England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		31/10/2013

Timothy Corner QC :

INTRODUCTION

1. This is a challenge to a planning appeal decision dated 11 September 2012 by the Secretary of State's Inspector, Mr Christopher Bowden. The Applicant challenges the decision, pursuant to section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") on the basis of the Inspector's handling of criteria 1 and 4 within the policy SS6 (C) of the Westminster Unitary Development Plan ("UDP").

THE DECISION

2. The appeal before the Inspector was against the refusal by the Local Planning Authority, Westminster City Council ("the Council") of the Applicant's application for planning permission for the change of use of the basement and ground floor of 95 Praed Street, London W2 1NT ("the appeal site") from retail (Class A1) to a bank (Class A2).
3. On 31 March 2011 another Inspector, Mr Richards, had dismissed the Applicant's appeal against an enforcement notice in relation to the same use of the appeal site. The Applicant subsequently made a planning application for this change of use, and it was the Applicant's appeal against the Council's refusal of planning permission that came before Mr Bowden. In what follows references to the Inspector are references to Mr Bowden and paragraph references are to paragraphs of his decision letter, unless otherwise stated.
4. The Inspector reached his decision after an informal hearing and site visit, both of which took place on 17 July 2012.
5. In his decision, after having referred to certain procedural matters, the Inspector said at paragraph 5 that the main issue was

"the effect of the change of use on the retail character and function of the Praed Street District Centre."

6. At paragraphs 8 and 9 the Inspector referred to the crucial policies in this case, namely CS 20 of the Core Strategy, and SS6 of the UDP;

"(8) CS Policy CS 20 seeks to ensure that the needs of customers and retailers across the City are met through retention of the number of shops and the overall amount of retail floor space. It says that existing A1 retail will be protected throughout Westminster except where the Council considers that the unit is not viable, as demonstrated by long -term vacancy despite reasonable attempts to let.

(9) UDP Policy SS6 relates specifically to District Centres. Its aim is to enhance their vitality and viability by maintaining their predominantly retail function, whilst accommodating other town centre uses in appropriate locations. Specific criteria relate to non-A1 uses in secondary frontages (which includes the whole of the Praed Street District Centre). These are considered further below."

7. At paragraph 9 the Inspector referred to the aim of Policy SS6 as referred to in the UDP (set out below), and at paragraph 10 the Inspector found that "these policy approaches" were consistent with the London Plan, and with the National Planning Policy Framework,

"…which calls upon local planning authorities, in the context of promoting the vitality of town centres, to set policies making clear which uses will be permitted in secondary as well as primary shopping frontages."

8. At paragraph 11 the Inspector said

"As regards CS Policy CS 20, the appellant submitted evidence that the premises had been vacant for some 2 ½ years before the appellant took the lease in 2007. Although the fact that the appellant took the lease may indicate some attempt to let, there is no information (e.g. by way of advertising or marketing material) to support a view that efforts were made to let the premises for retail purposes or that the premises were, are or otherwise would be unviable as retail unit. In the absence of such evidence, the mere fact of vacancy is not decisive."

9. Having thus considered CS 20, the Inspector went on in the following paragraphs to deal with the criteria of SS 6 (C).
10. He dealt with criterion 1 thus;

"(13) Again, and with reference to criterion 1 (not harming vitality or viability etc), there is no dispute that banks are, in principle, an appropriate town centre use that can complement the retail function by providing services to shoppers. In this case, while use of the premises as a bank may have increased such matters as investment, employment and footfall in a sustainable location compared to the previously vacant unit, I am not persuaded that this contribution would necessarily be greater than the lawful retail use of the premises. Similarly, while the proposal may accord with the CS Policy CS 12 aims for NWEDA by promoting and sustaining economic activity, for example, the lawful use of No 95 as a retail unit would also have the potential to deliver economic benefits.

(14) The Design and Access Statement submitted with the application says that the bank's services to its patrons are "purely advisory" and that the current operation "is not a bank per se but functions on a consultancy basis advising people on investments, mortgages and other financial matters." At the Hearing, the appellant said that it provided a full banking service and that the bank has plans to expand in the UK. Either way, while accepting that the bank contributes to diversity by providing a service of particular interest to a community some of whose members live locally, I am not persuaded that the branch at No 95 would attract an appreciably wider public or help to maintain to a significant degree the attractiveness of the District Centre as a shopping destination.

