England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		2 December 2015

1. THE DEPUTY JUDGE: This matter began as an application for judicial review, but is now a challenge under section 288 of the Town and Country Planning Act 1990 to a decision of the Secretary of State by his Inspector in a decision letter dated 7 May 2015. The Inspector dismissed the Claimant's appeal against the refusal of the Royal Borough of Greenwich to grant retrospective planning permission for the change of use of premises from B1 (Business, Light Industry) to a mixed use comprising Class D1 (Place of Worship) and Class D2 (a Community Centre) by the congregation of the Jubilation Heritage and Sanctuary of Praise Ministries.
2. The Inspector in his decision letter identified three main issues in paragraph 3 of the decision letter.
3. That paragraph reads as follows:

"The main issues in this case are

The effect of the proposal on the Council's policies for safeguarding industrial land within defined areas;

Whether the proposed use would be in an accessible and sustainable location; and

Whether sufficient information has been provided to assess if the level of parking demand generated by the proposal would result in additional pressure for on-street parking to the detriment of highway safety and existing users in the area."

4. The first ground of challenge to that decision is that the Inspector failed to have regard to a material consideration, namely to the benefits of the proposal and especially the employment benefits.
5. We can see from the Claimant's statement of case that was before the Inspector that the benefit was identified in these terms:

"The occupation and practical use of the unit would support economic growth by increasing the vitality of the area."

6. In terms of the number of employees, the Claimant in his statement of case said this:

"The number of people employed at the premises includes three full-time members of staff (two admin, one musician); four part-time members of staff (one admin, two musicians and one accountant); and 30 volunteers (bus drivers, technical and communication, maintenance, youth workers, mentoring staff, cleaners, security, first aiders and safety personnel). No external works are being carried out to the application property, only internal changes to the layout."

7. In the material they put before the Inspector, the Council, the Local Planning Authority who had refused planning permission, set out their doubts about the Claimant's position in these terms:

"Whilst the proposed use would provide some employment, the general community use in this location is unacceptable. The Council is also sceptical at the number of jobs that have been specified by the Applicant, i.e. three full-time members of staff, four part-time members of staff and 30 volunteers, in view of the fact that the congregation size is only meant to be 50."

8. In his decision letter, the Inspector considered this matter under the heading of "Loss of Industrial Land", the first main issue that he identified. He dealt with that in paragraphs 5 to 9 of his decision letter. He said this: "The stated employment generated by the proposal is modest and there is no information as to how that would compare to the authorised use of the premises."
9. The Inspector looked at the material before him. He did consider the claimed benefit of employment, but he was of the overall view, as we see from paragraph 5 of his decision letter, that the importance of the allocation of this site for industrial uses was not outweighed by those modest employment benefits that were before him and which he did consider. In paragraph 5 of his decision letter, he said this :

"The appeal site is within the West Thamesmead Business Park which is defined as a Strategic Industrial Location and a Preferred Industrial Location in the London Plan. Policy 2.17 urges the protection of such locations as London's main reservoir of industrial and related capacity.

Development proposals for non-industrial uses should be refused unless it is part of a planning framework or for an employment related use. Greenwich Local Plan Core Strategy Policy EA4 includes the site within a Strategic Industrial Location that should be protected for continued industrial use. The proposed use of the premises would not accord with the above policies because the proposal is not for industrial or related purposes."

10. In my judgment, the Inspector clearly looked at the benefit from employment from the proposed use, albeit that it is a use that had been in place for some time, but he decided that that was not sufficient to outweigh the importance of this allocated site for industrial use.
11. He did also go on to consider the community benefits. In paragraph 13 of his decision letter he recognised the policy support for community facilities. He wrote this:

"Policy 3.16 of the London Plan supports the provision of social infrastructure including places of worship in locations accessible to all sections of the community. Greenwich Local Plan Core Strategy Policy CHI - Cohesive Communities supports the development of new community facilities where there is an identified local need. Facilities must be easily accessible to all and located in or on the edge of town or local centres unless a special need for a location elsewhere can be demonstrated."

