Change of use

Claimant owning retail unit in shopping parade change of use of unit to residential dwelling local authority serving enforcement notice upon claimant claimant appealing inspector concluding change of use harming vitality and viability of parade as shopping area and dismissing appeal whether inspector erred in considering parades future use claim dismissedWells v Secretary of State for the Environment, Transport and the Regions: Queens Bench Division: Turner J: 27 March 2001The claimant owned a retail unit that was part of a shopping parade.

The defendant local authority served an enforcement notice upon the claimant, requiring him to cease the use of the premises for a residential dwelling.

At the ensuing hearing, the claimant appealed against the notice, contending, among other things, that three of the nine units in the parade were either empty, or occupied contrary to planning control.

Only five of the units were active and none of these provided fundamental and valuable everyday retail use such as grocers, bakers or greengrocers.

There were also examples of run-down parades in the vicinity.

The claimant submitted that there was no evidence to suggest that a retail demand existed or would be forthcoming and, that in its current state, the parade had an air of neglect and dereliction.Following the hearing, the inspector concluded in his decision letter that the unauthorised change to residential dwelling conflicted with the adopted and emerging local plans.

He found that the units change of use had resulted in harm to the character and appearance of its setting, which in turn affected the viability and vitality of the parade as a designated shopping area.

He also found that it had not been demonstrated that the unit had no retail or compatible commercial role to play in the parade and, accordingly, dismissed the appeal.The claimant sought to quash the inspectors decision, pursuant to section 289 of the Town and Country Planning Act 1990, principally on the ground that he had erred in looking to the future use of the parade and had failed to consider its current state.Held: The claim was dismissed.

1.

The inspector had considered not only the visual appearance and effect upon the parade, of the suggested change of use, but also the impact that it would have had upon the parade as a whole.

He was entitled and obliged to have regard to emerging policy that continued to designate the parade as a shopping area.

2.

The inspector was also obliged to consider the presence of unoccupied units in the parade but was not obliged to conclude that simply because they were unoccupied at present, and had been for some time, that the parade was dead to the possibility of becoming a local retail facility.

It had to be recognised that any such parade depended, to an extent, not just upon the presence of individual retail units, but also upon the flow of the general public to the area as generated by those units.

Conversion of a unit to a single residential dwelling would, accordingly, diminish the flow along the parade.

The inspector was fully entitled to take that factor into consideration in the way that he did.

He was not obliged to exclude from his consideration the possibility of future retail or other compatible uses, notwithstanding the empty units at the time.Kevin Leigh (instructed by Edge Leyden & Ellis, Westbourne) for the claimant; Phillip Coppel (instructed by the Treasury Solicitor) for the first defendant.