SAN Investments Ltd v Secretary of State for Communities and Local Government & Anor

National Planning Policy Framework paragraph 22 applies to sites allocated for employment use in development plans. It does not extend to every site intended or previously used for employment. Paragraph 22 requires a forward-looking assessment of whether there is no reasonable prospect of the allocated employment use and, if that condition is met, consideration of the application on its merits. It creates no presumption in favour of permission.

Paragraph 51 addresses non-allocated commercial buildings and operates differently. Where there is an identified need for additional housing, it normally favours residential conversion, subject to strong economic reasons against it. The two paragraphs are complementary but apply to different factual and policy situations.

The claimant owned commercial units in Birmingham’s Jewellery Quarter Conservation Area. Birmingham City Council refused permission to convert them from commercial to residential use, and the Planning Inspector dismissed the claimant’s appeal.

The claimant renewed an application for permission to challenge the Inspector’s decision. The principal issue was whether paragraph 22 of the National Planning Policy Framework applied to the site, despite its absence from a development-plan allocation for employment use. The claimant relied on a broad construction of “allocated”, supported by Suffolk Coastal District Council v Hopkins Homes Ltd, [2016] EWCA Civ 168.

1. Application refused. The Inspector had not erred in law in concluding that paragraph 22 of the National Planning Policy Framework was not directly applicable.
2. “Allocated” in paragraph 22 refers to the prior designation of a specific employment use for a site within the relevant development plans. The concept has a particular meaning in the context of the Framework. The site had never been so allocated.
3. Paragraphs 22 and 51 address different but related situations. Paragraph 22 concerns a proposed change from an employment use previously allocated in a plan. It applies only where there is no reasonable prospect of the site being used for that employment purpose. If that condition is satisfied, the application is considered on its merits, without an in-built presumption in favour of permission.
4. Paragraph 51 concerns non-allocated commercial uses. Where there is an identified need for additional housing, it normally favours approval of residential conversion, subject to strong economic reasons why the development would be inappropriate. It therefore provides a broader basis for permitting change of use than paragraph 22.
5. The court adopted the broad and purposive approach to construing the Framework endorsed by the Court of Appeal in Suffolk Coastal District Council v Hopkins Homes Ltd, [2016] EWCA Civ 168. That approach did not justify treating “allocated” as including every form of designation outside a development plan.
6. In any event, the Inspector had found that the commercial units offered a viable future opportunity for economic activity. “No reasonable prospect” required a forward-looking assessment, and that precondition was not met. The alleged error was therefore immaterial. The court added that it would have reached the same conclusion had permission been granted and the claim proceeded to a full hearing.

The Planning Inspector dismissed the claimant’s appeal on 1 June 2016. HHJ David Cooke refused permission on the papers on 10 August 2016. The Administrative Court refused the renewed application for permission.