England and Wales High Court (Administrative Court) Decisions

1. MR LOCKHART-MUMMERY QC: These are two applications made under sections 288 and 289 of the Town and Country Planning Act 1990 to quash decisions of an Inspector given by way of letter dated 25th July 1996. By this decision letter, the Inspector allowed two appeals, first, against an enforcement notice under section 174 of the Act, and secondly, a planning appeal under section 78 of the Act. The appeal premises are known alternatively as no. 359, or no. 359/361 Fulham Road, Chelsea, London, SW10. The enforcement notice alleged a breach of planning control consisting of the change of use of the premises to a café. The relevant component of the planning appeal arose from a refusal by the council of planning permission for the change of use from retail (Class A1) to restaurant take-away (Class A.3). On the enforcement notice appeal, the Inspector granted planning permission for the use of premises as a café, subject to conditions. On the planning appeal, he likewise granted planning permission for the change of use. (The planning application and appeal also involved a single storey front extension, and a single storey rear extension. These were uncontroversial in the appeal proceedings, and little turns on them in relation to these applications).

2. The background to the matter is as follows. The appeal premises consist of a double ground floor unit in the Fulham Road, which falls within the "core frontage" of the Fulham Road West Principal Shopping Centre, so designated in the applicants recently adopted Unitary Development Plan. It was common ground that the most relevant shopping policies of the UDP were as follows:-

3. S1: Normally to resist the loss of shop units and floorspace.

4. S14: To seek a concentration of shops in the core frontage of principal shopping centres.

5. S15: Normally to permit uses falling within Use Classes A2 and A3 in a principal shopping centre unless the proposal would threaten the character or function of the centre or would result in:

6. The development alleged in the enforcement notice, and the development for which planning permission was sought in both appeals, was the material change of use from a retail shop (A1) to restaurant use (A3).

7. The appeals were conducted by way of public inquiry, at which each party called two witnesses. In the context of these applications, the relevant witnesses were the planning witness for each party, namely Mr Thorncroft for the second respondent, and Mr Cassells for the applicant.

8. At the inquiry, and before the court, much of the debate centred upon the relationship between the change of use involved and the terms of UDP policy S15, set out above. The witnesses proceeded upon the basis that the change of use involved a breach of criterion (a) of the policy. Thus, at paragraph 3.7 of his proof, Mr Thorncroft stated:-

9. Later he stated:-

10. As it is put in the notices of motion (in my view, correctly):-

11. The proof of evidence of Mr Cassells set out the background giving rise to the enforcement notice and the planning appeal. He produced and referred to the officer's report which recommended the service of the enforcement notice. This advised that the change of use involved a conflict with, inter alia, criterion (a) of policy S15. The report referred to the precedent effect of allowing proposals such as these "within an area which is highly susceptible to change from Class A1 to Class A3". Two reasons were given for issuing the enforcement notice. The first referred to breaches of the relevant development plan policies. The second was as follows:-

12. The single ground of refusal of the planning application was as follows:-

13. I should make three further references to Mr Cassells' proof. First, he drew attention to the apparently unauthorised use - for A3 purposes - of three nearby units in the centre. He stated:-

14. Second, he was entirely clear that the present proposals conflicted with criterion (a) of policy S15. Third, the conclusions to his proof contained no express reference to the question of precedent.

15. Mr Cassells' evidence produced schedules of the mix of A1 and A3 uses in the principal shopping centre, of which the most recent derived from a survey made by the applicant in 1995. His evidence also referred (as I indicated above) to recent unauthorised changes of use. Further examination of these three premises indicated that one (no. 228/230) was the subject of an effective enforcement notice; one (no. 323) was currently the subject of inconclusive investigation, with enforcement action being considered; and the third was a "non-core" set of premises. Thus, in relation to these premises, the upshot was that there was no instance of a known breach of planning control in the core area in respect of which the applicant had any difficulty in enforcing against a breach of planning control.

16. In his decision letter, the Inspector defined the issues before him in the following terms:-

17. He continued in paragraph 8:-

18. In paragraph 9, he considered the status of the relevant policies, and concluded:-

19. He continued in paragraph 10:-

20. In paragraph 11, he referred to the details of the land use mix set out in the schedules, concluding overall that there had been little significant change in the balance of uses over the years. He continued in paragraph 12:-

21. In paragraphs 16-20 he considered the question of the impact of the proposals on residential amenity, and the question of conditions. He found the impact on amenity to be acceptable. He concluded in paragraph 21:-

22. By her notices of motion, Miss Robinson for the applicant mounts two main challenges to this decision letter, first, an alleged failure correctly to deal with the UDP policies and, secondly, a failure correctly to deal with the question of precedent.

23. Turning first to the question of the UDP policies, Miss Robinson takes three main points. First, that the Inspector has misinterpreted policy S15, by failing to understand that, for a change of use to comply with the policy, it must comply with criteria (a)-(f) as well as being such as not to threaten the character or function of the centre. Second, that the Inspector has failed to state whether he considered that the development complied with the relevant policies, or whether it did not comply with some or all of the policies but that an exception was justified in the circumstances of the case. It is alleged that there is a failure to give reasons in this regard. Third, that the decision was irrational if the Inspector concluded that the development complied with policy S15, having regard to criterion (a).

