Patel, R (on the application of) v Secretary of State for Communities and Local Government & Ors

In a prior-approval application under Class M of the Town and Country Planning (General Permitted Development) (England) Order 2015, the decision-maker must address only the issues specified by the Order, but must consider relevant planning matters bearing on those issues. The statutory development-plan decision-making duty in section 38(6) of the Planning and Compulsory Purchase Act 2004 does not apply unless the statutory conditions for its operation are met. Asset of community value status may be relevant to the adequacy of local services, although it may add nothing where the same local-value evidence is already before the decision-maker. The public sector equality duty requires a conscientious focus on the statutory equality needs, not a particular outcome or weight. An inspector is not generally required to investigate unraised factual points in a written-representations appeal.

The claimant occupied a corner shop with residential accommodation. The second defendant obtained prior approval on appeal for its change from retail to residential use under Class M of the Town and Country Planning (General Permitted Development) (England) Order 2015.

The claimant challenged the Secretary of State’s decision under section 288 of the Town and Country Planning Act 1990. He alleged that the 150-square-metre limit was exceeded, that the procedure was unfair, that the development plan had been disregarded, that the asset’s registration as an asset of community value was ignored, and that the public sector equality duty had not been fulfilled.

The claim was dismissed.

1. Floor-space limit and factual error. The claimant could not rely on survey evidence raised for the first time in the challenge. The alleged measurements were disputed, marginal and not objectively verifiable. Any failure to raise the issue earlier was attributable to the claimant. The strict conditions for an error of fact amounting to an error of law were therefore not met. The claimant could not use section 288 proceedings to remedy a failure to present material evidence during the appeal.
2. Meaning of the relevant building. Class M may require identification of the planning unit comprising the relevant building or part of a building. Whether premises comprise separate uses or a composite mixed use is a question of fact and degree. Residential accommodation and a detached garage may fall within the relevant calculation, depending on their relationship to the retail and residential uses. That issue had not been evidenced before the Inspector.
3. Natural justice. The written-representations procedure did not require circulation of the appellant’s reply representations or notification of an unaccompanied site visit. The Inspector was not obliged to investigate an unraised measurement issue or to act as an inquisitorial auditor. Fairness may require an inspector to invite submissions on an important point considered independently, but that obligation did not arise on these facts. There was no substantive unfairness because the Inspector had appreciated the relevant location, distances and service issues.
4. Development plan. Section 70 of the Town and Country Planning Act 1990 did not apply to prior approval. Nor did section 38(6) of the Planning and Compulsory Purchase Act 2004, because there was no statutory requirement to have regard to the development plan in determining this prior-approval application. The NPPF could not introduce that statutory framework by implication.
5. Asset of community value. The Inspector erred in treating the absence of asset-of-community-value status from Class M.1(g) as making that status irrelevant. It could bear on the defined issue of the adequacy of services. The error was immaterial because the local value of the shop was already fully evidenced and the status added little or nothing.
6. Equality duty. The Inspector had to have due regard to the needs of persons sharing protected characteristics, including age and disability. Express reference to section 149 was unnecessary. Her consideration of the greater difficulties which children, elderly people and disabled people might face in reaching alternative shops showed a proper and conscientious focus on the statutory criteria. The duty did not require particular weight or the outcome most favourable to those groups.

The judgment itself does not state a prior appellate decision. The claimant was granted permission to bring the section 288 proceedings by Lang J.