“53. As a matter of judgment in the present five appeals, such evidence as is available that the change of 19 South End to residential use would result in an inappropriate reduction in the range of uses available is largely un-quantified and fails to provide strong economic reasons for refusing it.” iv) It was a material consideration that the use could revert to Class B1 office use from Class B8 storage use, as permitted development, whereas the possibility of a reversion to Class B1 would be lost if the use was changed to Class C3 residential use. Class B1 use would justify protection under Policy CF5. However, the prospects of reversion to Class B1 and the loss of that use, contrary to Policy CF5, carried minimal weight in connection with the appeals. The Inspector said: “56. In the different alternative outcome that the extant use of the appeal property were found to remain in Class B1 as offices, the Council, supported by the Rule 6 party, maintains that refusal would still be justified under Policy CF5. In itself, there is merit in this contention because it is the essentially undisputed evidence of the Council that, properly disregarding hope value of future change to residential use, the appeal property would be viable in office use. Moreover, it would justify protection in terms of Criterion a of Policy CF5, as a medium-sized office development in an accessible area, close to the town centre and not subject any of the exclusions of that criterion. Despite the foregoing finding that the current use of the appeal site is properly to be regarded as Class B8, the Council would further contend that the loss of a building that could potentially revert to Class B1 as permitted development should nevertheless be regarded as a material consideration. For reasons explained above in connection with the issue of the present use class of the site however, such an eventuality cannot properly be anticipated in relation to these appeals. The prospects of reversion to Class B1 and the loss of that use contrary to Policy CF5 accordingly also carry minimal weight in connection with these five appeals.”
“An application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision.”
“36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”
“… many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse (Tesco Stores Ltd v. Secretary of State for the Environment[1995] 1 WLR 659 , 780 per Lord Hoffmann).”
“The fact that the refusal of planning permission for a change of use cannot ensure that a current use which is a permitted use will continue was as already indicated the ground of the refusal of planning permission in the case of the Dartford cinema. It is equally true that whereas in the present case the permitted use has not been started, the refusal of an application to change of use cannot ensure that permitted use will ever be started. This was a point strongly relied on. I do not find it a compelling argument. The need for housing is certainly a planning consideration. If permission is given for office use, the permission will almost certainly be implemented and the building will be unavailable for housing. If permission for office use is refused, there is at least a fair chance that the building will be used for housing rather than being allowed to stand empty. That the desirability of preserving an existing use is a regular ground for the refusal of planning permission was, Mr Woolf said, shown by the fact that planning permission to build is frequently refused on the ground that the land on which it is sought to build is agricultural land.”
“… In Clyde & Co. v. Secretary of State for the Environment [1977] 1 W.L.R. 926 it was held that the desirability of retaining an existing use of land was a material consideration proper to be taken into account under section 29(1) of the Act of 1971. In Westminster City Council v. British Waterways Board [1985] A.C. 676 this House, on a question undersection 30(1)(g) of the Landlord and Tenant Act 1951 , held among other things that the board, as landlords of certain premises, had established a reasonable prospect of success in their notional application for planning permission for their intended use of these premises, which was for a marina. The council had founded on the desirability of retaining the existing use of the land, namely as a street cleansing depot, as being a ground which made it unlikely that planning permission would be granted. Lord Bridge of Harwich, in a speech concurred in by the rest of their Lordships, accepted, at p. 682, that the desirability of preserving an existing use of land might by itself afford a valid planning reason for refusing permission for a change of use. Later he said, at p. 683: “In a contest between the planning merits of two competing uses, to justify refusal of permission for use B on the sole ground that use A ought to be preserved, it must, in my view, be necessary at least to show a balance of probability that, if permission is refused for use B, the land in dispute will effectively be put to use A.”
“If the judgment is made, whether through the development plan process of indeed outside it, that it appears desirable to preserve the option of using a piece of land for a purpose seen to be of benefit in the public interest for the country or the local community, this is in principle, a material planning consideration for the purposes of ss.70 and 54A of the Act. I understood this to be common ground in the case. The weight given to the consideration will vary hugely from case to case… Each case will turn on its own merits, but the importance of the project or proposal, its desirability in the public interest, are undoubtedly matters to be weighed. Therefore, in considering whether to grant planning permission for a proposal (use B) which will pre-empt the possibility of desirable future use (use A), the relative desirability of the two uses will have to be weighed. In striking the balance, the likelihood of use A actually coming about is doubtless a highly material consideration.”
“In my judgment where, as in the present case, the decision maker is deciding whether planning permission for the development applied for should be granted in order to avoid the greater harm that would result from the resumption of some particular lawful use of the application site, it is inescapably necessary that he should consider the likelihood of such resumption taking place. This is so, it seems to me, for two reasons. Firstly, unless the resumption of the use is a realistic possibility, it would be Wednesbury unreasonable to treat the harm that would result from such resumption as a reason for granting permission for the new development. Secondly, the degree of probability of the use being resumed will, or at least may, be a material consideration, to be weighed by the decision maker along with the harm that the use would cause and the other pros and cons of the new development proposed. If the harm that would arise from the resumed use would be very serious, it may well be that a lower degree of probability of its resumption would be sufficient to justify the grant of permission than in the case of less serious harm. The assessment of the probability and the weight to be attached to it in the overall planning judgment, however, are matters for the decision maker.”