24. The correct approach to these issues is now well-established. Even prior to the introduction of section 54A of the Act, it was incumbent upon the decision-maker to make it clear, where planning permission is granted, whether the development complies or does not comply with relevant policies of the development plan: Stephenson v Secretary of State for the Environment [1995] 1 EGLR 178. However, this general principle must be applied in a common-sense manner. As Hoffmann LJ put it in South Somerset District Council v David Wilson Homes (1992) 66 P & CR 83 at p.85:-

25. Subsequent to section 54A, the requirement for sufficient clarity as to the standing of the development in relation to the development plan is enhanced. Where planning permission is granted, is it because the development complies with the development plan, or does not comply but material considerations nonetheless point to a planning permission? On these matters, I gratefully adopt the statement of principles set out by Mr David Keene QC (as he then was) in Spelthorne Borough Council v Secretary of State for the Environment (1994) 68 P & CR 211 at pp.214-215. In particular, that case draws a useful distinction as to the need for greater clarity where there was uncertainty as to the compliance of the proposals with policy, compared to the case where "... it must have been evident to all the parties from the outset that the appeal scheme was not complying with the local plan requirement...": p.215.

26. Turning to the first of Miss Robinson's development plan points, there is one matter that can be set on one side at the outset. Addressing criterion (a) of policy S15, there were two possible interpretations open to the Inspector. First, that a proposals for an A2 or A3 use should normally be permitted unless the proposal would result in the percentage of A1 uses falling below 75% of the total core ground floor units; secondly, that such a proposal may be permitted unless it would result in the percentage of A1 uses remaining below 75% of the total core ground floor units. Bearing in mind the phrase "would result in", the first of these might be described as a literal interpretation, the second as purposive. If the literal interpretation were adopted, the policy is manifestly self-defeating. It is apparent that all concerned in this matter - the applicant, the second respondent and the Inspector - adopted the second interpretation of the policy. In my judgment, the Inspector makes this clear in paragraph 8 of his decision by stating that "75% of the shops should be in A.1 use".

27. I do not accept Miss Robinson's first point. Subject to the above ambiguity (which is not an issue in this case), the policy is clear, simple, and was at the forefront of much of the evidence given as to the percentages of A1 and A3 uses. Both witnesses dealt at some length with the proportions of the relevant uses in the principal shopping centre over time. The Inspector must have been and - I find - was entirely clear that criterion (a) was not satisfied. Both the applicant and the second respondent contended at the inquiry that there was a breach of this element of the policy, with the second respondent contending that there should be an exception to or relaxation of the policy in the light of evidence that the use enhanced the vitality and viability of this shopping centre. Miss Robinson highlighted the phrase in paragraph 12 of the decision letter "I have also taken into account that policy S15 states that A3 uses are acceptable in principal shopping centres providing that the development would not threaten their character or function". In my judgment, it is entirely clear that the Inspector has not omitted to consider, and has not misinterpreted, criteria (a)-(f), and especially criterion (a). In this paragraph, he is separately addressing another part of the policy, namely the character and function of the centre.

28. I turn to Miss Robinson's second contention, in so far as it relates to policy S15(a). In my judgment, there was no need for the Inspector to give reasons why he found that the development did not accord with criterion (a). As it was rightly put by Mr Bedford appearing for the first respondent, there was no need for the Inspector to give reasons why he accepted something which was not in dispute between the principal parties and which necessarily flowed from a fact which was not in dispute. Is it, then, sufficiently clear as to why planning permission was granted, notwithstanding this non-compliance? In my judgment, the reasoning - to informed readers of this decision - is sufficiently clear. There were several factors which, on the evidence, the Inspector found as important. These included the more or less constant level of A1 uses over time, the agreed vibrancy of the centre at night, the special contribution of A3 uses to vitality and viability, which were spoken to by third parties as well as the second respondent, in the context of character, vitality, and the influx of people. In my judgment, it is clear that the Inspector is finding that, cumulatively, these factors justified the making of an exception to the policy, or outweighed the breach of one element of the policy.

29. The complaint in relation to policy S1 also fails, in my judgment. There is no doubt that the Inspector was fully aware of the policy, and its terms are referred to in paragraph 8 of the decision. The change of use from shop to restaurant is self-evidently in breach of the policy. In my judgment, the conflict with policy S1 was not one of the principal important controversial issues in the context of the inquiry as a whole, and accordingly no separate reasons were required for the grant of planning permission in breach of, or as an exception to, this policy.

30. Similar considerations apply, in my judgment, to policy S14. It is an aspirational policy and is, essentially, the converse of S1. A change of use from use as a shop is self-evidently contrary to the objectives of policy S14. In my judgment, no separate reasons were required for making an exception to the objectives of this policy, on the same basis as applies to policy S1.

31. I would add this. I do not believe that, in any event, the applicant has been substantially prejudiced by any failure expressly to refer in the concluding part of the decision letter to policy S1 or S14. Even if these policies had not been taken into account (which I have not found) I do not think that there is any real possibility that on a re-determination any different decision would have been reached, in the light of the main conclusions of the Inspector.