12. The Inspector, however, found that this was not a sustainable location, as we see from paragraph 14:

"The site is not within or on the edge of a town or local centre. The nearest town centre is around 1.6 km away, according to the Council. I note the benefits of the proposed community use as stated by the appellant, but do not consider that these benefits would outweigh the policy objections to the location of the proposal. There was no convincing evidence that suitable premises in a town centre were not available. There was no evidence of a special need for the proposal to be located at this particular site. The site is not in an accessible and sustainable location for a community use, being outside any defined town or local centre. The proposal does not therefore comply with Greenwich Local Plan Core Strategy Policy CHI for these reasons."

Again, I am satisfied that the Inspector did take into account both the modest employment benefits claimed by the Claimant and the community benefits, which he addressed in paragraphs 13 and 14 It is also the case, in my judgment, that he considered that the site had been vacant for some time. It is a complaint in the Claimant's skeleton argument that the Inspector did not take this properly into account. It is complained that the Inspector failed to have proper regard for the fact that the site had been vacant and not being used for industrial purposes since 2007. However, if one reads the decision letter fairly, if one turns to paragraph 7 of the decision letter, the Inspector wrote this:

"The evidence was that the premises were vacant from 2007 until the current use started in early 2013.

The previous use was stated to be within Use Class B1. The premises suffered vandalism and were in a poor state of repair at the time of occupation by the appellant. The condition of the premises is in itself not sufficient reason to grant planning permission for a use that is not in accordance with current policy. The premises are in a reasonable state of repair now."

13. So he was aware of the history of vacancy from 2007 until the use under consideration starting in 2013.
14. He was aware of and referred to also the National Planning Policy Framework paragraph 22, which he addresses in paragraph 6 of his decision letter. He noted that that paragraph of the NPPF states that:

"Planning policies should avoid the long term protection of sites allocated for employment use where there is no reasonable prospect of a site being used for that purpose. Land allocations should be regularly reviewed. Where there is no reasonable prospect of a site being used for the allocated employment use, then alternatives should be considered on their merits."

15. He noted in this case the allocation was reviewed within the last year or so as part of the Local Plan (see paragraph 3 of the decision letter) and was judged to be sound.
16. Then his overall conclusion on this issue of the loss of industrial land is to be found in paragraph 9, where he says this :

"The Council points out that the economy was only beginning to recover at the time of the previous refusal and that there is now more demand for this type of unit at this location as a result of the improvement in market conditions. I consider that there is insufficient information to demonstrate that there is no reasonable prospect of the premises being used for industrial or employment purposes, in accordance with the site's allocation and current policy. The loss of these premises to the proposed use without proper justification would be contrary to Policies 2.17 of the London Plan and EA4 of the Greenwich Local Plan Core Strategy."

17. The Inspector clearly, in my judgment, looked at employment benefits, community benefits and the history of vacancy, but clearly came to the view that those matters did not outweigh the loss of this strategic industrial allocation to an industrial use It is also complained that he did not take proper account of marketing evidence relevant to the site having been vacant for some period of time. In the papers before me there is a letter from property consultants dated 11 August 2014 which does refer to marketing for the site, 8 Kellner Road. It says:

"From January 2013 until the present, marketing was based on boards on site. Most inquiries had come from this method and August 2013 an advert was put in Greenwich Times for office spaces in Thamesmead. However, no inquiries came from that, this campaign. No other marketing campaigns were run for the Doric Centre."

18. It is complained that the Inspector did not take marketing evidence into account. In my judgment, it is very far from clear that that particular letter was before the Inspector at all. Even in their skeleton argument, the Claimants say that they have been unable to verify this point at the time of producing the skeleton argument, which was on 11 November. When one looks at the relevant documents where one would expect to see reference to that letter, no reference is made.
19. The Inspector dealt with this in paragraph 8 of his decision letter. He said:

"In terms of the demand for industrial uses, I noted that there were some vacant units in the area at my site visit. It is claimed that the appeal premises were marketed for 6 years. This appeared to consist of for sale boards erected on the site. No further details or evidence of the marketing from the company involved was supplied."

