England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		12 October 2016

Mrs Justice Lang:

1. The Claimant applies under section 288 of the Town and Country Planning Act 1990 ("TCPA 1990") to quash the decision of the First Defendant, made on his behalf by an Inspector on 17 February 2016, in which he allowed two appeals brought by the Third Defendant and granted planning permission for development at 19, South End, London W8 5BU ("the property").
2. The Third Defendant is the owner of the property, which is a three storey terraced building in the London Borough of Kensington, to the south of Kensington Square. The First Defendant granted the Third Defendant planning permission for demolition of the building, construction of a replacement dwelling, and change of use from Class B8 storage to Class C3 residential.
3. The Claimant resides in the adjacent terraced property (18, South End). He objected to the Third Defendant's applications for planning permission and was a rule 6 party at the appeals. He opposed the loss of commercial uses in the area generally, and at this property in particular, and the impact of the proposed development on his family and property.
4. There were 5 appeals by the Third Defendant against the Second Defendant (the local planning authority), made under section 78 TCPA 1990:

i) Appeal A was against the refusal of the Second Defendant of the application dated 28 May 2013 for planning permission for a change of use from Class B1 office use to Class C3 residential use, and the construction of a double storey basement.

ii) Appeal B was against the refusal of the Second Defendant of the application of 22 November 2013 for planning permission for demolition of the existing building, construction of a replacement dwelling, change of use from Class B8 storage use to Class C3 residential use, and the construction of a double storey basement.

iii) Appeal C was against the Second Defendant's failure to give notice of a decision within the prescribed period on the application, dated 4 November 2014, for planning permission for demolition of the existing building, and construction of a replacement dwelling, and change of use from Class B8 storage use to Class C3 residential use.

iv) Appeal D was against the Second Defendant's failure to give notice of a decision within the prescribed period on the application, dated 21 August 2014, for planning permission for demolition of the existing building and construction of a replacement dwelling, change of use from Class B8 storage use to Class C3 residential use, and a new basement.

v) Appeal E was against the Second Defendant's failure to give notice of a decision within the prescribed period on the application, dated 22 July 2015, for planning permission for change of use to Class C3 residential use.

5. The Inspector held an Inquiry and a site visit. He dismissed appeals A, B and D, thus refusing permission for a basement extension. He allowed appeal C, granting planning permission for demolition of the existing building, construction of a replacement dwelling, and change of use from Class B8 storage to Class C3 residential, subject to conditions. He also allowed appeal E, granting planning permission for change of use to Class C3 residential use.
6. The Inspector's principal findings (so far as material to this application), were as follows:

i) Although the property had previously been in Class B1 office use, the current use of the property was Class B8 storage use. The Second Defendant accepted there had been Class B8 storage use since at least January 2014 but this was disputed by the Claimant.

ii) CLP Policy CF5, which seeks "to ensure that there is a range of business uses … to allow businesses to grow and thrive…" afforded protection to Class B8 storage use, in addition to Class B1 use, as contended by the Claimant and the Second Defendant.

iii) However, in this particular case the proposed change of use from Class B8 storage use to Class C3 residential use was not in conflict with Policy CF5, contrary to the submissions of the Claimant and the Second Defendant. The Inspector found:

"53. As a matter of judgment in the present five appeals, such evidence as is available that the change of 19 South End to residential use would result in an inappropriate reduction in the range of uses available is largely un-quantified and fails to provide strong economic reasons for refusing it."

iv) It was a material consideration that the use could revert to Class B1 office use from Class B8 storage use, as permitted development, whereas the possibility of a reversion to Class B1 would be lost if the use was changed to Class C3 residential use. Class B1 use would justify protection under Policy CF5. However, the prospects of reversion to Class B1 and the loss of that use, contrary to Policy CF5, carried minimal weight in connection with the appeals. The Inspector said:

"56. In the different alternative outcome that the extant use of the appeal property were found to remain in Class B1 as offices, the Council, supported by the Rule 6 party, maintains that refusal would still be justified under Policy CF5. In itself, there is merit in this contention because it is the essentially undisputed evidence of the Council that, properly disregarding hope value of future change to residential use, the appeal property would be viable in office use. Moreover, it would justify protection in terms of Criterion a of Policy CF5, as a medium-sized office development in an accessible area, close to the town centre and not subject any of the exclusions of that criterion. Despite the foregoing finding that the current use of the appeal site is properly to be regarded as Class B8, the Council would further contend that the loss of a building that could potentially revert to Class B1 as permitted development should nevertheless be regarded as a material consideration. For reasons explained above in connection with the issue of the present use class of the site however, such an eventuality cannot properly be anticipated in relation to these appeals. The prospects of reversion to Class B1 and the loss of that use contrary to Policy CF5 accordingly also carry minimal weight in connection with these five appeals."

