Town and country planning – Change of use – Enforcement notice – Appellant issuing enforcement notice alleging breach of planning control by material change of use of premises from Class C1 hotel use to mixed use as hotel and hostel – Planning inspector allowing appeal against notice – Whether inspector applying correct test for mixed use – Whether omitting relevant consideration when considering whether any change of use material – Appeal allowed
The appellant council issued an enforcement notice alleging a material change of use of premises in London W2, without planning permission, from their lawful use as a hotel within Class C1 of the Town and Country Planning (Use Classes) Order 1987 to a sui generis mixed use of a hotel and hostel. The lessee of the premises was a company of which the second respondent was the chief executive. The interested party owned the freehold.
The second respondent appealed to the first respondent, whose planning inspector allowed the appeal on the grounds in section 174(1)(b) and (c) of the Town and Country Planning Act 1990, namely that the matters alleged in the notice had not occurred or did not constitute a breach of planning control. The inspector found that there was no mixed use on the facts of the case and that, even if there was, any change of use that it involved was not “material”. In reaching those conclusions, she found that there were some elements of hostel use, including the presence of dormitories and/or communal or shared facilities, use predominantly by young people travelling alone or in groups, and the provision of limited services, with guests having to make up their own beds and some having to provide their own towels or hire them. However, she found that no part of the premises was used exclusively as a hostel or exclusively as a hotel, because the same rooms could be used for both purposes. She concluded that the current use of the premises had not altered the character of the use to such an extent so as to amount to a material change of use for which planning permission was required.
The appellants appealed under section 289 of the 1990 Act. They contended that the inspector had erred by asking whether there was exclusive hotel use in one part of the building and exclusive hostel use in another part, since a mixed use could exist where the different elements were not associated with particular parts of the premises. They also submitted that, in finding that any change of use was not material, the inspector had failed to have regard to the off-site effects of the current use on residential amenity. Those contentions were rejected in the court below: see [2014] EWHC 1248 (Admin). The appellants appealed.
Held: The appeal was allowed.
(1) If a hostel use were merely incidental or ancillary to a hotel use, it would be treated as the hotel use and would be within Class C1. However, the allegation in the enforcement notice was of a mixed use of the premises, with two separate primary uses of a hotel and a hostel. A mixed hotel and hostel use of that kind fell outside class C1 and was sui generis. In deciding whether the alleged mixed use existed, the inspector had erred by asking whether part of the premises was in exclusive use as a hostel and part was in exclusive use as a hotel. That approach represented an error of law since a mixed use could subsist where the different elements were not associated with particular parts of the premises. Had the inspector not fallen into that error, it was difficult to see how, in the light of her findings of fact, she could reasonably have reached any conclusion other than that there was a mixed hotel and hostel use as alleged. Although the question whether a mixed use existed was a matter of planning judgment, the factors identified by the inspector as showing an element of hostel use pointed strongly towards a finding of mixed hotel and hostel use: Panayi v Secretary of State for the Environment (1985) 50 P&CR 109 applied. It followed that the inspector’s rejection of a mixed use was legally flawed.
(2) When deciding whether there had been a material change of use, the test to be applied was whether there had been a change in the character of the use. In making a comparison with the present use of the premises, the inspector had taken into account both the actual previous use as a hotel and the range of permitted uses within Class C1. The appellants had advanced no ground of appeal in relation to the appropriate comparator. Proceeding on the assumption that the inspector was entitled to have regard to all the matters to which she did have regard, she had nonetheless erred by omitting a material consideration, namely the off-site impacts of the current use on the amenity of local residents. Concerns about such impacts, particularly from noise and disturbance, had permeated the appellants’ evidence before the inspector but she had not mentioned that issue when considering whether there had been a material change of use. Off-site impacts could not be dismissed as merely something that the inspector was permitted, but not obliged, to consider. The impact of the use on other premises was a relevant factor in assessing whether there was a change in the character of the use and, on the particular facts of the case, it was necessary for the inspector to consider it: Hertfordshire County Council v Secretary of State for Communities and Local Government [2012] EWCA Civ 1473; [2013] JPL 560; [2012] PLSCS 246 applied.
In light of the errors in the inspector’s decision, the matter should be remitted to the first respondent for reconsideration in the light of the court’s judgment.
Saira Kabir Sheikh QC and Isabella Tafur (instructed by the legal department of Westminster City Council) appeared for the appellants; Cain Ormondroyd (instructed by the government legal service) appeared for the first respondent Alex Goodman (instructed by direct access) appeared for the second respondent; Richard Turney (instructed by direct access) submitted written representations for the interested party.
Sally Dobson, barrister
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