20. As I say, it is not at all clear that that letter, therefore, was before the Inspector. He went on to say:

"There was no information as to how any marketing continued after the appellant acquired the premises or under the previous owner. I note from the planning history that the previous owner had plans for a banqueting facility that were refused and dismissed at appeal in 2012. The Inspector in that appeal decision stated that the marketing evidence was inconclusive. No more convincing evidence has been presented with this appeal and I have no reason to depart from his conclusions in this regard."

21. In my judgment, it is clear that the Inspector did look at marketing and he cannot be criticised for failing to refer to a document which I am not satisfied was before him when he considered this appeal.In any event, it is clear from paragraph 9 of his decision letter that it was part of the Council's case before him that the economy was only beginning to recover at the time of the previous refusal and that there is now more demand for this type of unit at this location as a result of the improvement in market conditions.
22. I am satisfied that the Inspector did take into account material considerations in terms of benefits arising from employment and benefits arising from community benefits by the provision of a community facility. He did bear in mind that the premises had been vacant for some time. He did look at marketing and the prospect of the premises being used for their allocated use, namely industrial use. He was not satisfied that those benefits he did take into account outweighed that loss of industrial land and the consequent breaches of the relevant policies that he refers to in his decision letter. There is nothing, therefore, in ground 1 of the challenge to the decision letter.
23. Ground 2 deals with highway considerations, entitled in the Claimant's skeleton argument "The Inspector considered the impact on the highway in a flawed manner". It is suggested he applied the wrong test, that no significant amount of traffic would be generated or was generated by the use and that there was not a severe impact, which it is claimed is the only justification for refusal that the National Planning Policy Framework contemplates. In any event, the use was already in existence.
24. If one looks at the officer's report, which essentially formed the Council's case for this appeal, the officer considering this proposal recommended a reason for refusal relating to highway safety. That is the heading of the recommended refusal. That recommendation was accepted by the Council and the reason for refusal is indeed in terms of highway safety considerations.
25. The Claimant's case is that (and one can see this in the Claimant's statement of case):

"The average numbers of worshippers visiting the premises on a weekly basis is 50 people with the number of worshippers attending each service by private vehicle being approximately 10. Therefore, the average number of cars associated with this proposed use over its weekend use is approximately ten vehicles and approximately three cars over its standard daily use. These numbers should be considered in conjunction with the use of the community centre bus which transports people to and from the town centre. The site is well-located and benefits from good access to public transport facilities such as Plumstead overland rail station.

Also available are mini cabs and taxis to serve the congregation. Many people would share cars and mini buses to travel together."

26. The Local Planning Authority, however, in their statement of case referred to concerns of the police expressed in these terms:

"The venue is situated within an industrial area and the application states there is parking on the site for 10 vehicles. Police are not aware of any parking facility in this venue and the plans do not reflect this either. Any persons at the premises would be required to park in the street and in the surrounding area. This could create issues with those businesses who are trading at the same time as the venue is in operation. The application states there are good transport links, but any person visiting would be required to walk through an industrial area. Again, this could be a cause of concern to those premises trading in the area with deliveries and medium to large vehicular movements in the vicinity."

i. The Council were sceptical about the Claimant's figures. In their statement of case under the heading "Transport Accessibility" they wrote:

"The application site has been visited by planning enforcement and it was observed that more than 100 chairs were laid out inside the building. It was also noted that there were high levels of traffic and parking in the area. While the Applicant states 50 people, this is clearly not the case. It has been confirmed by the Council's licencing section that a temporary entertainment licence has been applied for for approximately 200 to 250 people."