(15) Moreover, while the bank's location next to the Moroccan consulate offices (Nos 97/99) may have customer advantages, I am aware that these premises are also not in their current lawful use. This point is considered further below. The appellant represented that, if change of use to 82 were approved, any bank or another A2 use could occupy the premises. That may be so, but I have no information to suggest that occupation by other than the existing bank would be likely in the foreseeable future.

(16) I agree that the appearance of the premises would be improved by the traditional shopfront already permitted (which the appellant said would be in place some 4-5 weeks from the date of the Hearing) and by a window display (which could be secured by condition). This would address concerns about dead frontage but would not overcome other concerns about the effect on the vitality and viability of the District Centre. The proposal does not therefore meet criterion 1."

11. The Inspector then considered criterion 2 and could not reach a firm conclusion as to whether the proposal would breach it. At paragraph 19 he said that

"…the Council's survey was expressly on the basis of the actual rather than lawful use of units while the appellant sought to reflect authorised uses. The Council's approach accords with the view of the previous Inspector that 'there are significant problems in excluding unauthorised non-A1 uses…Some changes of use may have become immune from enforcement, or would be acceptable within terms of the existing policy.' I appreciate that the appellant has endeavoured to clarify matters by reference to the Council's planning and enforcement records but it is apparent from discussion at the Hearing that uncertainties and disagreements remain. There are also some particular issues relating to treatment of premises adjacent to the appeal site. I return to these below."

12. He then dealt with criteria 3 and 4 at paragraphs 21 onwards;

"(21) Criteria 3 and 4 deal with concentration of non-A1 uses and consecutive non-A1 uses respectively. There are 11 units in the parade. The Council says that five of them (treating the appeal site as A2) are in non-A1 use and that, on this basis, No 95 is in a run of four units in non-A1 use. The appellant argues that only two of the eleven units (again treating the site as A2) are in non-A1 use and that No 95 is flanked by premises that should be treated as A1.

(22) The difference between the parties again turns essentially on whether the assessment reflects the actual or lawful use of the premises. I have noted above the previous Inspector's view of the approach in the context of criterion 2. Of particular relevance are the units immediately adjacent to the site (No 93 and Nos 97/99). On the former (a café), it appears that "enforcement investigations are ongoing" as to change of use from A1 to A3. However, the outcome is unclear at this stage. On the latter (Moroccan consulate offices), the Council refused permission for office (B1) use in August 2011. An appeal against that decision has been submitted but it would not be appropriate to speculate on the outcome of the process or of any subsequent action. I appreciate that, in December 2011, the Council itself considered that Nos 97/99 should be treated as A1 for the purpose of the proposal now before me but it has since revised that view.

(23) That said, I am not convinced that non-A1 use of the site leads or adds to an unacceptable concentration of such units in the parade as a whole, taking account of the Council's confirmation that Nos 89/91 (described by the previous Inspector as "a tanning salon") is in A1 use. The proposal would thus not breach criterion 3.

(24) However, on the basis discussed above, I consider that the proposal would breach criterion 4 by resulting in more than three consecutive non-A1 units in the parade. At the Hearing, it was represented that the appellant should not be penalised for the unauthorised use of premises by others. I understand that point but, given the uncertainties relating to adjacent units, I share the view that this decision should reflect the current situation on the ground. As the Council has acknowledged, there would be no breach of this criterion if Nos 97/99 were ultimately returned to retail use."

13. The Inspector set out his conclusions on the main issue he had identified at paragraph 5 as follows;

"(25) In conclusion. The clear aim of development plan policy is to protect Class A1 uses throughout the City of Westminster and to enhance the vitality and viability of its District Centres. I have seen no firm evidence that retail use of No 95 is unviable; it is not evident that A2 use of the property confers greater economic or other benefits than the authorised A1 use, or otherwise contributes more to vitality and viability; and non-A1 use of the unit results in an excessive number of consecutive non-A1 uses in the parade, as matters currently stand. It also seems likely that office and residential development under way to the north of Praed Street will add to the importance of the retail function of the District Centre.

