Whether inspector erring in law in dismissing applicability of paragraph 22 of national planning policy framework (NPPF) – Application dismissed
The claimant owned commercial units at 10-12 Regent Parade, Hockley, Birmingham. The second defendant local authority granted permission for the construction of six town houses, two duplexes and six class B1 commercial units at the site which was located within the Jewellery Quarter Conservation Area in Birmingham. After the commercial units were completed, the claimant applied for permission to convert them for residential use as it had been unable to sell or rent the premises. The second defendants refused that application and the claimant’s appeal was refused by an inspector appointed by the first defendant secretary of state. The claimant’s application for permission to challenge that decision was refused on the papers. However, the matter came before the court upon a renewed application for permission. It raised a point of broader significance about the relationship between paragraphs 22 and 51 of the National Planning Policy Framework (NPPF) in the context of applications to convert commercial units into residential units in conservation areas.
Paragraph 22 provided that planning policies should avoid the long term protection of sites allocated for employment use where there was no reasonable prospect of a site being used for that purpose. Applications for alternative uses were to be treated on their merits having regard to market signals and the relative need for different land uses to support sustainable local communities.
Under paragraph 51, local planning authorities were to identify and bring back into residential use empty housing and buildings in line with local housing and empty homes strategies and, where appropriate, acquire properties under compulsory purchase powers. They should normally approve planning applications for change to residential use and any associated development from commercial buildings where there was an identified need for additional housing in that area, provided there were no strong economic reasons why such development would be inappropriate.
Held: The application was dismissed.
(1) The inspector had correctly concluded that paragraph 22 of the NPPF was not directly applicable since the paragraph applied explicitly to allocated employment uses as set out in the relevant plans and the appeal site had never been so allocated. There was a dichotomy at the heart of the planning system which distinguished between ordinary decisions taken in respect of planning applications and decisions against allocations in plans requiring that land be used in a specific or a particular way. Paragraph 22 itself encouraged the planning authorities to perform regular reviews of the allocation which only made sense in the context of a prior allocation exercise. The concept of allocation, although not a defined term of art, was one which had a particular meaning when understood in the context of the NPPF. It was referring to the process of prior determination or designation of uses “allocated” to sites specifically included within the development plans, which was not the present case.
(2) Standing back from the NPPF, it was clear that paragraphs 22 and 51 addressed different but related matters and operated in parallel as complements. Paragraph 22 concerned the situation of a change of use from one which had, a priori, been allocated a specific employment use. It then laid down the criteria which a planning authority had to have regard to in deciding whether to permit a change of use away from employment. Paragraph 51 governed the situation of non-allocated uses. It also sought to identify the sorts of criteria that should apply to a planning decision but it was addressing a different situation to that covered by paragraph 22. Insofar as there was a difference, paragraph 51 provided a broader basis for permitting a change of use than would paragraph 22 which could be explained by the difference in nature between a restriction on use which came about by virtue of a deliberate prior policy decision (i.e. allocation) and a case where there was no specific prior policy decision.
Paragraph 51 provided that the authority should “normally” approve applications for change to residential use, thereby creating a presumption in favour of change. Where there was “an identified need for additional housing” in the area, the presumption applied and was only rebutted where there were strong economic reasons why such development would be inappropriate. The momentum implicit in paragraph 51 was evidently in favour of approval of a change of use. Paragraph 22 however was not as flexible. Unless there was no reasonable prospect of a site being used for an employment use, paragraph 22 did not apply. There was accordingly no in-built presumption in favour of approval of a change of use. But even when the pre-condition was met the authority, under paragraph 22, simply treated each application on its individual merits, balancing the pros and cons without any tilting presumption in favour of permission. The argument that paragraph 22 would provide a greater opportunity for change of use than paragraph 55, was not borne out by an analysis of its purpose, context or wording. That conclusion adopted the broad and purposive construction of the NPPF which the Court of Appeal endorsed in Suffolk Coastal District Council v Hopkins Homes Ltd [2016] EWCA Civ 168; [2016] PLSCS 90.
(3) Irrespective of the proper interpretation of paragraph 22, there was an evidential problem confronting the claimant in the inspector’s conclusion, by reference to the evidence, that there was a viable future for the site as commercial premises. The inspector did not view the appropriate, but unsuccessful, marketing efforts undertaken by the claimant to date as indicative that they would not be successful in the future. It followed that the pre-condition in paragraph 22 was not met. This was not a case where there was no reasonable prospect of the site being used for an employment purpose. The notion of “reasonable prospect” entailed a forward looking analysis and the inspector’s conclusion had done that.
Anthony Crean QC (instructed by Gowling WLG, of Birmingham) appeared for the claimant; Naomi Candlin (instructed by the Government Legal Department) appeared for the first defendant; The second defendants did not appear and were not represented.
Eileen O’Grady, barrister
