QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN (on the application of) SUNILKUMAR BANSILAL PATEL
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|SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
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|WANDSWORTH BOROUGH COUNCIL
Isabella Tafur (instructed by The Government Legal Department) for the Defendant
Hearing dates: 1st December 2016
Crown Copyright ©
MR JUSTICE OUSELEY :
The legislative and policy framework
M. Development consisting of—
(a) a change of use of a building from—
(i) a use falling within Class A1 (shops) or Class A2 (financial and professional services) of the Schedule to the Use Classes Order; …or
(iii) a mixed use combining use as a dwelling house with—…
(bb) a use falling within either Class A1 (shops) or Class A2 (financial and professional services) of that Schedule (whether that use was granted permission under Class G of this Part or otherwise), to a use falling within Class C3 (dwelling houses) of that Schedule, and
(b) building operations reasonably necessary to convert the building referred to in paragraph (a) to a use falling within Class C3 (dwelling houses) of that Schedule.
Development not permitted
M.1 Development is not permitted by Class M if—
(c) the cumulative floor space of the existing building changing use under Class M exceeds 150 square metres;
(d) the development (together with any previous development under Class M) would result in more than 150 square metres of floor space in the building having changed use under Class M…."
"M.2(1) Where the development proposed is development under Class M(a) together with development under Class M(b), development is permitted subject to the condition that before beginning the development, the developer must apply to the local planning authority for a determination as to whether the prior approval of the authority will be required as to—…(d) whether it is undesirable for the building to change to a use falling within Class C3 (dwelling houses) of the Schedule to the Use Classes Order because of the impact of the change of use—
(i) on adequate provision of services of the sort that may be provided by a building falling within Class A1 (shops) or, as the case may be, Class A2 (financial and professional services) of that Schedule, but only where there is a reasonable prospect of the building being used to provide such services, or
(ii) where the building is located in a key shopping area, on the sustainability of that shopping area, and
(e) the design or external appearance of the building, and the provisions of paragraph W (prior approval) of this Part apply in relation to that application."
"W.(1) The following provisions apply where under this Part a developer is required to make an application to a local planning authority for a determination as to whether the prior approval of the authority will be required.
(3) The local planning authority may refuse an application where, in the opinion of the authority—
(a) the proposed development does not comply with, or
(b) the developer has provided insufficient information to enable the authority to establish whether the proposed development complies with, any conditions, limitations or restrictions specified in this Part as being applicable to the development in question."
The Decision Letter
"9. Concern about the adequate provision of services is focused on the area to the north west of No 161 where the Council consider there are no retail units. To support this, the Council have produced a map which plots the nearest alternative retail provision using a 400m radius as a measure of accessibility. This 400m radius is taken from policy DMTS 7 of the Wandsworth Local Development Framework Development Management Policies Document (2012) which recommends that 400m is a reasonable walk distance to a shop. However, as this is an appeal seeking prior approval, subject to satisfying the requirements of Class M, consideration of compliance with development plan policy is not required."
"10. When I visited the site, as requested, I took the opportunity to visit the alternative shops suggested by both parties and the general area. I observed, as mentioned by the appellant, that there is an Esso petrol station which is not included on the Council's map. The petrol station is located close to the junction of West Hill and Sutherland Grove and whilst it is a sui generis use it includes a retail shop that sells convenience goods that would meet the day-to-day needs of the local community. When plotted the petrol station provides a retail facility to the north west of No 161. Whilst a limited number of properties would still fall outside of the 400 metre radius advocated by the Council, it is estimated that all the properties would fall within a 550 metre radius of an alternative facility."
That paragraph gave rise to the natural justice issues in ground 2.
"11. I am aware of the concerns raised by the Council and a number of third parties that for some users, particularly children, the elderly or those with mobility issues that the distance to alternative facilities would be significant. However, I consider that given the limited increase in distance that some people would need to travel to alternative shops the provision of shops within the area would remain adequate albeit that they would be reduced."
"12. Paragraph 70 of the Framework advocates that planning policies and decisions should guard against the unnecessary loss of valued facilities and services, particularly where this would reduce the community's ability to meet its day-to-day needs. With regards to No 161 many local residents have emphasised the importance to the local community of the additional services that the current tenants of No 161 provide to the local community. Amongst other things, these include signing for parcels, holding spare keys and checking on the welfare of elderly residents. Whilst it is clear from the comments submitted that these services are valued by the local community, Class M.2.(d) (i) refers to the adequate provision of services of the sort that may be provided by a building falling within Class A1 and I consider that these services, whilst of obvious benefit to the local community, are above those necessary to meet day-to-day needs and those that a corner shop/newsagents would normally provide.
13. If the retail unit at No 161 were no longer to operate I consider that the an [sic] adequate provision of shops providing a variety of services in the local area would still be maintained and the community's ability to meet their day to day needs, in accordance with the requirements of paragraph 70 of the Framework would be retained. Consequently, the proposal would comply with the requirements of the Framework."
Ground 1: validity of the application or approval
Ground 2: Natural Justice
Ground 3: the role of the development plan
"W(4) Sub-paragraphs (5) to (8) and (10) do not apply where a local planning authority refuses an application under sub-paragraph (3) and for the purposes of section 78 (appeals) of the  Act such a refusal is to be treated as a refusal of an application for approval.
(10) The local planning authority must, when determining an application—
(b) have regard to the National Planning Policy Framework issued by the Department for Communities and Local Government in March 2012, so far as relevant to the subject matter of the prior approval, as if the application were a planning application; …"
"150. Local Plans are the key to delivering sustainable development that reflects the vision and aspirations of local communities. Planning decisions must be taken in accordance with the Development Plan unless material considerations indicate otherwise."
Ground 4: Asset of Community Value (ACV)
Ground 5: the public sector equality duty and s149 Equality Act 2010
"(1) A public authority must, in the exercise of its functions, have due regard to the need to—
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;…."
"(i) at paragraphs [77-78]
" Contrary to a submission advanced by Ms Mountfield, I do not accept that this means that it is for the court to determine whether appropriate weight has been given to the duty. Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then as Dyson LJ in Baker (para ) made clear, it is for the decision maker to decide how much weight should be given to the various factors informing the decision.
 The concept of 'due regard' requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker. In short, the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors. If Ms Mountfield's submissions on this point were correct, it would allow unelected judges to review on substantive merits grounds almost all aspects of public decision making."