(26) Taking the above matters together, and having regard to the previous Inspector's observation (which is mine too) about the progressive effect of changes of use on the retail character of the District Centre, I consider that the proposal is damaging for the reasons discussed. The installation of the approved shopfront, and addition of a window display, would be beneficial but would not overcome the harm. Neither would the suggested enhancement of the CA, considered below.

(27) I therefore conclude that the change of use has a materially harmful effect on the retail character and function of the Praed Street District Centre. As such, it conflicts with the objectives of CS Policy CS 20 and of UDP Policy SS6."

14. The Inspector then considered the issue of the effect of the proposals on the Bayswater Conservation Area, found that it would be neutral, and reached the final conclusion that the appeal should be dismissed.

RELEVANT POLICIES

15. In dealing with the main issue of the effect of the change of use on the retail character and function of the Praed Street District Centre, the most relevant policies were Policy CS20 of the Westminster Core Strategy, and Policy SS6 (C) of the UDP.
16. Policy CS20 of the Core Strategy provides so far as is relevant;

"Existing A1 retail will be protected throughout Westminster except where the council considers that the unit is not viable, as demonstrated by long-term vacancy despite reasonable attempts to let."

17. Policy SS6 of the UDP is headed "POLICY SS6: THE DISTRICT CENTRES" and provides so far as is relevant;

"(C) Secondary Frontages:

(Includes all the Praed Street District Centre)

Proposals for uses within A2 and A3 or other non-A1 town centre uses at ground-floor level in the Secondary Frontages will be permitted where;

1. the proposal would not harm the vitality or viability, or character or function of the parade, frontage or centre

2. the total length of Secondary Frontage in non-A1 use at street level would not exceed 45%

3. the proposal must not lead to, or add to, a concentration of non-A1 units in any individual frontage or parade

4. the proposal would not result in more than three non-A1 units located consecutively in a frontage………"

18. Paragraphs 1.8 and 1.9 of the UDP give guidance on how to use the UDP. So far as material they provide as follows;

"(1.8)…. Policies are set out in the following way

a. aim: what we want to do

b. policy: how we are going to do it

c. policy application: any tests or special circumstances we may apply

d. reasons: why we are doing it.

(1.9) Policies are set out in bold, lower case letters, and can be identified by the initial letters of the chapter and the policy number……"

19. I have already set out the relevant part of policy SS6 itself. The "Aim" is set out at paragraph 7.67 of the UDP;

"To enhance the vitality and viability of the District Centres by maintaining their predominantly retail function, whilst accommodating other town centre uses in appropriate locations."

20. Paragraph 7.69 gives guidance as to "Policy application". It states:

"The introduction of non-A1 uses into the District Centres will not be permitted if they would have a detrimental effect on the vitality or viability, or character and function of the centre or any part of the centre. Examples of detrimental effects include: creating a concentration of non-A1 uses, weakening a concentration of specialist shopping; weakening local convenience shopping; creating dead frontage; reducing the attraction of the centre to shoppers; threatening the viability of individual shops by effectively isolating them from other shopping facilities; and introducing unacceptably high levels of activity. The balance of A1 uses and non-retail uses should be such as to maintain the attractiveness of the centre to both shoppers and retailers."

21. Further guidance in relation to Praed Street District Centre is given in para 7.78;

"Praed Street is an unusual shopping centre, being outside the CAZ but having many of the characteristics of the CAZ. It is on the edge of the Paddington Special Policy Area and is therefore subject to a large amount of redevelopment on its northern boundary. The amount of retail floorspace and shoppers is increasing as a consequence. ……The City Council wishes to balance the uses within this centre so that it best serves the needs of current and future shoppers….The current mix of uses in Praed Street and its character and function mean that the normal hierarchy of Core and Secondary frontages as prescribed in PPG 6 does not apply to Praed Street. Therefore the whole of Praed Street District Centre has been designated as Secondary Frontage."