Grounds

7. The Claimant's first ground of challenge was that, at paragraph 56, the Inspector failed to have proper regard to the material consideration of a possible reversion to Class B1 office use. He erred in law in concluding that a reversion to B1 office use could not properly be anticipated solely on the basis that it was not appropriate to anticipate the Third Defendant's future actions or to do so subjectively. This was not the correct test. He should have carried out an objective assessment of all the material in relation to a possible reversion to Class B1 use, including the evidence adduced on behalf of the Second Defendant Council from Mr Lomas, senior planning officer, and Mr Clack, an RICS Registered Valuer. The Claimant's second ground of challenge was that the Inspector failed to give any adequate or intelligible reasons as to his conclusions on this issue.
8. The response of the First and Third Defendants was that the Inspector ought not to have treated a possible reversion to B1 use as a material consideration at all because it was irrelevant in planning terms, and so the alleged failure to do so properly could not justify quashing the decision. Alternatively, if the Inspector was entitled to treat a possible reversion to B1 use as a material consideration, his approach did not disclose any error of law, and he gave adequate reasons for his conclusions.

Legal framework

Section 288 TCPA 1990

9. Under section 288 TCPA 1990, a person aggrieved may apply to quash a decision on the grounds that (a) it is not within the powers of the Act; or (b) any of the relevant requirements have not been complied with and in consequence, the interests of the applicant have been substantially prejudiced.
10. The general principles of judicial review are applicable to a challenge under section 288 TCPA 1990. Thus, the Claimant must establish that the Secretary of State misdirected himself in law or acted irrationally or failed to have regard to relevant considerations or that there was some procedural impropriety.
11. The exercise of planning judgment and the weighing of the various issues are matters for the decision-maker and not for the Court: Seddon Properties v. Secretary of State for the Environment (1978) 42 P &CR 26. As Sullivan J. said in Newsmith v. Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74, at [6]:

"An application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision."

12. An Inspector's decision letter must be read (1) fairly and in good faith, and as a whole; (2) in a straightforward down-to-earth manner, without excessive legalism or criticism; (3) as if by a well-informed reader who understands the principal controversial issues in the case: see Lord Bridge in South Lakeland v. Secretary of State for the Environment [1992] 2 AC 141, at 148G-H; Sir Thomas Bingham MR in Clarke Homes v. Secretary of State for the Environment (1993) 66 P & CR 263, at 271; Seddon Properties v. Secretary of State for the Environment (1981) 42 P & CR 26, at 28; and South Somerset District Council v Secretary of State for the Environment (1993) 66 P & CR 83.
13. The standard of reasons required by a planning decision-maker was authoritatively set out by Lord Brown in South Bucks District Council and another v. Porter (No 2) [2004] 1 WLR 1953:

"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 some 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 prospects 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."

Determining an application for planning permission

14. The determination of an application for planning permission is to be made in accordance with the development plan, unless material considerations indicate otherwise: section 38(6) of the Planning and Compulsory Purchase Act 2004, read together with section 70(2) Town and Country Planning Act 1990.
15. In Tesco Stores Limited v. Dundee City Council [2012] UKSC 13, the House of Lords held that the proper interpretation of planning policy is ultimately a matter of law for the court, and a failure by a planning authority to understand and apply relevant policy will amount to an error of law. However, as Lord Reed explained at [19]:

"… many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse (Tesco Stores Ltd v. Secretary of State for the Environment [1995] 1 WLR 659, 780 per Lord Hoffmann)."

16. The statutory requirement to have regard to material considerations is, in effect, a statement of the public law principle that all relevant considerations should be taken into account. Whether or not a particular consideration is material is ultimately a matter for the court to determine: Tesco Stores Ltd. v. Secretary of State for the Environment [1995] 1 WLR 759, per Lord Keith at 764A. Subject to Wednesbury unreasonableness, however, it is a matter for the decision maker to decide the weight (if any) to be attached to a material consideration: Tesco Stores, per Lord Hoffman at 780F-H.
17. In principle, any consideration which relates to the use and development of land is capable of being a planning consideration. Whether a particular consideration which falls within that broad class is material in any given case will depend on the circumstances: Stringer v. Minister of Housing and Local Government [1971] 1 All ER 65, per Cooke J. at page 77.
18. A consideration is 'material' if it is relevant to the question whether the application should be granted or refused; that is to say if it is a factor which, when placed in the decision-maker's scales, would tip the balance to some extent, one way or the other. In other words, it must be a factor which has some weight in the decision-making process, although it may not be determinative: R (Kides) v. South Cambridgeshire DC [2002] EWCA Civ 1370, per Jonathan Parker LJ at [121].
19. The courts have considered to what extent the retention of an existing or potential use may be a material consideration.
20. In Clyde & Co. v Secretary of State for the Environment [1977] 1 W.L.R. 926, the Secretary of State upheld the planning authority's refusal to grant permission for a change of use from residential to office use, because of its concern about the loss of living accommodation for which there was a local and national need, whereas there was adequate provision of office space in the area. The premises had planning permission for 8 residential flats, but the development was only part-completed before the building was leased to new occupiers and so the permission had not been fully implemented. Willis J. quashed the Secretary of State's decision on the ground that it was impermissible to treat the desirability of retaining the permitted housing use as a material consideration. The Court of Appeal overturned his decision. Sir David Cairns said, at 936B:

