R Sunilkumar Bansilal Patel v Secretary of State for Communities and Local Government Billy Johal and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 21 December 2016 |
| Neutral Citation | [2016] EWHC 3354 (Admin) |
| Docket Number | Case No: CO/1207/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 December 2016 |
and
and
[2016] EWHC 3354 (Admin)
Mr Justice Ouseley
Case No: CO/1207/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Robert Fookes (instructed by Fortune Green Legal) for the Claimant
Isabella Tafur (instructed by The Government Legal Department) for the Defendant
Hearing dates: 1st December 2016
161, Wimbledon Park Road in the London Borough of Wandsworth, is a corner shop with residential accommodation in part of the ground floor; the first floor is wholly in residential use. There is a detached garage in the garden to the rear of the shop/residential building. Mr Patel, the Claimant, occupies the shop and the residential accommodation under a lease from the parents of Mr Johal, the second Defendant. Underlying this case, but not directly part of it, is Mr Johal's desire to terminate the lease so that his parents might occupy the whole premises as their home.
Mr Johal applied for "prior approval", a relatively new form of planning — related consent, to change the use of the retail accommodation to residential use. Wandsworth LBC refused its approval on the grounds that the loss of the shop would lead to an inadequate provision of the sort of services provided by it. Mr Johal appealed, successfully, to the Secretary of State for Communities and Local Government, the first Defendant. The appeal was dealt with by an Inspector, by written representations. Mr Patel challenges her decision under s288 of the Town and Country Planning Act 1990, and was granted permission to bring the proceedings by Lang J.
Mr Patel challenges the decision on the grounds that (1) the relevant area for the purposes of the prior approval exceeded the permissible limits, (2) the rules of natural justice had been breached in three respects, (3) the policies of the development plan should at least have been taken into account but were not, (4) the fact that the premises were registered as an Asset of Community Value was a material consideration ignored by the Inspector, and (5) she had failed to comply with the public sector equality duty in s149 of the Equality Act 2010.
The legislative and policy framework
"Planning permission may be granted by a development order"; s58(1) of the 1990 Act. "A development order may either (a) itself grant planning permission for development specified in the order for development of any class specified; …"; s59(2). The range of permissions has enlarged over recent years, as have the qualifications to be met before the permission can treated as granted under the relevant Development Order here.
The relevant Order is the Town and Country Planning (General Permitted Development) (England) Order 2015 SI No.596. Article 3(1) provides: "Subject to the provisions of this Order…, planning permission is hereby granted for the classes of development described as permitted development in Schedule 2." Subparagraph (2) makes the grant of any such permission subject to "any relevant exception, limitation or condition specified in Schedule 2."
Schedule 2 Part 3 contains the specified classes. Class M is the relevant one: "retail…to dwelling house." Under the heading "Permitted development", it provides:
" Permitted development
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…."
There are other exclusions of which (g) is noteworthy: the development is not permitted in a safety hazard area or in a military explosives storage area, (impliedly in retail use). Listed buildings are excluded as well. There is no exclusion in respect of Assets of Community Value.
M2 sets out the conditions subject to which the permission is granted. It provides:
"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."
Thus permission is granted for this form of development only if prior approval has been obtained on the specified issues. The language of M2 suggests that before prior approval is sought, a determination is to be sought as to whether prior approval is necessary at all. But I am told that the application for prior approval covers what might seem to be the two aspects in one go, and it is how the application was made here, without controversy.
Paragraph W is headed "Procedure for applications for prior approval under Part 3", but it covers more than procedure. It provides, so far as material:
"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."
Article 2 of the Order defines a "building" so that it includes part of a building; it also means "buildings".
The Decision Letter
The Inspector treated the application for prior approval as relating to "a change of use from retail (Class A1) to one residential unit (Class C3)." She set that out in the summary, in [1] summarising the decision, and in [3] where she noted that this was how the Council had amended the application, and how it had been described on the appeal form. This, she said, was more accurate than the description of the development on the application form: "scheme to convert an existing A1 corner shop back to residential use". There was no issue before her in relation to the building measurements; she pointed out that the Council were satisfied that the proposal complied with the criteria in Class. M.1, and she saw no reason to disagree. The main issue related to the two questions in M.2.(d)(i); and in fact it was the first one which was really at issue: whether there would be an undesirable impact on the adequate provision of services of the sort provided by the shop.
At [8], the Inspector referred to the substantial number of objections submitted in respect of the application and appeal, which made it clear that the current business was valued by the local community and was considered important in meeting their day to day needs. But, as she said, what she had to assess was not the loss of a particular business or a particular use but whether the loss of the retail unit would have an undesirable impact on the adequate provision of services within an area.
She then turned to that issue:
"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."
This last sentence gave rise to ground 3 before me.
At paragraph 10, she turned to the site visit:
"10. When I visited the site, as requested, I took the opportunity to visit the alternative shops suggested by both...
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