Lisle-Mainwaring v Carroll

Planning applications must be determined on their own merits under the Town and Country Planning Act 1990 and the development-plan presumption in the Planning and Compulsory Purchase Act 2004. Under the principles in R. (on the application of Mount Cook Land Ltd.) v Westminster City Council [2003] EWCA Civ 1346, an alternative future use is normally irrelevant where the proposed development complies with policy and causes no planning harm. It may be considered only in exceptional circumstances, and only where there is a real possibility of implementation in the foreseeable future. A merely theoretical reversion to office use therefore carried no material weight. The inspector made no material error of law, and his permissions for residential use were restored.

The appeals arose from an inspector’s decision on five planning appeals concerning No. 19 South End, London. The inspector allowed two appeals for changing the building’s lawful storage use, within Class B8, to residential use, within Class C3. Mr Carroll challenged the decision under section 288 of the Town and Country Planning Act 1990. Lang J allowed the challenge and quashed the inspector’s decision: she held that the possible reversion of the building to Class B1 office use was a material consideration and that the inspector had failed to assess its objective likelihood.

The issues before the Court of Appeal were whether the judge had applied the principles governing alternative uses correctly, whether this was an exceptional case, and whether the inspector had made any material error of law.

The appeals were allowed and the inspector’s decision was restored. Lindblom LJ delivered the judgment, with which Flaux and McFarlane LJJ agreed.

1. The statutory starting point was that planning applications must be determined on their own merits. Under section 70(2) of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004, a proposal complying with the development plan should be approved unless material considerations indicate otherwise.
2. The principles in R. (on the application of Mount Cook Land Ltd.) v Westminster City Council [2003] EWCA Civ 1346 remained controlling. Alternative proposals or uses were normally irrelevant where the proposal caused no planning harm and complied with policy. They could be material only in exceptional circumstances. Even then, the alternative had to be more than inchoate or vague and had to have a real possibility of being implemented in the foreseeable future. The weight given to it remained a matter of planning judgment.
3. The inspector had unequivocally found that No. 19 was lawfully in Class B8 storage use and that its proposed change to Class C3 use did not conflict with policy CF5. His discussion of Class B1 office use in paragraph 56 was expressly hypothetical and alternative to his primary reasoning. He did not find that office use was likely to resume. He concluded that the prospect of reversion could not properly be anticipated and gave it minimal weight.
4. The judge therefore mischaracterised the inspector’s conclusion as a finding that residential use would cause planning harm by permanently removing protected office premises. The case was not exceptional. In any event, the absence of a realistic prospect of reversion was sufficient to exclude the supposed loss of office use from material consideration, or to justify giving it negligible weight.
5. The inspector was not required to infer and determine an unargued case based on the Mount Cook principles. His conclusion was logically and legally sound. Any error was insignificant and could not have affected the result. The decisions allowing the two residential appeals were accordingly restored.

1. Court of Appeal (Civil Division) allowed both appeals and restored the inspector’s decision.
2. Administrative Court (Planning Court), in [2016] EWHC 2462 (Admin), allowed Mr Carroll’s application under section 288 of the Town and Country Planning Act 1990 and quashed the inspector’s decision.