Stroud v North West Leicestershire District Council

The claimant challenged the grant of planning permission for change of use from a shop (Class A1) to a hot food takeaway (Class A5), arguing the decision-maker failed to consider Local Plan policies Ec12 and IF2 and breached the Public Sector Equality Duty in s 149 Equality Act 2010. The court held that class A5 use was a "main town centre use" under the National Planning Policy Framework glossary and that Policy Ec12 was not engaged because Policy Ec10 governs changes from shopping to non-shopping uses and had been considered. The court further held that although a local shop can in principle be a "key service" under IF2, the material before the council did not raise a real issue that no reasonable alternatives existed and therefore the failure to address IF2 was not unlawful. On the PSED point the judge held that no formal equality assessment was required where the representations did not substantively raise an impact on protected groups and that the decision-maker had had sufficient regard to the representations about elderly users. The claim was dismissed.

Background and nature of the claim: The claimant sought judicial review of the defendant council's decision of 13 April 2018 to grant planning permission for change of use of 10 Bondgate from a shop (GoLocal) to a Domino's pizza (A5). Permission to bring the claim was granted on 4 July 2018. The principal legal challenges were (i) that the council failed to consider Local Plan Policy Ec12 (Local Centres), (ii) that it failed to consider Policy IF2 (Community and Cultural Facilities / loss of key services), and (iii) that the decision breached the Public Sector Equality Duty (s 149 Equality Act 2010) by inadequate consideration of impacts on elderly residents.

Issues framed by the court:

• whether Policy Ec12 applied to a change from a shop to another main town centre use (A5);
• whether Policy IF2 was engaged because the shop amounted to a "key service" whose loss would materially affect local residents;
• whether the Public Sector Equality Duty required further or explicit consideration of impacts on elderly persons in the decision-making process.

Court's reasoning and findings:

• On Ec12 the court examined the NPPF glossary definition of "main town centre uses" and the Local Plan explanatory text, concluding that hot food takeaway (A5) properly falls within the NPPF concept of main town centre uses. Policy Ec12's wording was ambiguous, but read with the plan as a whole and in particular Policy Ec10 and its explanatory text, Ec12 did not apply to a change from one main town centre use to another. Policy Ec10 had been considered and rejected on planning grounds; omission of Ec12 therefore involved no legal error.
• On IF2 the court accepted that while some shops may qualify as "community facilities" or "key services" in principle, the question depends on impact and availability of alternatives. The officer's report and committee discussion did not reveal any substantive argument or evidence that reasonable alternatives did not exist or that loss would cause the serious harms contemplated by the policy. Given the material before the council, failure to address IF2 was not an error of law.
• On the PSED the judge emphasised that s 149 does not impose a requirement of formal or disproportionate process in every case; a decision-maker must have due regard where issues are substantively raised. Here representations mentioning elderly users were recorded and, in light of the absence of evidence that alternatives were inconvenient or unavailable, the duty was sufficiently discharged. No further equality assessment was required.

Outcome: The claim was dismissed for lack of legal error in relation to the Local Plan policies and the Public Sector Equality Duty.

The claim is dismissed. The court held that (a) the proposed A5 use was a "main town centre use" within the NPPF glossary and Policy Ec12 was not engaged when a main town centre use is replaced by another such use; Policy Ec10 was the relevant policy and had been considered; (b) although a shop can in principle be a "key service" under Policy IF2, the material before the council did not raise a reasonable concern that loss of the shop would leave residents without convenient alternatives, so failure to apply IF2 was not unlawful; and (c) the Public Sector Equality Duty in s 149 Equality Act 2010 did not require further assessment on the facts because representations about elderly users did not substantively establish an equality impact that had been overlooked.