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City council wins Court of Appeal battle over refusal by planning inspector to impose conditions

The Secretary of State for Housing, Communities and Local Government (as was) has lost a case in the Court of Appeal over whether a planning inspector was wrong to refuse to impose conditions on a grant of planning permission on the ground that they were unnecessary.

In Manchester City Council v Secretary of State for Housing, Communities and Local Government [2021] EWCA Civ 1920 3 Grandale Road was a two storey dwelling house and in October 2019 Manchester served an enforcement notice that said it had without planning permission been converted to four commercial units operating as a travel agent (Class A1), 2 x couriers' offices (Class B1) and therapy/medical room (Class D1).

Two recipients of the notices appealed. Manchester opposed this, arguing it should be restored as a dwelling but if planning permission were to be granted it should be subject to a number of conditions concerning its use.

The inspector though granted planning permission for a mixed use of the property as a whole.

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Defending the inspector’s decision, the Secretary of State argued the mixed use did not benefit from the changes in use permitted by section 55 (2) (f) of the Town and Country Planning Act 1990 because, as a mixed use building, it did not fall within any class specified in the Use Classes Order.

The Secretary of State argued the inspector was right that conditions were unnecessary and when the case was in the High Court Julian Knowles J had impermissibly exercised his own planning judgment to decide whether there was one planning unit or multiple ones.

Lewison LJ said: “The key point, to my mind, is the inconsistency between the proposition that a mixed use of a single planning unit does not fall within any use class, and both the inspector's reference to ‘four commercial units’ and also his description of the uses of each unit by reference to a use class. These statements cannot, in my judgment, sensibly co-exist.”

He found the inspector had wrongly concluded that conditions limiting further changes of use were unnecessary.

Julian Knowles J had found the inspector's decision was ambiguous and did not directly state whether the four business rooms were individual planning units and held "the only rational conclusion" was that each of the four rooms amounted to an individual planning unit.

“It is perfectly true, as the Secretary of State submits, that matters of planning judgment are for the decision maker and not for the court,” Lewison LJ said.

“But the decision maker must exercise that planning judgment on a correct legal basis.“

Julian Knowles J’s decision had been that the inspector erred in law and was not an exercise of planning judgment by the judge.

Mark Smulian

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