Westminster City Council v Secretary of State for Communities And Local Government & Anor

A mixed use may exist throughout a single planning unit even though its different elements cannot be assigned to exclusive areas. Whether hotel and hostel uses coexist is a matter of planning judgment on all the facts; the recognised indicators are relevant but do not form a definitive checklist.

A material change of use occurs where the character of the use changes. Its effects on neighbouring premises are relevant to that assessment. Where noise and disturbance form an important part of the evidence, the decision-maker must consider those off-site effects and give adequate reasons addressing them.

The council issued a planning enforcement notice alleging that premises lawfully used as a class C1 hotel had undergone a material change to mixed hotel and hostel use. An inspector allowed the lessee’s appeal under grounds (b) and (c) of section 174 of the Town and Country Planning Act 1990. She found neither a mixed use nor, alternatively, a material change of use.

Supperstone J dismissed the council’s statutory appeal in [2014] EWHC 1248 (Admin). The council appealed to the Court of Appeal. The issues were whether the inspector had wrongly required hotel and hostel activities to occupy exclusive parts of the building, and whether she had failed to consider the off-site effects of the current use when deciding materiality.

1. Appeal allowed. The inspector’s decision was erroneous in law on both principal issues. Richards LJ gave the judgment, with which Gloster and Longmore LJJ agreed.

2. A composite or mixed use does not require each element to occupy an exclusively identifiable part of the planning unit. Different activities may be mingled throughout the premises. The inspector had asked whether one part was used exclusively as a hotel and another exclusively as a hostel. That was the wrong legal approach.

3. The existence of mixed hotel and hostel use remained a matter of planning judgment on the facts as a whole. The factors discussed in Panayi were relevant but did not amount to a definitive checklist. Nevertheless, the inspector’s uncontested findings concerning dormitories and shared facilities, the predominantly young clientele, servicing and supervision, and the occasions when either hotel-type or hostel-type use predominated pointed strongly towards mixed use. Without the exclusive-use error, no other conclusion was reasonably available.

4. The test for a material change of use is whether the character of the use has changed. When applying that test, effects on neighbouring premises are a relevant factor. Depending on the facts, it is necessary to consider both what occurs on the land and the resulting off-site impact.

5. Complaints of noise and disturbance affecting residential amenity were an important part of the council’s evidence and submissions. The inspector mentioned them while considering the characterisation of the use, but omitted them from her separate assessment of whether its character had materially changed. She therefore failed to consider a material consideration. Alternatively, her failure to explain how she dealt with that issue was a serious inadequacy of reasoning.

6. Under paragraph 26.1(15) of Practice Direction 52D to the Civil Procedure Rules 1998, the court would not itself set aside or vary the inspector’s decision. The matter was remitted to the Secretary of State for rehearing and determination in accordance with the court’s opinion. A separate ground (f) argument, which had neither been determined by the inspector nor raised by respondent’s notice, was not decided.

1. Court of Appeal (Civil Division): In [2015] EWCA Civ 482, allowed the council’s appeal and directed that the enforcement appeal be remitted to the Secretary of State for rehearing and determination.
2. High Court, Administrative Court: Supperstone J, in [2014] EWHC 1248 (Admin), dismissed the council’s appeal under section 289 of the Town and Country Planning Act 1990.
3. Planning inspector: Allowed the lessee’s appeal against the enforcement notice under grounds (b) and (c) of section 174 of the Town and Country Planning Act 1990.