The First Secretary of State and Another and Hammersmatch Properties Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL,LADY JUSTICE SMITH,SIR CHRISTOPHER STAUGHTON,Lord Justice Pill,Lady Justice Smith |
| Judgment Date | 16 November 2005 |
| Neutral Citation | [2005] EWCA Civ 1360 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2005/0510 |
| Date | 16 November 2005 |
[2005] EWCA Civ 1360
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION – ADMINISTRATIVE COURT
THE HONOURABLE MR JUSTICE COLLINS
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lady Justice Smith and
Sir Christopher Staughton
Case No: C1/2005/0510
MR P COPPEL (instructed by Treasury Solicitors) for the Appellants
MR R GRIFFITHS QC & MR S WHALE (instructed by Thomas Eggar) for the Respondents
Crown copyright©
This is an appeal against the judgment of Collins J dated 24 February 2005 by which he quashed a decision of the First Secretary of State ("the Secretary of State") dated 5 August 2004 following an application under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act"). The judge ordered that the Secretary of State's decision be reconsidered in the light of the judgment. The Secretary of State had dismissed an appeal by Hammersmatch Properties Limited ("the respondents") against a failure by Welwyn Hatfield District Council ("the Council") to give notice within the prescribed period of a decision on an application for planning permission.
The Secretary of State had appointed an inspector to decide the appeal and, having conducted a public local inquiry, the inspector dismissed the appeal and refused planning permission. The Council had opposed the grant of planning permission. They are not represented in these proceedings.
The appeal site
The appeal site is located within the main employment area of Welwyn Garden City being situated about 650m to the east of the primary retail core of the town centre and the railway and bus stations. The building is part of a much larger complex of industrial and associated office buildings some of which have been redeveloped and some of which are empty. The planning application was for the change of use of about half of a large two-storey building from employment use to use as a health and fitness club. The building is about 75 years old, is said to be functionally obsolescent, and is described by the inspector as an "unattractive, industrial building". He said that it had been largely empty for about five years and attempts to let it had been unsuccessful.
The Secretary of State's decision
The inspector stated that there were two main issues in the case:
"Firstly, whether the proposed development is an appropriate use of employment land, having regard to local planning policies, and secondly, whether there is a need for the proposed development in this location, having regard to the sequential approach to leisure development set out in national and local planning policies."
Having referred to local planning policies, the inspector set out the relevant provisions of the Hertfordshire County Council Structure Plan Review 1998 and the Welwyn Hatfield District Plan Alteration No. 1 1998. He also noted that the review of the local plan is completing its final stages, a panel of the council having accepted the report of an inspector dated 15 July 2004, subject to minor amendments. The inspector stated, and was entitled to state, that he attached considerable weight to the plan review.
As to that, the inspector stated:
"In his report, the [local plan] inspector recommended that the Council's proposed policy EMP3, which said that retail and leisure uses are unacceptable in the designated Employment Areas, be deleted. He replaced this with a modified policy EMP2 which, as well as permitting proposals for Class B use in designated employment areas, subject to certain criteria, added the following paragraph: 'Proposals for any other uses in the designated employment areas will only be permitted where it can be clearly demonstrated that the existing land or premises are no longer required to meet future employment requirements and business and community needs'. The same criteria also applied. In accepting this change the Council now propose to insert the text, 'should generally be resisted and' after, 'in the designated areas' and before, 'will only be permitted'."
The inspector also considered the draft deposit version of the Structure Plan alterations to be a material consideration. He referred to a proposed new Policy 14 which
"… asks District Councils to secure 'planned regeneration, particularly through redevelopment, including mixed use schemes to make more efficient use of employment land and buildings. Although this plan is not being progressed because of pending Development Framework changes and the emerging Regional Spatial Strategy for the East of England, its policies are a material consideration, not least because they are based on recent studies on employment land requirements."
The inspector then considered the evidence, in considerable detail, in the context of the local planning policies. At paragraph 14, he stated, on the first issue, that "there is an existing surplus of employment land". He added that when the surplus is taken up, "the District will have to find most of the space for future employment needs by actively recycling its existing employment land …" The inspector referred to policy EMP3 which provides:
"Policy EMP3 – Mixed Use Development Site east of the railway station in Welwyn Garden City.
The site within Employment Area EA1 (as defined on the Proposals Map) is identified as an opportunity area for planned regeneration for mixed use development comprising primarily employment, housing, leisure and rail-related uses. Development of the site shall be in accordance with the criteria in Policy EMP2 and other relevant policies of the Plan relating to the uses proposed. Development shall also comply with a Development Brief to be approved by the Council as supplementary planning guidance. The Development Brief shall include the minimum quantum of Class B [business and industrial] floor space to be provided on the site."
The site has been described as the Chinacorp site. The inspector stated that the policy "not only results in the loss of a sizeable chunk of employment land, significantly reducing any existing surplus, it will also allow new leisure uses such as this closer to Welwyn town centre".
On the employment issue, the inspector concluded:
"15. In any case it seems to me from the wording used that policy 14 of both the Structure Plan and its Review intended any future loss of existing employment land to be identified through the Local Plan process in the same way as the Chinacorp site. This follows the cautious approach the Local Plan Inspector supports. This is what I consider planned regeneration to mean and not the piecemeal redevelopment of parts of individual buildings as proposed here. It is true that the proposal satisfies all of the criteria in policy EMP2 and would itself provide employment. It might also provide the kick-start required to regenerate the complex as a whole. But the level of employment from the proposed change of use would be much lower than if the building was refurbished for business use and a kick-start could also be provided by an imaginative business use scheme.
16. For the above reasons it cannot be said that it has been clearly demonstrated that the existing land or premises is no longer required to meet future employment requirements and business and community needs as required by policy EMP2 of the Local Plan Review. As the proposed change of use would be to Class D2 in the Town and Country Planning (Use Classes) Order, 1987, nor would the proposal comply with policy EMP2 of the currently adopted Local Plan.
17. This leads me to the conclusion on the first issue that the proposed development is not an appropriate use of employment land, having regard to local planning policies."
On the second issue, the inspector set out the relevant planning polices:
"8. Policy CLT2 of the plan Review states that the preferred location for new leisure facilities is in the District's two town centres. If there are no suitable sites available at the centres, but there is a clear need for the facility, the Council may consider proposals on a sequential basis in line with Planning Policy Guidance: Town Centres and Retail Developments (PPG6). This would also be subject to certain criteria, including that the facility would not adversely affect the vitality and viability of the two town centres, and that the site is easily accessible by passenger transport, walking and cycling."
The inspector acknowledged in paragraph 18 that "there is a strong growth in this activity generally and that a demand for further facilities exists in the area". He accepted that "a facility or facilities could beneficially be located in the north of the District over and above the two existing sites to the south of Welwyn."
Mr Griffiths QC, for the respondents, has referred to the difference between the concept of 'demand' and that of 'need', which may in some circumstances be important but the inspector's acceptance that "a facility or facilities" would be beneficial amounts, in planning terms in this context, to a finding of need.
Having referred to the possibility of a swimming pool, as to which he stated that the residents of Welwyn were disadvantaged, the inspector added:
"The appeal site is 150m outside of the 500m walking distance set out in Appendix A of Planning Policy Guidance: Town Centres and Retail Developments (PPG6) and it was conceded that it is therefore an out of centre site using the sequential approach. The appellant has not identified any suitable alternative sites in...
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