“(1) in the context of planning control, a person may do what he wants with his land provided use of it is acceptable in planning terms; (2) there may be a number of alternative uses which he could choose, each of which would be acceptable in planning terms; (3) whether any proposed use is acceptable in planning terms depends on whether it would cause planning harm judged according to relevant planning policies where there are any; (4) in the absence of conflict with planning policy and/or other planning harm, the relative advantages of alternative uses on the application site or of the same use on alternative sites are normally irrelevant in planning terms; (5) where… an application proposal does not conflict with policy, otherwise involves no planning harm and, as it happens, includes some enhancement, any alternative proposals would normally be irrelevant; (6) even, in exceptional circumstances where alternative proposals might be relevant, inchoate or vague schemes and/or those which are unlikely or have no real possibility of coming about would not be relevant or, if they were, should be given little or no weight.”
“31. Turning to the circumstances of this case, it is clear that Redevco’s application, if considered on its own, would not be harmful in a planning sense and would enhance the Building and the Conservation Area of which it is part. Stopping there, and still considering the application on its own, that is more than Redevco needs to establish the grant of permission ….. However the issue raised by Mount Cook …. is that the proposals in Redevco’s application …. would or could be harmful in a wider planning sense of frustrating or endangering a more favourable solution for the Building and the Area…. 32. In my view, where application proposals, if permitted and given effect to, would amount to a preservation or enhancement in planning terms, only in exceptional circumstances would it be relevant for a decision-maker to consider alternative proposals, not themselves the subject of a planning application under consideration at the same time (for example, in multiple change of use applications for retail superstores called in by the Secretary of State for joint public inquiry and report). And, even in an exceptional case, for such alternative proposals to be a candidate for consideration as a material consideration, there must be at least a likelihood or real possibility of them eventuating in the foreseeable future if the application were to be refused. I say “likelihood” or “real possibility”, as the words tend to be used interchangeably in some of the authorities; see, e.g. New Forest District Council v. Secretary of State (1996) 71 P. & C.R. 189, per Mr Nigel Macleod, sitting as a Deputy High Court Judge. If it were merely a matter of a bare possibility, planning authorities and decision-makers would constantly have to look over their shoulders before granting any planning application against the possibility of some alternative planning outcome, however ill-defined and however unlikely of achievement. Otherwise they would be open to challenge by way of judicial review for failing to have regard to a material consideration or of not giving it sufficient weight, however remote. 33. When approaching the matter as one of likelihood or real possibility, as I have already indicated, it may often be difficult to distinguish between the concepts of materiality and weight; and both, particularly weight, are essentially matters of planning judgment. But I do not consider that a court, when considering the rationality in a judicial review sense of a planning decision, should be shy in an appropriate case of concluding that it would have been irrational of a decision-maker to have had regard to an alternative proposal as a material consideration or that, even if possibly he should have done so, to have given it any or any sufficient weight so as to defeat the application proposal. 34. In so concluding, I have been assisted by the judgment of Laws L.J. in this Court in R. (on the application of Jones) v North Warwickshire Borough Council[2001] EWCA Civ 315 . In that case a planning committee considering an application for planning permission to construct dwelling houses declined to consider an alternative site referred to by objectors and granted permission. Laws L.J., with whom Aldous L.J. and Blackburne J. agreed, upheld the committee’s decision, holding that they were entitled to disregard the alternative site. In so holding, he stated as a general proposition, and after reference to authorities (including the judgment of Simon Brown J., as he then was, in Trusthouse Forte Hotels Ltd v Secretary of State (1986) 53 P. & C.R. 293, at 299), that consideration of alternative sites would be relevant to a planning application only in exceptional circumstances. However, in his explanation of the proposition, it is plain that, in his use of the word “relevance”, he had in mind both materiality and weight, a practical approach with which, as I have just indicated, I respectfully agree. Whilst that case concerned a possible alternative site for the sought development, and Mount Cook’s proposals include alternative options for the application site, the approach of Laws L.J. seems to be equally applicable….. 35. In addition, there is nothing in the South Buckinghamshire or the Nottinghamshire County Council cases to support the view that, where on the facts before an Inspector, there is no likelihood or real possibility of an alternative proposal proceeding if the planning application under consideration were refused, that it should be refused anyway against the bare possibility of that or some other alternative more beneficial scheme eventuating. Indeed, such a suggestion is directly contrary to the concluding words in para.[36] of Mr Lockhart-Mummery’s judgment in the Nottinghamshire County Council case (see para.[22] above), more aptly going to weight rather than whether the alternative is a material consideration: “In striking the balance, the likelihood of use A actually coming about is doubtless a highly material consideration.”