"The fact that the refusal of planning permission for a change of use cannot ensure that a current use which is a permitted use will continue was as already indicated the ground of the refusal of planning permission in the case of the Dartford cinema. It is equally true that whereas in the present case the permitted use has not been started, the refusal of an application to change of use cannot ensure that permitted use will ever be started. This was a point strongly relied on. I do not find it a compelling argument. The need for housing is certainly a planning consideration. If permission is given for office use, the permission will almost certainly be implemented and the building will be unavailable for housing. If permission for office use is refused, there is at least a fair chance that the building will be used for housing rather than being allowed to stand empty. That the desirability of preserving an existing use is a regular ground for the refusal of planning permission was, Mr Woolf said, shown by the fact that planning permission to build is frequently refused on the ground that the land on which it is sought to build is agricultural land."

21. London Residuary Body v. Lambeth London Borough Council [1990] 1 WLR 744 concerned an application to develop the main block of the former Greater London Council building. Objectors argued that its existing use for London governmental purposes should be retained. The House of Lords held that the Secretary of State acted lawfully in treating the desirability of retaining the existing use as a material consideration, but that he was entitled to conclude that the benefits of retaining the existing use were outweighed by other factors, and to grant planning permission for a change of use. It was a matter for him to decide in the exercise of his planning judgment. Lord Keith said at 751E:

"… In Clyde & Co. v. Secretary of State for the Environment [1977] 1 W.L.R. 926 it was held that the desirability of retaining an existing use of land was a material consideration proper to be taken into account under section 29(1) of the Act of 1971. In Westminster City Council v. British Waterways Board [1985] A.C. 676 this House, on a question under section 30(1)(g) of the Landlord and Tenant Act 1951, held among other things that the board, as landlords of certain premises, had established a reasonable prospect of success in their notional application for planning permission for their intended use of these premises, which was for a marina. The council had founded on the desirability of retaining the existing use of the land, namely as a street cleansing depot, as being a ground which made it unlikely that planning permission would be granted. Lord Bridge of Harwich, in a speech concurred in by the rest of their Lordships, accepted, at p. 682, that the desirability of preserving an existing use of land might by itself afford a valid planning reason for refusing permission for a change of use. Later he said, at p. 683:

"In a contest between the planning merits of two competing uses, to justify refusal of permission for use B on the sole ground that use A ought to be preserved, it must, in my view, be necessary at least to show a balance of probability that, if permission is refused for use B, the land in dispute will effectively be put to use A."

In my opinion nothing in either the Clyde & Co. case or in the Westminster Council case is properly to be interpreted as laying down that the competing needs test exists as a matter of law. Such a proposition would involve putting an unwarranted gloss on the language of section 29(1) of the Act of 1971. The most that can be extracted from the two cases is that the desirability of preserving an existing use of land is a consideration material to be taken into account under that subsection, provided there is a reasonable probability that such use will be preserved if permission for the new use is refused. …"

22. In Nottinghamshire County Council v. Secretary of State for the Environment, Transport and the Regions [2001] EWHC 293 (Admin); [2002] 1 P &CR 389, Christopher Lockhart-Mummery QC (sitting as a Deputy High Court Judge) upheld the decision of the Secretary of State refusing permission for a residential development in the light of his finding that it was desirable to preserve an option of retaining the land in question for educational use. He said, at [36]:

"If the judgment is made, whether through the development plan process of indeed outside it, that it appears desirable to preserve the option of using a piece of land for a purpose seen to be of benefit in the public interest for the country or the local community, this is in principle, a material planning consideration for the purposes of ss.70 and 54A of the Act. I understood this to be common ground in the case. The weight given to the consideration will vary hugely from case to case… Each case will turn on its own merits, but the importance of the project or proposal, its desirability in the public interest, are undoubtedly matters to be weighed. Therefore, in considering whether to grant planning permission for a proposal (use B) which will pre-empt the possibility of desirable future use (use A), the relative desirability of the two uses will have to be weighed. In striking the balance, the likelihood of use A actually coming about is doubtless a highly material consideration."

