Valentino Plus Ltd v Secretary of State for Communities and Local Government & Ors

“Mixed use” in Class F of Part 3 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 means a number of uses in the same building. It does not require the uses to form a single planning unit or to have a functional relationship. The statutory definition of a flat requires each flat to be separate and self-contained. Class F therefore permits a change of use from one planning unit to up to three planning units: a shop and two flats. A construction requiring physical or functional integration between those uses would contradict the wording and purpose of the GPDO.

The claimant occupied retail premises in the basement, ground and first floors of a building. The landlord’s agent sought a certificate of lawfulness for conversion of the first floor into a self-contained flat with separate access and no internal connection to the shop.

The local planning authority refused the application. On appeal under section 195 of the Town and Country Planning Act 1990, the Inspector concluded that Class F permitted the proposed shop-and-flat use, although the uses were physically and functionally separate and constituted separate planning units. The claimant challenged that decision under section 288. The central issue was the proper construction of “mixed use” in Class F.

1. The claim was dismissed. The Inspector had applied the law correctly in concluding that the proposed development was permitted under Schedule 2, Part 3, Class F(a) of the Town and Country Planning (General Permitted Development) Order 1995.

2. The issue was one of statutory construction. Although “mixed use” is not defined in the GPDO or in the Town and Country Planning Act 1990, the GPDO defines a “flat” as a separate and self-contained set of premises forming part of a building. Class F also permits up to two flats and imposes conditions requiring residential occupation by separate households.

3. Those provisions necessarily contemplate physical and functional separation between the flats and the retail use, and between the flats themselves. Class F therefore permits a change from a single planning unit to up to three planning units: one in A1 retail use and two flats. The phrase “mixed use” does not require a single planning unit containing uses which are functionally related.

4. The approach in Burdle v Secretary of State for the Environment [1972] 1 WLR 1207, including the working rule concerning planning units, did not justify the claimant’s restrictive construction. The planning-unit principles had to be read consistently with the express wording of Class F and the definition of a flat.

5. The claimant’s reliance on the restrictive construction associated with Belmont Riding Stables v Secretary of State 2003 EWHC 1895 was rejected. Requiring functional or physical integration between the shop and flats would be inconsistent with the GPDO.

This was a first-instance claim under section 288 of the Town and Country Planning Act 1990 challenging an Inspector’s decision on an appeal under section 195. No further appellate history is stated in the judgment.