Property law reports

TOWN AND COUNTRY PLANNING: PLANNING PERMISSION

Development - planning authority refusing permission for extension to residential property - inspector recommending that claimant's appeal be refused - whether inspector entitled to find impact of development on neighbours unacceptable - sections 78 and 288 of Town and Country Planning Act 1990

McGowan v Secretary of State for Transport, Local Government and the Regions: Queen's Bench Division: Administrative Court (Mr Justice Sullivan): 18 March 2002

The claimant applied for planning permission for substantial alterations to his four-bedroom property, including three further bedrooms and a two-car garage.

When the local planning authority failed to determine his application within the prescribed time limit, the claimant appealed to the secretary of state under section 78 of the Town and Country Planning Act 1990.

The planning inspector made a site visit and received written representations before recommending that the appeal be dismissed.

The inspector identified two main areas of concern, namely the impact of the proposed development upon the surrounding area, and the outlook, light and privacy of the occupants of neighbouring houses.

The inspector found in favour of the claimant on the first issue, but against him on the second.

On his site visit, the inspector had been unable to gain entry to the property and, in consequence, had been able to view neighbouring properties only at ground-floor level.

In his decision letter, the inspector said that it had appeared from his visit that part of one of the neighbouring properties immediately behind the boundary with the claimant's property was a patio, whereas, in fact, it was a flat-roofed building.

The claimant applied, under section 288 of the Town and Country Planning Act 1990, to quash the inspector's decision on the basis, among other things, that the error on a question of fact had led him into error as to the impact of the proposed development on the neighbouring properties.

Held: The claim was dismissed.

The inspector was entitled to reach the conclusion that the living conditions of the occupants of neighbouring properties would be harmed to an unacceptable degree if the proposed development were to go ahead.

The error of fact that the inspector had made was understandable, given that the flat roof was immediately behind the boundary wall and that he was able to view the property only from ground level.

The inspector had expressed only a tentative view that there was a patio behind the wall, and the court was satisfied that the error had not affected his overall conclusions.

The inspector was expressly required to consider the effect of the proposed development upon the outlook and privacy of the neighbouring dwellings.

That was a matter of planning judgement for the inspector, which it was necessary for him to assess from all the evidence before him.

The weight to be given to any particular piece of evidence was a matter for the inspector, and his finding in this case was one that was plainly open to him.

Anna Mathias (instructed by Chesham & Co) for the claimant.

Sarah-Jane Davies (instructed by the Treasury Solicitor) for the defendant.

TOWN AND COUNTRY PLANNING: LAWFUL USE CERTIFICATE

Lawful use certificate - material change of use - respondent council refusing lawful use certificate - inspector granting certificate on ground that proposed use not materially different from notional permitted use of premises - judge quashing certificate - whether inspector applying wrong test - section 192 of Town and Country Planning Act 1990 - appeal dismissed

Waltham Forest London Borough Council v Secretary of State for Transport, Local Government and the Regions: Court of Appeal (Lords Justice Schiemann, Tuckey and Jonathan Parker): 15 March 2002

The applicant applied, under section 192 of the Town and Country Planning Act 1990, to the respondent council for a lawful use certificate in respect of its proposed use of a dwelling house as residential accommodation for six people recovering from mental illness, plus one carer.

Such a certificate was available where the change from the existing use to the proposed use did not require planning permission, not being an act of development within the meaning of section 55 of the 1990 Act.

The applicant argued that the proposed use would continue to fall within class C3, namely use as a single dwelling house for which planning permission already existed.

class C3 covered use 'by not more than six residents living together as a single household (including a household where care is provided for residents)'.

The council refused the certificate on the ground that the use would fall outside class C3, as seven people in total would be living in the premises.

The applicant appealed to the secretary of state.

The inspector upheld the council's finding that the proposed use did not fall within the same use class as the existing use.

However, he allowed the appeal on the ground that the character of the proposed use would not be materially different from that for which planning permission already existed, so that there would be no material change of use.

He did not enquire as to the actual use of the premises at the time, but considered that use as a dwelling by a large family could, especially where there were children or elderly relatives, include an element of care.

He accordingly granted the lawful use certificate.

The council challenged the basis of that decision under section 288 of the 1990 Act.

The judge quashed the certificate on the ground that the inspector had erred in taking use by a large family as the basis for his comparison when there was no evidence that the house was being so used at the time of the application.

The secretary of state appealed.

Held: The appeal was dismissed.

In deciding whether to grant a lawful use certificate, the test was whether the proposed change of use was a material change of use so as to require planning permission.

The relevant comparison for that purpose was between the existing and the proposed use.

Although a change from the existing use to a notional use by a large family required no further planning permission, and a change from that notional use to the proposed use was not a material change, that did not mean that the overall change from the existing use to the proposed use was not material.

There was no justification, when applying section 192, for interposing a notional permitted use between the existing and proposed uses, although that approach might be relevant in deciding whether planning permission ought to be granted for the proposed use.

It followed that the inspector had applied the wrong test, and the judge had been right to overturn his decision to grant the lawful use certificate.

Article 1 of the first protocol to the Human Rights Act 1998 did not affect that construction of section 192.

Even supposing that the planning legislation amounted to an interference with a person's right to the peaceful enjoyment of his possessions, to control material changes of use to the extent of informing an individual that planning permission was required for a proposed activity was proportionate to the legitimate aim pursued by that legislation.

Philip Sales and Rupert Warren (instructed the Treasury Solicitor) for the appellant.

Richard Langham (instructed by the solicitor to Waltham Forest London Borough Council) for the respondents.