23. In Nottinghamshire CC Mr Lockhart-Mummery QC considered the "fall-back" cases to be analogous. These are cases where an applicant seeks planning permission should be granted for proposed use B, which is likely to cause some planning harm, on the ground that alternatively he will be able to put the land to an even more harmful alternative use.
24. The "fall-back" cases were reviewed in South Buckinghamshire District Council v. Secretary of State for the Environment [1999] P.L.C.R 72 by Mr George Bartlett QC, (sitting as a Deputy High Court Judge), who said at 79:

"In my judgment where, as in the present case, the decision maker is deciding whether planning permission for the development applied for should be granted in order to avoid the greater harm that would result from the resumption of some particular lawful use of the application site, it is inescapably necessary that he should consider the likelihood of such resumption taking place. This is so, it seems to me, for two reasons. Firstly, unless the resumption of the use is a realistic possibility, it would be Wednesbury unreasonable to treat the harm that would result from such resumption as a reason for granting permission for the new development. Secondly, the degree of probability of the use being resumed will, or at least may, be a material consideration, to be weighed by the decision maker along with the harm that the use would cause and the other pros and cons of the new development proposed. If the harm that would arise from the resumed use would be very serious, it may well be that a lower degree of probability of its resumption would be sufficient to justify the grant of permission than in the case of less serious harm. The assessment of the probability and the weight to be attached to it in the overall planning judgment, however, are matters for the decision maker."

25. In Mount Cook Land Ltd v. Westminster City Council [2003] EWCA Civ 1346; [2004] JPL 470, in which Mount Cook, the freeholder of a commercial building, unsuccessfully challenged the grant of planning permission to Redevco, which held a 999 year lease, for external alterations which Mount Cook contended would not preserve or enhance the character and appearance of the conservation area, and might prejudice the future use of the building for retail purposes. Mount Cook submitted alternative proposed alterations to the Council without making an application for planning permission. In the Court of Appeal, Auld LJ set out a statement of the law at [30]:

"(1) in the context of planning control, a person may do what he wants with his land provided use of it is acceptable in planning terms;

(2) there may be a number of alternative uses which he could choose, each of which would be acceptable in planning terms;

(3) whether any proposed use is acceptable in planning terms depends on whether it would cause planning harm judged according to relevant planning policies where there are any;

(4) in the absence of conflict with planning policy and/or other planning harm, the relative advantages of alternative uses on the application site or of the same use on alternative sites are normally irrelevant in planning terms;

(5) where… an application proposal does not conflict with policy, otherwise involves no planning harm and, as it happens, includes some enhancement, any alternative proposals would normally be irrelevant;

(6) even, in exceptional circumstances where alternative proposals might be relevant, inchoate or vague schemes and/or those which are unlikely or have no real possibility of coming about would not be relevant or, if they were, should be given little or no weight."

26. Auld LJ then went on to say:

"31. Turning to the circumstances of this case, it is clear that Redevco's application, if considered on its own, would not be harmful in a planning sense and would enhance the Building and the Conservation Area of which it is part. Stopping there, and still considering the application on its own, that is more than Redevco needs to establish the grant of permission ….. However the issue raised by Mount Cook …. is that the proposals in Redevco's application …. would or could be harmful in a wider planning sense of frustrating or endangering a more favourable solution for the Building and the Area….

32. In my view, where application proposals, if permitted and given effect to, would amount to a preservation or enhancement in planning terms, only in exceptional circumstances would it be relevant for a decision-maker to consider alternative proposals, not themselves the subject of a planning application under consideration at the same time (for example, in multiple change of use applications for retail superstores called in by the Secretary of State for joint public inquiry and report). And, even in an exceptional case, for such alternative proposals to be a candidate for consideration as a material consideration, there must be at least a likelihood or real possibility of them eventuating in the foreseeable future if the application were to be refused. I say "likelihood" or "real possibility", as the words tend to be used interchangeably in some of the authorities; see, e.g. New Forest District Council v. Secretary of State (1996) 71 P. & C.R. 189, per Mr Nigel Macleod, sitting as a Deputy High Court Judge. If it were merely a matter of a bare possibility, planning authorities and decision-makers would constantly have to look over their shoulders before granting any planning application against the possibility of some alternative planning outcome, however ill-defined and however unlikely of achievement. Otherwise they would be open to challenge by way of judicial review for failing to have regard to a material consideration or of not giving it sufficient weight, however remote.

33. When approaching the matter as one of likelihood or real possibility, as I have already indicated, it may often be difficult to distinguish between the concepts of materiality and weight; and both, particularly weight, are essentially matters of planning judgment. But I do not consider that a court, when considering the rationality in a judicial review sense of a planning decision, should be shy in an appropriate case of concluding that it would have been irrational of a decision-maker to have had regard to an alternative proposal as a material consideration or that, even if possibly he should have done so, to have given it any or any sufficient weight so as to defeat the application proposal.

