Shop located in residential area according to local development plan — Claimant council refusing planning permission for change of use to takeaway outlet — Inspector allowing appeal against refusal of permission — Whether inspector’s decision taken with regard to section 54(A) of Town and Country Planning Act 1990 — Section 288 of Town and Country Planning Act 1990 — Application dismissed
The second defendant owners of a shop applied for planning permission to change its use to that of a takeaway pizza outlet. The shop was located in what was described in the local development plan as a primary residential area, although in fact it had a more mixed use. The claimant council refused permission on the grounds that, contrary to policy S25(2)(i) of the local development plan, it would disturb the inhabitant of the flat above the shop. S25(2)(i) specifically states that takeaway food outlets will not normally be permitted where the upper floors of the property are in residential use unconnected with the business. The rest of Policy S25 deals with the amenity and character of the area in more general terms, although S25(1) states that takeaway food shops are permitted in mixed use areas. The planning inspector allowed the second defendant’s appeal against this decision. Her main areas of concern were: (i) the impact of the change of use upon the neighbours; (ii) the evening activity associated with the change of use; and (iii) the effect upon any resident of the flat above the shop. However, she concluded that all concerns raised by the claimant council could be met by the imposition of conditions.
The claimant asserted that, in breach of section 54A of the Town and Country Planning Act 1990, the inspector had failed to reach conclusions as to whether the proposed development was in accordance with the development plan as specified in R v Leominster District Council, ex parte Pothecary [1997] 3 PLR 91, or, alternatively, that she had failed to give reasons for these conclusions. They further claimed that if she had concluded that there was no breach of the relevant policies, then such a conclusion was perverse, irrational, or an error in law.
Held: The claim was dismissed.
The question for the court was whether the interpretation of the development plan policy, as adopted by the inspector, was a reasonable one in all the circumstances. The claimants had failed to address the inspector in relation to S25(1) of the development plan, so it was therefore reasonable that she should have failed to reach any explicit conclusion in that regard, and, as Policy 25(2)(i) had to be taken in conjunction with S25(1), it was understandably not complied with. The inspector understood the main issue to be the effect of the proposal upon the amenity of the flat and the neighbouring residential areas. She acknowledged the potential harm to the residents of the flat above the premises, but reasonably concluded that such harm could be minimised, or avoided, by the imposition of conditions. A council that fail to argue a point of policy before the inspector cannot expect to rely upon the inspector’s omission to deal with that point as raising an error of law, except in strong circumstances.
John Barrett (instructed by the solicitor to Sefton Metropolitan Borough Council) appeared for the claimants; Timothy Mould (instructed by the Treasury Solicitor) appeared for the first defendant Secretary of State; the second defendant did not appear and was not represented.
Vivienne Lane, barrister