22. In the "Reasons" section, it is stated at paragraph 7.83 that Secondary Frontages are

"…considered to be the most suitable locations for non-A1 town centre uses such as restaurants and bars…., banks, estate agents, or advice centres. In such locations, these uses can provide a service and contribute to the vitality of the centre without compromising the centre's retail character and function. In the Secondary Frontages the aim is to balance the shopping and non-A1 uses, and avoid harmful concentrations of non-A1 uses in order to maximise the vitality and viability of the Centre."

LEGAL PRINCIPLES

23. There was agreement about the general legal principles to be applied to a case such as this.

a. A challenge to an Inspector's decision can only be made on a point of law. In the context of a challenge under section 288 of the 1990 Act, the major grounds of challenge are as set out in Seddon Properties v Secretary of State for the Environment (1981) 42 P&CR 26 at page 26.

b. Whilst the application of policy in any particular factual circumstances is a matter of planning judgement, the interpretation of planning policy is a matter for the Court; see Tesco v Dundee City Council [2012] PTSR 983.

c. A decision maker ought to take into account a matter which might cause him to reach a different conclusion from that which he would reach if he had not taken it into account. "Might" in such circumstances means a "real possibility" that the decision maker would reach a different conclusion if he did take that consideration into account. If the judge concluded that the matter in question was "fundamental to the decision" or that it was clear that there was a real possibility that the consideration of the matter would have made a difference to the decision, he was thus enabled to hold that the decision was not validly made. But if the judge was uncertain whether the matter would have had this effect or was of such importance in the decision-making process, then he did not have before him the material necessary for him to conclude that decision was invalid. Even if the judge had concluded that he could hold that the decision was invalid, in exceptional circumstances he was entitled nevertheless, in the exercise of his discretion, not to grant any relief; see Bolton MBC v Secretary of State [1991] JPL 241 at page 249.

d. Decision letters must be read in a straightforward manner without excessive legalism or exegetical sophistication; Clarke Homes Ltd v Secretary of State (1995) 66 P&CR 263, at 271-272; and the Court should look broadly at the Inspector's findings and reasoning and not focus on the minutiae; Dartford BC v Secretary of State [2012] EWHC 634 (Admin) at paragraph 20.

e. The principles applicable to challenges based on inadequacy of reasons were set out by Lord Brown in South Buckinghamshire DC v Porter (no2) [2004] 1 WLR 1953, paragraph 36.

"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospect of obtaining some alternative development permission, or, as the case may be their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."

f. It will only be in very rare cases that it would be appropriate for the Court to exercise its discretion to allow a party to raise new material in a section 288 application. It would not usually be appropriate if the new argument would require some further findings of fact and/or planning judgement; see R (Newsmith Stainless Limited) v Secretary of State [2001] EWHC Admin 74.

24. Further, following E v Secretary of State for the Home Department [2004] QB 1044, at paragraph 66, which was applied in the planning context in R (Connolly) v Havering LBC [2010] 2 P&CR 1, a mistake of fact will provide a ground of challenge if the following criteria are made out;

a. The mistake is as to an existing fact, including a mistake as to the availability of evidence on a particular matter.

b. The fact or evidence is "established" in the sense that the correct position could have been shown by objective and uncontentious evidence.

c. The appellant (or his advisors) was not responsible for the mistake.

d. The mistake played a material (not necessarily decisive) part in the tribunal's reasoning.

GROUNDS OF CHALLENGE

25. The Applicant raised the following grounds of challenge, both relating to the Inspector's analysis of the proposal's compliance with criteria within UDP Policy SS6 (C).
26. First, it is said that the Inspector erred in dealing with criterion 1, in essence because he took the view that it was necessary for the Applicant to show that the bank use would have a greater benefit to the vitality and viability/retail character and function of the District Centre than the existing lawful A1 use. The Applicant argued that the Inspector failed to apply properly criterion 1, which is concerned with whether a proposal would harm the vitality or viability, or character or function, of the centre. What the Inspector did was to apply a test of whether the Applicant's proposal would enhance the vitality and viability or character or function of the Centre, not whether it would harm it.
27. The Applicant's second ground concerned the Inspector's treatment of criterion 4. It was said that the Inspector erred in the following ways, any of which vitiated his analysis in relation to criterion 4;

a. In the circumstances of the present case, the Inspector should have based his judgement on whether or not criterion 4 was satisfied on the lawful uses of the various properties, as opposed to their current use.