34. In so concluding, I have been assisted by the judgment of Laws L.J. in this Court in R. (on the application of Jones) v North Warwickshire Borough Council [2001] EWCA Civ 315. In that case a planning committee considering an application for planning permission to construct dwelling houses declined to consider an alternative site referred to by objectors and granted permission. Laws L.J., with whom Aldous L.J. and Blackburne J. agreed, upheld the committee's decision, holding that they were entitled to disregard the alternative site. In so holding, he stated as a general proposition, and after reference to authorities (including the judgment of Simon Brown J., as he then was, in Trusthouse Forte Hotels Ltd v Secretary of State (1986) 53 P. & C.R. 293, at 299), that consideration of alternative sites would be relevant to a planning application only in exceptional circumstances. However, in his explanation of the proposition, it is plain that, in his use of the word "relevance", he had in mind both materiality and weight, a practical approach with which, as I have just indicated, I respectfully agree. Whilst that case concerned a possible alternative site for the sought development, and Mount Cook's proposals include alternative options for the application site, the approach of Laws L.J. seems to be equally applicable…..

35. In addition, there is nothing in the South Buckinghamshire or the Nottinghamshire County Council cases to support the view that, where on the facts before an Inspector, there is no likelihood or real possibility of an alternative proposal proceeding if the planning application under consideration were refused, that it should be refused anyway against the bare possibility of that or some other alternative more beneficial scheme eventuating. Indeed, such a suggestion is directly contrary to the concluding words in para.[36] of Mr Lockhart-Mummery's judgment in the Nottinghamshire County Council case (see para.[22] above), more aptly going to weight rather than whether the alternative is a material consideration:

"In striking the balance, the likelihood of use A actually coming about is doubtless a highly material consideration."

It would be highly harmful to the efficient and otherwise beneficial working of our system of planning control if decision-makers were required to consider possible alternatives, of which, on the facts before them, there is no likelihood or real possibility of occurrence in the foreseeable future.

36. Accordingly, I agree with the approach of Ouseley and Moses JJ. and the submissions of Mr Corner. In the circumstances of this case the alternative proposals of Mount Cook, such as they were, were not material considerations within ss.54A or 70(2) of the 1990 Act or, if they were, they were of such negligible weight that the court was entitled to refuse permission to apply for judicial review because the Council could not reasonably have taken any notice of them.

37. As Mr Corner put it, there is no conceivable basis upon which Mount Cook's proposals could have caused the Council to reach a different decision on Redevco's application; see, e.g. Bolton MBC v Secretary of State (1990) 61 P. & C.R. 343, at 353 per Glidewell L.J., and the North Warwickshire case, per Laws L.J. at 65. On the contrary, if the Council had refused these relatively minor alterations, its decision would have been judicially reviewable for failure to consider the application properly on its own merits.

38. The Council had an obligation to consider Redevco's application on its own merits, having regard to national and local planning policies and any other material considerations, and to grant it unless it considered the proposal would cause planning harm in the light of such policies and/or considerations. On the following information before the Council, I do not consider that it is usurpation by the Court of the Council's responsibility for the planning decision, as suggested by Mr Steel, to refuse Mount Cook's claim for judicial review. That is so, even if the matter is one of weight as distinct from the materiality of the consideration.

39. First, Mount Cook's proposals included works to the Building that were different from those proposed by Redevco in its application, and Mount Cook could not implement them without Redevco's consent. Redevco had not given any such consent and, in persisting with its application for planning permission, was clearly not minded to do so. Second, there was and is no evidence before the Council of any prospect of Redevco giving such consent. And, contrary to Mr Steel's suggestion, I do not consider that the Council had a duty to test Redevco's attitude by refusing its application in order to see whether, as a result of negotiation between the parties or otherwise, that would produce a change of heart. Third, as Mr Corner emphasised, Mount Cook's alternative proposals were "extremely inchoate". They did not take the form of a planning application, but merely, as Mount Cook's advisers described them, of "further options in the form of urban design studies for improvements". As the Council's planning officer had observed in correspondence with Mount Cook's advisers, its proposals for general improvement of the southern part of Market Place were vague, in particular "very sketchy" with regard to its proposed works to the highway and without details for implications of traffic movement and servicing. In the circumstances, and, as I have said, Mount Cook's threat that it would not continue with its wider proposals if Redevco was permitted to proceed with its alterations to the Building could not have a life of its own as a material consideration. That is, not only because of the lack of any likelihood or real possibility of Mount Cook being able to bring about its proposals for the Building, but also because there was no evidence before the Council that refusal of Redevco's application would assist it in doing so."