27. It is accepted, of course, that not all those people might have turned up to any such licenced event. Nevertheless, that is the Council's case in terms of its doubts as to the number of people that would attend.
28. The Council also drew attention to what is known as the low PTAL rating, which is a London measure of accessibility to public transport. A low PTAL rating means poor accessibility to public transport.
29. In my judgment, paragraph 32 of the National Planning Policy Framework that the Claimant relies on under this ground 2 is addressing matters of highway capacity and congestion. It is not concerned with highway safety considerations in themselves. It cannot be, because it cannot be the case that the Government considers anything other than severe impact on highway safety would be acceptable, which would be the implication of the Claimant's argument.
30. The Inspector addressed car parking in paragraphs 10 to 12 of his decision letter and came to the conclusion that the likelihood is that users would travel to the site by car.
31. He observed:

"The road outside is relatively narrow with no parking restrictions and I cannot place any reliance on restrictions being applied. The site is located close to a bend in the road. There is a high demand for on-street parking and at the time of my site visit I noted many cars parked on the road either side of the site. Some of these cars were parked on the pavement acknowledging the restricted road width."

32. He says in paragraph 12:

"The Council pointed to the potential for the proposed use to generate considerable traffic movements. A large amount of vehicles parking outside the site could inhibit the free flow of traffic. This would be prejudicial to highway safety and highway users, such as the nearby businesses.

I conclude that insufficient information has been provided to assess whether the proposed use could operate without detriment to highway safety and the free flow of traffic in the area and as such the proposal is contrary to the [relevant policy which he identifies], which addresses parking provision."

33. In my judgment, he properly addressed the issue of car parking in the context of highway safety. He took into account the concerns expressed by the Council. He took into account his site visit and what he saw on that site visit.
34. In my judgment, he addressed that reason for refusal fully and properly, taking into account all material considerations.
35. There is a further criticism of the Inspector in that he Did not consider the possibility of a condition addressing such concerns. In my judgment, he is considering that matter in paragraph 11 when he talks about the road being relatively narrow outside the appeal premises with no parking restrictions. He said:

"I cannot place any reliance on restrictions being applied."

36. A condition would not be effective in those circumstances to seek to impose parking restrictions on an otherwise unrestricted highway. That is the matter to which he was alluding there.
37. He also referred to the absence of a travel plan or a parking survey. In my judgment, it would be reasonable to expect one if these concerns were properly to be addressed, those concerns being protected by the relevant policies of the development plan.
38. There is nothing in ground 2 and I dismiss the claim in respect of that ground.
39. Ground 3 is related to that ground.
40. It alleges that the Inspector had regard to irrelevant considerations and the complaint is that Inspector held a lack of parking against the development when little traffic would be generated.
41. I have largely addressed this matter already. There was a reason for refusal in respect of parking namely reason for refusal three, which read:

"In the absence of a parking survey and confirmation regarding the total size of the congregation and where they are commuting from, the Council is unable to fully assess whether or not the proposed change of use would result in additional pressure for on street parking to the detriment of the existing users in the area."

42. It then identified the relevant policies. As I say, in the officer's report the concern was headed "Highway safety".
43. It was not accepted by the Local Planning Authority, therefore, that there would be little traffic generated by this proposal. The Inspector considered those matters fully in paragraphs 10 to 12 of his decision letter which I have already read out. It clearly was a relevant consideration whether there was sufficient parking. The Inspector, using the material before him and bringing to bear on that material andhis site visit his expertise, came to judgments on that which were perfectly proper and reasonable judgments in relation to that issue.
44. There was reference in submissions to me to a matter concerning another appeal decision. In paragraph 15 of the decision letter, the Inspector said this:

"The appellant referred to an appeal decision for a similar use at 61 Kellner Road. The Inspector in that decision concluded that the building in question was not suitable for industrial use, which is not the case with this building. I have considered the other appeal decisions referred to by the appellant. None were in London or in strategic industrial locations and the evidential and policy context was not comparable to that of this appeal.

I therefore find that they are distinguishable from this case."

45. The Inspector clearly took into account any relevant other decisions that were put before him.
46. Having considered all those matters, the Inspector concluded that the appeal should be dismissed for the reasons he gave in his decision letter. I have considered each of the three grounds of appeal that have been so ably argued before me by Miss Lanlehin and I find there is nothing in any of those grounds. The claim is, therefore, dismissed.
     