b. The Inspector's judgement about criterion 4 was based on a mistake of fact, namely the existence of an appeal against the enforcement notice served in relation to the Moroccan consulate at 97/99 Praed Street. The Applicant argued that the requirements of E v Secretary of State for the Home Department (cited above) were met, so that the decision should be quashed.

c. The Inspector's reasoning for his decision to use current uses as opposed to lawful uses was defective. I deal with this submission as the same time as (a) above.

28. The First Defendant, the Secretary of State, contended that the Inspector did not err in relation to either criterion 1 or 4 as argued, and that in any event the decision should not be quashed, applying the Bolton case above. The Secretary of State contended that if the Applicant could show that the Inspector had erred in relation to both criteria 1 and 4 of SS6 (C) there was no real possibility that the decision would have been any different, because the Inspector had also found that the application breached policy CS20, and his conclusions in relation to that policy were not challenged by the Applicant. If the Applicant could show an error by the Inspector in relation to only one of criteria 1 and 4, there was a further reason why there was no real possibility of a different decision if that error had not been made. That was that all the criteria in SS6 (C) had to be met, and an error by the Inspector in relation to one of the criteria still left in place his sound conclusion that one of the other criteria had been breached, as well as CS20.

ANALYSIS

Criterion 1

29. I begin by considering what is required in order to satisfy the criterion. The words of the criterion tell us that the criterion is satisfied if the proposal would not harm the vitality or viability or character or function of the centre. It is true that the aim of policy, as contained in paragraph 7.67 of the UDP (quoted above) is to enhance the vitality and viability of District Centres. However, that is the aim. The policy itself, which as paragraph 1.8 of the UDP says, is how the aim is going to be achieved, requires only that the proposal should not cause harm. Mr Whale for the Secretary of State agreed that this was how the Inspector had to apply the policy criterion.
30. So far as the Applicant's challenge to the Inspector's findings on criterion 1 is concerned, the question is whether the Inspector applied the criterion properly and gave adequate reasons for his conclusions.
31. Mr Reed for the Applicant argued that most of what the Inspector said at paragraphs 13-16 about criterion 1 is concerned with whether the Applicant's proposal for bank use would bring enhancement or improvement to the centre. That is undoubtedly right. At paragraph 13, the Inspector said that he was not persuaded that the contribution of a new bank use at the appeal site would "necessarily be greater than the lawful retail use of the premises" and that while the proposal might accord with other policy objectives by promoting and sustaining economic activity, the lawful use of the appeal site as a retail unit would also have the potential to deliver economic benefits.
32. Paragraph 14, also, is substantially about whether the bank use would be an improvement over retail use in terms of fulfilling the aims of policy.
33. Mr Reed also drew my attention to paragraph 25. As he submitted, the second sentence of that paragraph expressed in short form the Inspector's views about the three main areas of policy that were in issue; CS20 of the Core Strategy, and criteria 1 and 4 of SS6(C) of the UDP. In the first clause of that sentence, where the Inspector said he had seen no firm evidence that retail use of No 95 was unviable, he was clearly dealing with CS20. The second part of the sentence, between the two semi-colons, is concerned with whether A2 use would be an improvement over A1 use, and not whether A2 use would cause harm.
34. Mr Whale said that it was unsurprising that the Inspector dealt in detail with whether the A2 proposal would enhance the vitality and viability and character and function of the centre, because that was the way the case was put by the Applicant in its representations.