27. The Claimant also referred to the "fall-back" case of Samuel Smith Old Brewery (Tadcaster) v. Secretary of State for Communities and Local Government & Ors. [2009] EWCA Civ 333; [2009] JPL 1326 (CA), in which the Court of Appeal upheld a decision by the Secretary of State to grant planning permission for the retention and reuse of buildings and railway at a disused mine for a further 5 years, beyond the date when UK Coal would otherwise have had to restore the land to its previous condition under the terms of the previous planning permission, in the hope of realising the significant benefits which a suitable user could provide. Sullivan LJ said:

"17. On behalf of the appellant, Mr Village Q.C. advances two grounds of appeal. Firstly he says that, as part of the appellant's case at the inquiry, Mr Turner produced a development appraisal which demonstrated that the refurbishment of the existing buildings would not be economically viable. …

18. The second ground is linked with the first. Mr Village submitted that the Secretary of State's decision was based on mere speculation, or a "theoretical" as opposed to a "real" possibility that an occupier who wished to use the retained buildings with the rail facilities would be found within the period of five years.

…..

21. In order for a prospect to be a real prospect, it does not have to be probable or likely: a possibility will suffice. It is important to bear in mind that "fall back" cases tend to be very fact-specific. One might envisage a case where it was thought by the inspector or the Secretary of State that the fall-back position - for example, an old planning permission which was still capable of implementation - would be very damaging indeed if it was to be implanted. The point did not arise in Brentwood, where it was being argued that the impact of that which was permitted development would be much the same as the impact of the development for which planning permission was being sought. However, in a case where the adverse consequences of implementing the fall-back position would be very significant, Mr Village accepted that there would be no reason why the Secretary of State could not conclude, as a matter of planning judgment, that even if the risk of implementing the fall-back position was very slight indeed--an outside chance perhaps--the seriousness of the harm that would be done, if planning permission was not granted and the fall- back position was implemented, was such that the risk was not acceptable so that planning permission should be granted.

22. It is important, in my judgment, not to constrain what is, or should be, in each case the exercise of a broad planning discretion, based on the individual circumstances of that case, by seeking to constrain appeal decisions within judicial formulations that are not enactments of general application but are themselves simply the judge's response to the facts of the case before the court. By the same token, if the Secretary of State concludes, as a matter of planning judgment in any particular case, that there would be significant planning advantages if certain buildings were to be reused in the manner contemplated in an application for permission for their retention, then there is no reason why the Secretary of State should not be entitled to say that there may well be only an outside chance of these buildings being reused, but it is well worth keeping that option open at least for a period of five years.

23. In the present case, both the inspector and the Secretary of State recognised that it was uncertain whether or not any user would be found for the retained buildings in association with the railway infrastructure (see the passages from the inspector's report and the decision letter set out above). But they plainly both thought that there was a possibility that they might be ("not convinced no use would be forthcoming"), and that the significant benefits, if they were to be so used, justified the risk that unoccupied buildings would be left in the countryside, bearing in mind Condition 7 which "sufficiently mitigated" that risk.

24. Those conclusions were a matter of planning judgment for the inspector and Secretary of State respectively. …"

Conclusions

28. The First and Third Defendants submitted that a possible future reversion to a different authorised use (BI office use) could not be a material consideration. The cases of London Residuary Body v. Lambeth London Borough Council; Clyde & Co. v. Secretary of State for the Environment and Westminster City Council v. British Waterways Board were all concerned with the protection of an existing use; there was no authority for the proposition that an alternative potential future use, even if authorised, was a material consideration.
29. In my judgment, an alternative potential future use is capable of being a material consideration within the meaning of section 70(2) TCPA 1990. The statutory duty on a planning decision-maker to have regard to "any other material considerations" is expressed in broad terms. Consistently with the statutory language, the well-established statements in Stringer and Kides (cited above) describe material considerations broadly, emphasising that ultimately whether or not a matter is a material consideration will depend upon the individual circumstances in the particular case. On reading Auld LJ's judgment in Mount Cook as a whole, I do not consider that he intended to preclude consideration of a future potential use as a material consideration in an appropriate case. His statement of the law in paragraph 30 was said to be a distillation of existing law, not a departure from it. He cited with approval the statement of principle in Stringer, and the judgment in the Nottinghamshire County Council case, where the Judge concluded that the Secretary of State acted lawfully in treating potential future use of the site as a school as a material consideration and refusing residential development because of the desirability of preserving the option of using the site for educational use, as originally identified in the Development Plan. Plainly that was not an existing use case. Auld LJ also referred to the fall-back cases as relevant - South Buckinghamshire among others – in which potential alternative use, not existing use, was treated as a material consideration.
30. I do not accept Mr Harwood's submission that the Inspector was bound to treat the loss of a possible future reversion as a material consideration in the light of the earlier judgment of Supperstone J. in Carroll v. Secretary of State for Communities & Local Government & Ors [2015] EWHC 316 (Admin) (CO/3884/2014). In respect of Appeals A and B, the Third Defendant had successfully appealed on an earlier occasion, but the decisions of the Inspectors made on behalf of the Secretary of State for Communities and Local Government, were quashed by order of the High Court and fell to be re-considered. On Appeal A, Supperstone J. held that substantial prejudice had been caused to the Claimant because the application had been made for a change of use from Class B1 to Class C3, but the Third Defendant subsequently submitted that the existing use had changed to Class B8 under permitted development rights, and the Inspector allowed the appeal on that basis without giving the Claimant an opportunity to make representations on the new point which was controversial in several respects. Supperstone J. held:

"68. I accept Mr Harwood's submission that substantial prejudice was caused to the Claimant because if he had been given the opportunity to make representations on whether the building was in B8 use and on the merits of a change from B8 to C3 he could have made a number of points that, in my view, may have affected the outcome of the appeal.."