32. The complaint as to irrationality in relation to policy S15(a) does not, on my above findings, arise. Since I have found that he plainly recognised the proposals to be in breach of this criterion, his decision in this regard is perfectly rational.

33. I turn to the second main ground of challenge, which relates to the question of precedent. Miss Robinson promotes this complaint in two separate but related ways.

34. She contends, first, that the Inspector failed to have regard to a material consideration, namely, the unauthorised uses which had risen in the centre subsequent to the applicant's most recent land use survey figures for April 1995. I find this impossible to accept. This evidence was plainly before him, and I can find no basis for concluding that he ignored it, when he has plainly followed and analysed with care other parts of the evidence before him. This aspect of the evidence appears, in my judgment, to be one to which he ascribed little or no weight, as he was entitled to do. I am bound to say that the merits of the point, in the context of the inquiry, appear modest. The unauthorised changes of use, even on the assumption that they might not be enforced against, would be of little significance in the context of the centre as a whole. In my judgment, this was a point that was quite properly the subject of the general conclusion in paragraph 21 of the decision letter. I also accept Mr Bedford's submission that even if the Inspector failed to have regard to these unauthorised uses, there is no real possibility that on a re-determination the decision would be any different.

35. Miss Robinson's second line of attack under the heading of precedent is more substantial. She contends, in summary, that the question of precedent was a substantial point raised at the inquiry, nowhere mentioned by the Inspector. She contends that he failed to have regard to a material consideration, and has failed to give any, let alone adequate, reasons for rejecting the point. She contends that the question of precedent was a principal important controversial issue raised at the inquiry, on which a reasoned decision was required: Bolton Metropolitan Borough Council v Secretary of State for the Environment (1995) 71 P & CR 309.

36. I have referred above to the role that the precedent topic played in the documents and proofs of evidence before the inquiry. Additionally, there are two short affidavits before the court. First, the Inspector states that at the outset of the inquiry he defined what appeared to him to be the two main issues in the case, as subsequently set out in paragraph 7 of his decision. He asked the principal parties whether they agreed, which they did. He states that at no stage did the council's advocate suggest that precedent should be identified as a main issue. He adds that there was some cross-examination on the question of precedent, and that the topic was referred to briefly by both parties in closing submissions. The council's advocate, in an affidavit, states that the council saw the question of precedent as part of the first issue defined by the Inspector; she confirms that there was some cross-examination on the topic; and she produces evidence that she devoted part of her closing submission to the question of precedent.

37. Against this background, Miss Robinson advances six main reasons for contending that precedent had the status of a principal important controversial issue. She submits (correctly) that it was an express ground for the service of the enforcement notice; was referred to in the planning officer's report leading to the enforcement notice; was pursued by the applicant in evidence; was recognised and dealt with by the second respondent in evidence; was the subject of oral debate at the inquiry; and was pursued in the applicant's closing submissions.

38. I find it impossible to accept that the Inspector failed to have regard to a consideration which was, undoubtedly, material. In reality, Miss Robinson's proper attempts to enhance the status of the point, defeat any suggestion that the Inspector ignored it. I cannot possibly accept that this point, which was so clearly before him, was ignored by the Inspector.

39. The second ground of attack (failure to give reasons) is less straightforward to deal with. Whether, in any case, a topic or issue raised on appeal falls under the general heading of a principal important controversial issue in the terms set out by Lord Lloyd in the Bolton case must depend on an overall assessment by the court of all the material placed before it. The recent decision in MJT Securities Ltd. v Secretary of State for the Environment (1996) 72 P & CR 342 is an example where an issue (the uncontroverted evidence of the lack of alternative site for a petrol filling station) attained this status, and was not the subject of a reasoned decision.

40. Having carefully assessed all the material placed before the court, I find that the question of precedent was not one of the principal important controversial issues before the inquiry. Amongst other factors, I have borne in mind that the issue was not important enough to be separately specified in the grounds of refusal of the planning application, was not separately addressed by way of summary in the planning officer's proof of evidence, and was not identified by the planning authority as a separate main issue at the outset of the inquiry. The applicants seek to excuse this lack of separate treatment of the topic by contending that precedent was part of the Inspector's first issue. In my judgment, to the extent that this point may have substance, it only lends force to the conclusion that precedent was a strand, a subsidiary element, in the applicant's case. It was not, I find, a principal issue, and accordingly it was, in my judgment, adequately dealt with by the general conclusion in paragraph 21 of the decision letter.

41. For these reasons, each of these applications fails.

42. MR LOCKHART-MUMMERY QC: For the reasons given in the written judgment which has been handed down, each of these two applications fail.

43. MR COPPEL: On behalf of the first Respondent I ask that the first Respondent have his costs?

44. MR LITTON: My Lord, I cannot resist that application.

45. MR ALBUTT: There are no applications on behalf of the second Respondent.

46. MR LOCKHART-MUMMERY QC: The applications are dismissed and the costs of the first Respondent will be paid by the Applicant.