35. However, Mr Whale contended, it was clear from the decision that the Inspector had properly understood criterion 1. Further, he had applied it, and given reasons for concluding that the Applicant's proposal would breach the criterion. Mr Whale relied particularly on the first sentence of paragraph 13, which the Inspector began by referring to criterion 1 ("not harming vitality or viability"). Further, he drew my attention to paragraph 14, where in the last sentence the Inspector said that he was not persuaded that the bank branch at No 95 would "attract an appreciably wider public or help to maintain to any significant degree the attractiveness of the District Centre as a shopping destination."
36. Again, at paragraph 16, the Inspector said that installation of the shopfront that had been permitted, together with a window display, would improve the appearance of the premises, but that "would not overcome other concerns about the effect on the vitality and viability of the District Centre", before concluding that the proposal "does not therefore meet criterion 1."
37. Finally, the Inspector's language at paragraphs 26 and 27 was couched in terms of harm. At paragraph 26 he said that taking together the matters he had discussed in previous paragraphs, and having regard to the concerns identified by the previous Inspector, Mr Richards, shared by himself, about the "progressive effect of changes of use on the retail character of the District Centre", he considered the proposal was "damaging." At paragraph 27, he concluded that the change of use would have "a materially harmful effect on the retail character and function of the Praed Street District Centre".
38. I have concluded that the Inspector did not err in his analysis of criterion 1. It cannot be said that he was unaware of the fact that the criterion is concerned with harm. That is evident from the beginning of paragraph 13.
39. It is true that much of the reasoning at paragraphs 13-16 is concerned with enhancement, and that a conclusion that the proposal will not enhance the centre is not the same as a conclusion that the proposal will harm it. However, the Inspector was dealing, as he had to do, with the case made by the Applicant. Further, the Inspector did say (paragraph 14) that that he was not persuaded that a bank at No 95 would "maintain" the attractiveness of the Centre as a shopping destination, and (paragraph 16) that the new shopfront would not overcome "other concerns about the effect on the vitality and viability" of the Centre. That is the language of harm, in my view.
40. Further, it is important to read the rest of the decision letter. Although he went on to find no conflict with criteria 2 or 3, he did find a breach of criterion 4. He then reached his conclusions at paragraphs 25-27. It is clear from those paragraphs that he considered the proposal was damaging, and (see paragraph 27) that the change of use would have a materially harmful effect on the retail character and function of the Centre. A harmful effect on the retail character and function of the Centre is central to criterion 1.
41. I think the Inspector did, in fact, give adequate reasoning for his view that the proposal would have a harmful effect on the character and function of the Centre and would breach criterion 1. He was clearly concerned about the progressive effect of changes of use on the retail character of the Centre, and he had found that A2 use of the appeal site would result in an excessive concentration of non-A1 uses, contrary to criterion 4. He was entitled to take these matters into account in assessing whether the proposals would harm the retail character and function of the Centre, and his conclusion that such harm would be caused meant that criterion 1 was breached.
42. I think the Inspector's discussion of whether the proposals would enhance the vitality and viability of the Centre has to be seen in that context. If the proposals had made a positive contribution to vitality and viability greater than retail use, that might have been a factor to set in the balance. However, he found that the proposals did not have such an effect.
43. The decision letter could have been clearer. I think that a difficulty in applying policy SS6 (C) is that criterion 1 concerns the issues at the heart of the policy. The decision letter might have been clearer had the Inspector considered criterion 1 after considering other criteria, which is what Inspector Richards did on the 2011 enforcement appeal decision.
44. Nevertheless, I have come to the conclusion that on reading the decision letter as a whole, the Inspector did understand and apply criterion 1, and he did give adequate reasons for deciding that the proposals would conflict with it.