31. It is clear that Supperstone J. made no finding or observation on the issue in this application, namely, that the First Defendant should have refused permission in order to protect a possible reversion to Class B1 office use.
32. The next question is whether the Inspector properly applied the principles set out at paragraph 30 of Auld LJ's judgment. Although the case law was not cited to him, this is a well-known case of which an experienced Inspector would be aware. The issue was placed squarely before him in the parties' closing submissions.

i) The Claimant submitted that the loss of the historic and potential future Class B1 office use was a material consideration. A planning application to remove the Class B1 office use would be refused as contrary to Policy CF5, as had already occurred on an earlier application. To get around the policy, the Third Defendant had taken a two-step approach: taking advantage of enlarged permitted development rights to change the use to Class B8 and then applying for permission to change the use to Class C3. If permission to change the use to Class C3 was refused, it was likely that the use would revert to Class B1 office use, as the evidence was that Class B8 storage use was not nearly as profitable.

ii) The Second Defendant submitted that the permanent loss of potential B1 office use of the property was a material consideration in circumstances where it had been in office use for many years prior to its acquisition by the Claimant, and such loss would be contrary to Policy CF5 as it would result in a reduction in the range and availability of business premises in the borough. It was also contrary to NPPF 51. Policy CF5 provided, in part:

"Location of Business Uses

The Council will ensure that there is a range of business premises within the Borough to allow businesses to grow and thrive; to promote the consolidation of large and medium offices within town centres; support their location in areas of high transport accessibility; and protect and promote employment zones for a range of small and medium business activities which directly support the function and character of the zone.

To deliver this the Council will, with regard to:

Offices

a. protect very small and small offices (when either stand alone or as part of a larger business premises) throughout the Borough; medium sized offices within the Employment Zones, Higher Order Town Centres, other accessible areas and primarily commercial mews ...

e. require all new business floorspace over 100sq.m to be flexible, capable of accommodating a range of unit sizes;

Light Industrial

f. protect all light industrial uses throughout the Borough; …"

iii) The Third Defendant submitted that the potential reversion to Class B1 use was an irrelevant consideration which ought to be disregarded as a matter of law. The application for planning permission had to be assessed on its merits. If it was acceptable in planning terms, then alternative forms of development were irrelevant. The fact that the Second Defendant would prefer to see a different use was irrelevant. In any event, there was no realistic prospect of a reversion to Class B1 use. The Third Defendant could not be required to do so, and it would be financially disastrous, as she had paid £4.75 million for the property, a valuation which took into account the "hope value" associated with a possible change of use to Class C3 residential, whereas the Class B1 valuation was only £1.4 million. The B8 use, though not as profitable, was viable, in the immediate future. In the longer term, she could benefit from permitted development rights to C3 residential use, and perhaps a change in planning policy.

33. It is common ground among the parties that the Inspector, at paragraph 56, did decide that the loss of a potential reversion to Class B1 ought to be treated as a material consideration. In my judgment, he was entitled to do so, for the reasons put forward by the Claimant and the Second Defendant, which I have summarised above. He accepted that Class B1 use was viable and would justify protection under Policy CF5 criterion (a) as a medium-sized development in an accessible area, close to the town centre. Applying the principles in paragraph 30 of Auld LJ's judgment in Mount Cook, the Inspector was entitled to conclude that the grant of planning permission for residential use would result in "planning harm", namely, the permanent loss of the potential reversion to Class B1 use as permitted development. Class B1 use was authorised and had existed for many years. It would result in the loss of premises for office use of a type which Policy CF5 expressly protected. I do not accept the First and Third Defendants' submission that the "planning harm" to which Auld LJ referred in paragraph 30(4) & (5) necessarily excludes any planning harm arising from the loss of the potential alternative use. This is an unduly restrictive interpretation and inconsistent with the authorities Auld LJ was considering earlier in his judgment e.g. Nottinghamshire County Council and the fall-back cases.
34. Even if I am wrong on that point, I consider that the Inspector was entitled, in the exercise of his discretion, to treat this as an exceptional case, under paragraph 30(6), because of the prior B1 use of the property, the continuing authorisation for B1 use under permitted development, and the local planning policy protecting office use (Policy CF5). I do not accept the First and Third Defendants' submission that paragraph (6) cannot be relied upon because the Inspector did not make an express finding of exceptionality. The Inspector was not writing an examination paper on planning law, and no one assisted him by providing a copy of the judgment in Mount Cook. However, I observe that it would have assisted the Court if the Inspector had given fuller reasons to explain the precise basis upon which he reached his conclusions on this issue.
35. I accept the Claimant's submission that it appears from paragraph 56 of the Decision that the Inspector misdirected himself in law in his consideration of the possible future reversion to Class B1 use as a material consideration. The Inspector said:

