Bank v Secretary of State for Communities and Local Government & Anor

In a challenge under section 288 of the Town and Country Planning Act 1990, the interpretation of planning policy is a question of law, while its application to the facts is ordinarily a matter of planning judgment. A policy criterion requiring that a proposal should not harm a centre is not converted into a requirement to demonstrate positive enhancement, although the proposal’s comparative benefits may be relevant to assessing harm. An inspector may assess the pattern of uses by reference to current rather than lawful uses where the legal status of neighbouring premises is uncertain, provided the choice is rationally explained. A mistake-of-fact challenge requires an established factual mistake, for which the claimant is not responsible, that materially influenced the decision.

Attijariwafa Bank challenged, under section 288 of the Town and Country Planning Act 1990, an inspector’s dismissal of its appeal against refusal of planning permission for changing the use of premises in Praed Street, Westminster, from retail (Class A1) to a bank (Class A2).

The challenge concerned the inspector’s application of criteria 1 and 4 of Policy SS6(C) of the Westminster Unitary Development Plan. The claimant argued that criterion 1 had been treated as requiring enhancement rather than absence of harm, and that criterion 4 should have been assessed by lawful rather than current uses. It also alleged a material mistake of fact concerning an appeal relating to neighbouring premises.

1. The application was dismissed. The inspector had not erred in law in applying criteria 1 or 4 of Policy SS6(C).
2. Criterion 1 required consideration of whether the proposal would harm the vitality or viability, or character or function, of the centre. Although the policy’s aim was to enhance district centres, the operative criterion required only that the proposal should not cause harm. The inspector’s discussion of whether the bank use would provide greater benefits than lawful retail use had to be read with his findings that the proposal would have a materially harmful effect on the retail character and function of the centre. His reasons were adequate when the decision letter was read as a whole.
3. The inspector was entitled to assess criterion 4 by reference to current uses. The lawful status of the neighbouring café was under investigation, and the outcome of the planning appeal and possible enforcement action concerning the Moroccan consulate was uncertain. In those circumstances, using current uses was a rational and adequately reasoned approach. The claimant was not unlawfully penalised for unauthorised uses by others.
4. The alleged mistake of fact did not satisfy the principles in E v Secretary of State for the Home Department [2004] QB 1044. The inspector correctly stated that an appeal had been submitted. The later information that it had not initially been validated was additional information, not evidence that his stated fact was false. Further, the claimant had contributed to any failure to identify the position earlier, and the information was not material given the other uncertainties.
5. Since neither ground succeeded, it was unnecessary to decide whether an error concerning one criterion would have created a real possibility of a different result in light of the unchallenged finding under Policy CS20.

First-instance judicial review under section 288 of the Town and Country Planning Act 1990. The application challenging the inspector’s planning appeal decision was dismissed.