Criterion 4

Using lawful or current uses as the basis for assessment

45. I deal first with the Applicant's contention that the Inspector erred in law by basing his conclusions about whether the appeal proposal would result in more than three non-A2 units located consecutively in a frontage on current uses, and not lawful uses.
46. The Applicant contended that it was lawful uses that should be examined. This was crucial to its case, because of the Moroccan consulate next door. The lawful use of the Moroccan consulate was A1. If the criterion 4 assessment were based on lawful uses, changing the use of the appeal site to a bank would not breach the criterion, because there would not be three consecutive non A1 properties. If, on the other hand, the assessment were based on current use of properties, changing the use of the appeal site to a bank would result in a breach of the criterion, because there would be more than three consecutive non-A1 uses.
47. Mr Reed for the Applicants made clear that he was not contending that lawful uses must always be the basis for a criterion 4 assessment. As he said in his skeleton argument, the policy enables the decision maker to reach a conclusion as to whether the current or lawful use should be taken as the appropriate use, depending on the factual context of any particular unit or units being considered in the assessment.
48. However, he said that lawful uses should have been used in the present case, and it was unlawful for the Inspector to do otherwise. This was because examining current as opposed to lawful uses unfairly penalised his clients for the unauthorised use by the Moroccan consulate of 97/99. Further, in a case such as this, where there were two adjacent properties, each subject to an appeal for non-A1 use, "the Inspector's approach penalised the first application that came up for decision…"
49. I do not think the Inspector acted unlawfully in deciding to base his assessment on current as opposed to lawful uses. He took account of the Applicant's point that such an approach would penalise the Applicant for others' unauthorised uses. However, he decided to examine current uses (see paragraph 24) "given the uncertainties relating to adjacent units."
50. In my judgement, the Inspector's approach was lawful and he gave adequate reasons for it. There were, as he said, "uncertainties relating to adjacent units." Those uncertainties are referred to in paragraph 22, and touched on also in paragraph 19, where the Inspector was dealing with criterion 2.
51. No 93 was a café, but it appeared that investigations were "ongoing" as to the change of use from A1 to A3, and the outcome was "unclear at this stage." In other words, as was confirmed to me at the hearing, there were investigations to determine whether the change of use was lawful or not. In those circumstances, where the lawful use was not clear, it is hard to see how the Inspector could have proceeded otherwise than on the basis of current uses.
52. In relation to 97/99, the Moroccan consulate offices, the Inspector noted at paragraph 22 that the Council had refused permission for a change of use to B1, and that an appeal had been submitted, but said that "it would not be appropriate to speculate on the outcome of the process or of any subsequent action." The Inspector was here recognising that the outcome of the appeal process could not be known. Further, in mentioning "any subsequent action" he must have been referring to the enforcement action to prevent continuance of the B1 use, which the Council could commence were the Moroccan consulate to lose its appeal. If the Moroccan consulate lost its appeal, the Council would have to decide whether it was expedient to take enforcement action, and if it did so, the consulate would be able to appeal against such action.
53. The Inspector was right to point to uncertainties about the properties on either side of the appeal site. The lawful use of the café was uncertain and still being investigated. Further, although the lawful use of the Moroccan consulate was known, the outcome of the appeal process was uncertain and it could not be known whether in the event the consulate lost (or did not pursue) its pending appeal successful enforcement action would be taken to force the discontinuance of B1 (consulate) use.
54. In view of those uncertainties, the Inspector's decision to base his assessment on current uses was understandable and adequately reasoned. It is notable that Mr Richards, the Inspector who determined the Applicant's enforcement appeal in 2011, took a similar view about the right basis on which to proceed.
55. I make two further points. First, Mr Reed argued that the Inspector's approach would penalise the first of the two appeals, that of his clients and that of the Moroccan consulate, that came up for decision. But that would only be so if the second appeal failed. If, as in fact happened, the second appeal to be determined, namely that of the consulate, succeeded, the result of examining lawful or current uses would be the same.
56. Secondly, Mr Reed drew attention to the last sentence of paragraph 24, where the Inspector recorded the Council's acknowledgement that there would be no breach of criterion 4 if Nos 97/99 were ultimately returned to retail use. He said that this sentence could not stand as reasoning to support the Inspector's decision to base his assessment on current as opposed to lawful uses. I agree. However, as I have said, the Inspector had elsewhere given sufficient reasons for using current uses.
57. Overall, there were sound practical reasons for using current uses as the basis for assessing compliance with criterion 4 and the Inspector's approach was reasonable and adequately reasoned.

