Town and country planning – Certificate of lawful use or development – Mixed use – class F of part 3 of schedule 2 to General Permitted Development Order 1995 – Local authority refusing application for certificate relating to change of use of retail premises to flat – First defendant secretary of state allowing appeal by defendant landlord – Claimant tenant applying for order quashing decision – Whether “mixed use” having restricted meaning – Application dismissed
The claimant was the tenant of the basement, ground and first floor premises at 1-3 Thackeray Street, London W8 5ET, which it used for retail purposes as a hairdressing business. The second and third floors were in residential use. The third defendant was the claimant’s landlord. The second defendant, acting as agent for the third defendant, applied for a certificate of lawful use or development under section 192 of the Town and Country Planning Act 1990 in respect of a proposal to convert the first floor into a self-contained flat with separate access from an adjoining building with no internal connection between the ground and first floors. The application was made pursuant to class F of part 3 of schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 (SI 1995/418) (GPDO).
The claimant objected to the application on the basis that the proposal did not fall within Class because it did not involve “mixed use”. The fourth defendant local authority refused the application. An inspector appointed by the first defendant local authority allowed an appeal against that decision. The claimant applied under section 288 of the 1990 Act for an order quashing the inspector’s decision. He contended that, for purposes of class F, a “mixed use” was to be used in the technical sense used in case law and was restricted to a single planning unit which involved two activities neither of which was ancillary to the other: see Belmont Riding Centre Ltd v First Secretary of State [2003] EWHC 1895 (Admin); [2004] 2 PLR 8.
Held: The application was dismissed.
A proper interpretation of class F permitted a change from a single planning unit to up to three planning units, one in A1 use and two flats. To accept the restrictive meaning of mixed use advanced by the claimant would be inconsistent with the clear words of the GPDO in that it would not be possible for each of the two flats to be separate and self-contained, as they were required to be, occupied by separate households and at the same time for the flats and the A1 use to be physically and functionally related. In those circumstances, there was no basis for the restrictive meaning of mixed use as contended for by the claimant. The inspector had applied law correctly in concluding that functional and physical separation were required by the clear word of the GPDO and had correctly given the words their ordinary meaning, i.e. a number of uses in the same building: Burdle v Secretary of State for the Environment [1972] 1 WLR 1207; (1972) 223 EG 1597 considered.
Richard Langham (instructed by Public Access) appeared for the claimant; Richard Kimblin (instructed by the Treasury Solicitor) appeared for the first defendant; Reuben Taylor QC (instructed by Porter Dodson, of Taunton) appeared for the third defendants. The second and fourth defendants did not appear and were not represented.
Eileen O’Grady, barrister