    
47. MISS TAFUR: I am grateful, my Lord.In the circumstances, I do have an application for costs.
48. THE DEPUTY JUDGE: Yes.
49. MISS TAFUR: My Lord, there is an updated costs schedule. I understand --
50. THE DEPUTY JUDGE: I do not think I have seen a costs schedule at all. It may be my fault because some have been turning up by e-mail.
51. MISS TAFUR: No, my Lord. I am sure it is our fault. This is the updated costs schedule. (Handed)
52. THE DEPUTY JUDGE: Has Miss Lanlehin seen it?
53. MISS LANLEHIN: Yes.
54. THE DEPUTY JUDGE: Yes. Thank you.
55. MISS TAFUR: Yes.
56. THE DEPUTY JUDGE: Thank you.
57. MISS TAFUR: The total sought on the penultimate page there is £5,857.
58. THE DEPUTY JUDGE: Yes.
59. MISS TAFUR: There was, my Lord, some considerable work involved yesterday --
60. THE DEPUTY JUDGE: Yes.
61. MISS TAFUR: in liaising when discovering that the Claimant was represented, trying --
62. THE DEPUTY JUDGE: Yes.
63. MISS TAFUR: to get the skeleton argument.
64. So the previous costs schedule had been prepared on 30 November. It was prepared a few days before today's hearing because we did not have an e-mail address for the
65. Claimant and it had to be sent by post.
66. THE DEPUTY JUDGE: Right.
67. MISS TAFUR: So there has been an increase of some £1,300 since that costs schedule.
68. THE DEPUTY JUDGE: Right.
69. MISS TAFUR: I do have the original if
70. THE DEPUTY JUDGE: Well, I will see what Miss Lanlehin says about it.
71. MISS TAFUR: Yes.
72. MISS LANLEHIN: My Lord ,yes.
73. I do not dispute the work that has been done in preparation of the case except to take issue with item number 11 on the schedule of work done on the documents. It is on the last page.
74. THE DEPUTY JUDGE: Yes.
75. MISS LANLEHIN: That is drafting a statement of costs taking some 3.5 hours.
76. THE DEPUTY JUDGE: Yes.
77. MISS LANLEHIN: My Lord, I think I would submit that that is
78. excessive. It seems to have taken more time than any other material item of work undertaken by the Defendant's solicitors, my Lord.
79. THE DEPUTY JUDGE: Yes, it does seem to be slightly disproportionate, for example, to instructing counsel.
80. MISS TAFUR: Yes, my Lord.
81. THE DEPUTY JUDGE: Can you say anything about that?
82. MISS TAFUR: Yes. In terms of the drafting of the statement of costs, your Lordship will see that has been carried out at by a fee earner at Grade D, the lowest level.
83. THE DEPUTY JUDGE: Right.
84. MISS TAFUR: There was a requirement to update it in light of the work that was done yesterday.
85. THE DEPUTY JUDGE: I see, yes.
86. MISS TAFUR: Yes, it did take a Grade Dfee earner a little bit longer, but it has been prepared twice and it is at the lowest level.
87. THE DEPUTY JUDGE: Yes, I understand that.
88. Do you want to say anything more given that explanation?
89. MISS LANLEHIN: No, my Lord.
90. THE DEPUTY JUDGE: No.
91. I am satisfied that the total sum of costs in the sum of £5,857 has been reasonably incurred by the Secretary of State for Communities and Local Government in preparing for this case. I make the order that the Claimant should pay that sum in costs, £5,857, to the Second Defendant in this matter, the Secretary of State for Communities and Local Government.
92. I am satisfied of the explanation of the drafting of the
93. statement of costs. There was some confusion in terms of service of bundles and so on and that necessitated additional work. I am satisfied that that additional work was done reasonably and by the relevant level of fee earner and for a reasonable period of time. So I make the full order as to costs that has been sought.
94. Thank you very much indeed. Thank you both very much for your help. You have been very helpful to me.