Mistake of fact

58. I now turn to the second basis on which the Inspector's analysis of criterion 4 was challenged. It is said that he made a mistake of fact in relation to the appeal by the Moroccan consulate. The alleged mistake was as follows. In his first witness statement in the current proceedings, Mr Hans Martin for the Applicant stated (paragraph 5) that he had made enquiries before and after issue of the Inspector's decision about the consulate's appeal. During the appeal process he had checked the Council's website, which indicated that there was an "appeal lodged", but that no decision was available. He had also checked the Planning Inspectorate's website, but found no information on it with respect to 97/99 Praed Street or the appeal lodged in respect of it. However, on 15^th October 2012, after the appeal decision in the present case had been issued, Mr Stillman, a colleague of Mr Martin, telephoned the Council and was told that the appeal had never been validated by the Inspectorate. Mr Stillman then telephoned the Inspectorate, which confirmed that the appeal had not been validated or accepted.
59. In a second witness statement, Mr Martin provided an up-date. It transpires that the Moroccan consulate's appeal was not validated when first submitted, because it had not submitted all the plans relevant to the planning application. The consulate had asked the Secretary of State to deal with the appeal in private, under the procedure in section 321 of the 1990 Act. The Secretary of State had refused. After that decision, the consulate provided the missing plan, and the appeal was validated and determined. The result was that the consulate's appeal was allowed, and permission granted for B1 use.
60. Mr Reed's submission for the Applicant was that the Inspector's decision should be quashed, on the application of the principles in E v Secretary of State for the Home Department, cited above.
61. Mr Reed said that the Inspector had clearly not known that the consulate's appeal had not been validated. He said that had the Inspector known this, he might have reached a different view on whether to use current uses rather than lawful uses as the basis for his decision.
62. I do not accept this submission. Although there was information about the consulate's appeal that the Inspector lacked, namely that at the time of his decision the appeal had not been validated, I do not think this is a proper basis for challenging his decision by reference to the principles within E v Secretary of State for the Home Department.
63. To begin with, I do not accept that there was a mistake of fact. What the Inspector said in relation to the consulate's appeal was (paragraph 22) that "[a]n appeal..has been submitted but it would not be appropriate to speculate on the outcome of the process or of any subsequent action." What the Inspector said was true. It was not a mistake. As he said (and as he was told) an appeal had been submitted by the consulate. The fact that it had not at the time of his determination been validated does not negate the fact that it had been submitted.
64. As was agreed in submissions before me, in the appeal process, the appellant submits an appeal to the Planning Inspectorate, which then has, as a first step, to validate the appeal, before proceeding to its determination.
65. What the Inspector said was not a mistake as to the facts. The information about the delay over validation is further information about something the Inspector already knew, not information which shows he proceeded on a mistaken basis.
66. Further and in any event, it is required under the principles in E that the appellant or his advisors should not be responsible for the "mistake", if there was indeed a mistake. In the present case, I think the Applicant was responsible, in that in its representations to the Inspector it stated (paragraph 1.5) that "[w]e understand that this refusal is subject to an appeal". Further, although it had sought information about the status of the consulate's appeal during the process relating to its own appeal, it was not suggested to me that there was anything to prevent it ascertaining the facts about lack of validation before, as opposed to after, determination of its own appeal. What happened was that after receiving the Inspector's dismissal of its own appeal, it made further enquiries of the Council and the Inspectorate about the consulate's appeal, which it could have made at the time of preparation of its own representations to the Inspector. In that sense, it seems to me that the Applicant was responsible for any "mistake."
67. Finally, I do not accept that the further information as to validation which was found by the Applicant was material to the decision. Mr Reed suggested that had he known about the full circumstances, the Inspector might have doubted whether the consulate would proceed with the appeal, given the security concerns and the uncertainty whether the Secretary of State would agree to deal with the appeal under section 321 of the 1990 Act. However, in the light of the uncertainties about what was the lawful use of the café at No 93, and about whether the consulate use would be closed down by enforcement action in the event either no appeal was made by the Moroccans or an appeal was made but failed, I think it inevitable that the Inspector would have made the same decision about the basis on which to assess criterion 4.

Criterion 4; overall summary

68. For the reasons given above, the Applicant's challenge to the Inspector's assessment in relation to criterion 4 fails.

CONCLUSION

69. I conclude that the Inspector did not err in his analysis of either criterion 1 or criterion 4 of UDP Policy SS6 (C). In those circumstances, I do not need to consider whether had I found his treatment of one of them to be unlawful, there was a real possibility that the decision would have been different. This application must be dismissed.