Carroll v Secretary of State for Communities and Local Government & Ors

An alternative potential future use of land may be a material planning consideration under section 70(2) of the Town and Country Planning Act 1990. Its materiality and weight depend on the circumstances. Where permission for the proposed use would permanently remove an authorised and policy-protected alternative use, the decision-maker may consider that loss and the likelihood of the alternative use occurring. That likelihood must be assessed objectively, including by considering probable future actions of the owner. A failure to conduct that assessment may constitute an error of law.

The claimant, an adjoining owner, challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s decision granting permission for demolition of a building, its replacement by a dwelling, and a change from Class B8 storage to Class C3 residential use.

The claimant argued that the inspector had failed to assess properly the possible reversion to Class B1 office use, which was authorised under permitted development rights and protected by local policy. The central issues were whether that potential reversion was a material consideration and whether the inspector had lawfully assessed its likelihood and weight.

1. Claim allowed. The inspector’s decision allowing appeals C and E and granting planning permission was quashed.
2. An alternative potential future use is capable of being a material consideration under section 70(2) of the Town and Country Planning Act 1990. The statutory language is broad, and the question depends on the circumstances of the individual case.
3. The inspector was entitled to treat possible reversion from Class B8 storage to Class B1 office use as material. Class B1 use was authorised, had existed for many years, was viable, and was protected by Policy CF5. Residential permission could therefore cause planning harm by permanently removing that potential use.
4. The assessment of weight required an objective evaluation of the likelihood of reversion. The inspector erred by treating the owner’s future actions as incapable of objective consideration. Evidence that office use was commercially more attractive and that B8 use was unlikely to continue was relevant, but the inspector neither addressed it nor explained its rejection.
5. The inspector’s approach to identifying the existing use by objective assessment of actual activity was otherwise correct, apart from his mistaken belief that the Council had issued a certificate of lawful use. The error concerning potential reversion may have affected the outcome, so the court declined to leave the decision standing.