"the Council would further contend that the loss of a building that could potentially revert to Class B1 as permitted development should nevertheless be regarded as a material consideration. For reasons explained above in connection with the issue of the present use class of the site however, such an eventuality cannot properly be anticipated in relation to these appeals. The prospects of reversion to Class B1 and the loss of that use contrary to Policy CF5 accordingly also carry minimal weight in connection with these five appeals."

36. It was common ground that the Inspector was there referring to the reasons he had earlier given for concluding that the current use of the property was Class B8, not Class B1. Under the heading "Class of Use of 19 South End", the Inspector said:

"32. Furthermore, as was accepted on behalf of the Rule 6 party at the Inquiry, the determination of the established use of a site is a matter of objective assessment of the character of the actual activity taking place there, rather than the subjective intentions of the Appellant or whether the activity is of a commercial or private nature. This is the approach favoured by the judges in the Appeal Court case of Staffordshire County Council v Riley and Others [2001] EWCA Civ257, cited by the Appellants.

33. From direct inspection, the practical use of the building did not appear contrived for the purpose of the accompanied site visit and it was clear that the property was occupied by stored items over most of the ground floor and much of the first floor, with some items also kept on the top floor of the three storey building. There was no vestigial office use in evidence to which a partial Class B8 use might have been ancillary. Although not fully occupied by stored material on every floor, the property appeared as a single planning unit demonstrably in storage use.

34. The VOA and the Council as reputable public bodies plainly found no ground for non-acceptance of the testimony of the Appellant in connection with the second, successful LDC application. The Appellant was entitled to implement the change of use to Class B8 and it is not appropriate subjectively to interpret her past conduct or anticipate her future actions regarding the appeal property.

35. In all the circumstances, on a proper objective assessment, the current established use of the appeal property is to be regarded as storage under Class B8 of the Use Classes Order."

37. Aside from the Inspector's error in believing that the Council had issued a certificate of lawful use for Class B8 use, which it had never done, the Inspector correctly identified the use of the land by reference to the objectively assessed use, rather than the subjective intentions or motives of the owner or occupier.
38. However, when considering the weight to be accorded to the material consideration of potential reversion to Class B1 use, it was relevant for the Inspector to consider, from an objective standpoint, what the likely future actions of the owner of the property would be (whether the owner was the Third Defendant or another owner in the future). The Inspector erred in disregarding this consideration, apparently on the grounds that "it is not appropriate subjectively to interpret her past conduct or anticipate her future actions regarding the appeal property". On the authorities and in the circumstances of this case, he was required to make an objective assessment of the likelihood of reversion to Class B1 use, when deciding the question of weight, and his Decision indicates that he did not do so.
39. There was substantial evidence at the Inquiry that a reversion to Class B1 use from Class B8 use was likely, on commercial grounds, if planning permission for residential use was refused. In summary, the evidence in support of that submission was as follows:

i) Mr Clack, registered valuer, concluded that there was a substantial demand for offices in Kensington and a property owner could make a competitive return from the property in B1 use. It would be illogical permanently to use the property for B8 storage and warehouse use since the return would be much less: B8 use has a lower rental and market value than offices.

ii) Mr Lomas, senior planning officer, accepted Mr Clack's opinion.

iii) Mr Abbott, planning consultant, agreed that the Third Defendant's evidence did not satisfactorily demonstrate that the continued B8 use of the property was a realistic proposition and reversion to B1 use was the most likely outcome.

40. The Inspector did not refer to this evidence, nor did he give any reasons for rejecting it, though it was plainly relevant to the question whether or not a potential reversion to Class B1 use could be anticipated.
41. The Inspector had given "minimal weight" to the Third Defendant's fall-back position that, if her application for change of use was refused, she would be able to change to residential Class C3 use under Class P of the General Permitted Development Order 2015, after a 4 year qualifying period, no later than January 2018 and prior to expiry of the right in April 2018. The Inspector found, at paragraph 55, that "[l]eaving aside the very short time for physical change to residential use, it would not have been appropriate to anticipate that turn of events, in case of further changes in planning legislation and circumstances in the interim". Therefore this could not have been the explanation for the Inspector's conclusions on the reversion to Class B1 use, and his Decision does not suggest that it was.
42. Finally, in my judgment, the Inspector's erroneous approach to the material consideration of potential reversion to Class B1 use may have affected the outcome of the appeals, and it would be inappropriate for me to exercise my discretion not to quash the decision.