“17. On behalf of the appellant, Mr Village Q.C. advances two grounds of appeal. Firstly he says that, as part of the appellant’s case at the inquiry, Mr Turner produced a development appraisal which demonstrated that the refurbishment of the existing buildings would not be economically viable. … 18. The second ground is linked with the first. Mr Village submitted that the Secretary of State’s decision was based on mere speculation, or a “theoretical” as opposed to a “real” possibility that an occupier who wished to use the retained buildings with the rail facilities would be found within the period of five years. ….. 21. In order for a prospect to be a real prospect, it does not have to be probable or likely: a possibility will suffice. It is important to bear in mind that “fall back” cases tend to be very fact-specific. One might envisage a case where it was thought by the inspector or the Secretary of State that the fall-back position - for example, an old planning permission which was still capable of implementation - would be very damaging indeed if it was to be implanted. The point did not arise in Brentwood, where it was being argued that the impact of that which was permitted development would be much the same as the impact of the development for which planning permission was being sought. However, in a case where the adverse consequences of implementing the fall-back position would be very significant, Mr Village accepted that there would be no reason why the Secretary of State could not conclude, as a matter of planning judgment, that even if the risk of implementing the fall-back position was very slight indeed--an outside chance perhaps--the seriousness of the harm that would be done, if planning permission was not granted and the fall- back position was implemented, was such that the risk was not acceptable so that planning permission should be granted. 22. It is important, in my judgment, not to constrain what is, or should be, in each case the exercise of a broad planning discretion, based on the individual circumstances of that case, by seeking to constrain appeal decisions within judicial formulations that are not enactments of general application but are themselves simply the judge’s response to the facts of the case before the court. By the same token, if the Secretary of State concludes, as a matter of planning judgment in any particular case, that there would be significant planning advantages if certain buildings were to be reused in the manner contemplated in an application for permission for their retention, then there is no reason why the Secretary of State should not be entitled to say that there may well be only an outside chance of these buildings being reused, but it is well worth keeping that option open at least for a period of five years. 23. In the present case, both the inspector and the Secretary of State recognised that it was uncertain whether or not any user would be found for the retained buildings in association with the railway infrastructure (see the passages from the inspector’s report and the decision letter set out above). But they plainly both thought that there was a possibility that they might be (“not convinced no use would be forthcoming”), and that the significant benefits, if they were to be so used, justified the risk that unoccupied buildings would be left in the countryside, bearing in mind Condition 7 which “sufficiently mitigated” that risk. 24. Those conclusions were a matter of planning judgment for the inspector and Secretary of State respectively. …”
“68. I accept Mr Harwood’s submission that substantial prejudice was caused to the Claimant because if he had been given the opportunity to make representations on whether the building was in B8 use and on the merits of a change from B8 to C3 he could have made a number of points that, in my view, may have affected the outcome of the appeal..”
“Location of Business Uses The Council will ensure that there is a range of business premises within the Borough to allow businesses to grow and thrive; to promote the consolidation of large and medium offices within town centres; support their location in areas of high transport accessibility; and protect and promote employment zones for a range of small and medium business activities which directly support the function and character of the zone. To deliver this the Council will, with regard to: Offices a. protect very small and small offices (when either stand alone or as part of a larger business premises) throughout the Borough; medium sized offices within the Employment Zones, Higher Order Town Centres, other accessible areas and primarily commercial mews ... e. require all new business floorspace over 100sq.m to be flexible, capable of accommodating a range of unit sizes; Light Industrial f. protect all light industrial uses throughout the Borough; …”
“the Council would further contend that the loss of a building that could potentially revert to Class B1 as permitted development should nevertheless be regarded as a material consideration. For reasons explained above in connection with the issue of the present use class of the site however, such an eventuality cannot properly be anticipated in relation to these appeals. The prospects of reversion to Class B1 and the loss of that use contrary to Policy CF5 accordingly also carry minimal weight in connection with these five appeals.”
“32. Furthermore, as was accepted on behalf of the Rule 6 party at the Inquiry, the determination of the established use of a site is a matter of objective assessment of the character of the actual activity taking place there, rather than the subjective intentions of the Appellant or whether the activity is of a commercial or private nature. This is the approach favoured by the judges in the Appeal Court case of Staffordshire County Council v Riley and Others [2001] EWCA Civ257, cited by the Appellants. 33. From direct inspection, the practical use of the building did not appear contrived for the purpose of the accompanied site visit and it was clear that the property was occupied by stored items over most of the ground floor and much of the first floor, with some items also kept on the top floor of the three storey building. There was no vestigial office use in evidence to which a partial Class B8 use might have been ancillary. Although not fully occupied by stored material on every floor, the property appeared as a single planning unit demonstrably in storage use. 34. The VOA and the Council as reputable public bodies plainly found no ground for non-acceptance of the testimony of the Appellant in connection with the second, successful LDC application. The Appellant was entitled to implement the change of use to Class B8 and it is not appropriate subjectively to interpret her past conduct or anticipate her future actions regarding the appeal property. 35. In all the circumstances, on a proper objective assessment, the current established use of the appeal property is to be regarded as storage under Class B8 of the Use Classes Order.”