Fasuyi, R (on the application of) v First Secretary of State

Monday, 9th June 2003

1. MR JUSTICE ELIAS: This is an appeal pursuant to section 288 of the Town and Country Planning Act 1990 against the decision by an inspector to dismiss an appeal against a decision of the second respondent, the London Borough of Greenwich. Greenwich, as planning authority, refused to grant planning permission on the application of change of use to first floor, 24A Plumstead High Street from residential to office use.

The background

2. The site in question is part of a building which has a retail shop on the ground floor. The first floor site has what was detailed in the application for planning permission as a bedroom, living room, kitchen and toilet. The planning register shows that the premises had a period in 1987 when the owner had first had permission for a different use, as a pet shop in fact, but that reverted to the previous use at the end of that period. In 2001 there were alterations to the shop front to provide a separate access to the first floor accommodation above. This was pursuant to planning permission which had referred to the first floor accommodation as "residential".

3. The claimant wishes to use the first floor of the premises for office use. On 31st January 2002 he sought planning permission from Greenwich for this purpose. The application listed the existing use as "commercial use house with residential first floor upper part". Greenwich refused that application on 24th April 2002. On 12th May the appellant appealed to the first defendant. The grounds of appeal were set out in some detail, but the principal ground was that the original application had been made under a misapprehension: the claimant submitted that in fact the relevant registers disclosed that the first floor had never been used for residential purposes, that it was not appropriate for residential use, and that accordingly the very premise of the planning officer's determination was faulty.

4. The inspector appointed to determine this matter visited the site and determined the appeal on paper. First, he indicated that he would not consider the argument that the site had never been authorised for residential purposes. At paragraph 2 of the decision he said this:

"The appellant has drawn my attention to the planning history of 24A Plumstead High Street and seeks to argue that any residential use of the first floor in the past has been unauthorised. However, this matter is not before me and I shall therefore deal with the appeal as submitted on its planning merits, as being for the change of use of the first floor from residential to business/office use."

5. Having adopted that approach, the inspector then dismissed the appeal, essentially on the grounds that the first floor was capable of being used as residential premises, albeit that it was not so used at the time, and that a proper application of the relevant planning policies, and in particular H7 and S20 of the Greenwich Unitary Development Plan, required that there should be no reduction in residential accommodation of this kind. Policy H7 is as follows:

"Planning permission will not be granted for a change of use or redevelopment that would result in the net loss of residential accommodation."

There are then limited exceptions, which are not applicable in this case. S20 is as follows:

"In all shopping areas residential uses above shops will be retained (except in the circumstances identified in Policy S19)."

6. The appellant appeals against the determination of the inspector. Essentially he does so on two principal grounds. The first is the same as the basis of his appeal to the inspector. He submits that the relevant registers demonstrate that the proper use of these premises was retail use. He does not accept that they show that this property has ever had planning permission to be used for residential purposes. Accordingly, he submits that there cannot be a reduction in the housing stock, contrary to policies H7 and S20, if this was not residential accommodation in the first place. Secondly, he contends that the appropriate policy was not in fact S20 but another policy, S19. That policy says that the council may give favourable consideration to the use of premises above shops for small offices in certain circumstances and in certain areas. One of those areas is "the defined shopping area" of Plumstead in accordance with the policy of J23. The appellant submitted that his premises fell within the terms of S19. The inspector considered this and, as I have said, held that policy S19 was not relevant.

7. Initially, I did not have very much information before me as to whether the inspector had properly analysed this question, but I have now seen the Unitary Development Plan Proposals Map. It shows that not all of Plumstead High Street is defined as a shopping centre for the purposes of policy J23. It is not clear to me that this is the map specifically referred to in S19, but I am not prepared to assume that the inspector has made an error in this matter; it seems almost certain in fact that he has not done so and the claimant has not shown me he that he has. It seems to me that the reference in S19 to the centre in Plumstead is only a reference to part of Plumstead High Street and not all of it. I have every reason to suppose that the inspector would have satisfied himself that these particular premises was outside the terms of that policy.

8. It follows that as far as this part of the application is concerned, it fails. I should add that I have no doubt that in accordance with the policy at H7 and S20 the decision of the inspector was manifestly justified. The appellant has suggested that the property was not sufficiently independent on the first floor from the ground floor for the inspector to reach the conclusion that he did, but that is essentially a factual matter for the inspector to weigh up and to decide with evidence of those matters.

9. That leaves the other part of the appeal, where it is said that the inspector ought to have recognised that the original application had been made under a misapprehension and ought to have put that position right. What the appellant says is that the proper use of this site was retail premises and that he is really seeking to convert from retail premises to office premises and not from residential to office purposes.

10. In my view, the inspector was entitled to refuse to consider this particular argument. I was referred by Mr Auburn, for the Secretary of State, to the decision of Saxby v Secretary of State for the Environment[1998] JPL 1132. In that case the Deputy Judge, Mr Lockhart Mummery QC, dealt with a similar argument and concluded that where an application is made for planning permission then that application does not include, either expressly or impliedly, a request that a determination should be made as to whether planning permission is required at all. Originally the courts had taken a view that an application for planning permission did require the determination of whether there was a need for planning permission at all. Although the judge went into those authorities, Wells v Minister of Housing and Local Government [1967] 1 WLR 1000 and Western Fish Products Ltd v Penwith District Council [1981] 2 All ER 204 (albeit that in the latter case the Court of Appeal clearly had some doubts about the decision of the majority of the court in the former), the judge pointed out that subsequent statutory provisions have changed the position. The judge concluded as follows:

"Accordingly, the former provisions at section 53 of the 1971 Act have been repealed and replaced by an entirely new and fully comprehensive code in Part VII of the 1990 Act. In the light of these new provisions it is clear, in my judgment, that in relation to the very limited and specific points arising in this case, the authorities of Wells and Western Fish Products in relation to the former sections 43 and 53 cannot represent the position arising from the new and different statutory provisions. It would no longer be consistent with the scheme of the Act as a whole for an applicant to be able to require the local planning authority or the Secretary of State to determine whether planning permission is required as part of a planning application. Such a determination would side-step the detailed and comprehensive scheme enacted by Parliament whose provisions, of course, are for the protection of the interests of the public, as well as those of the applicant and the local planning authority. Accordingly, in my judgment, it can no longer be open to an applicant, as part of an application for planning permission under section 62 of the Act, expressly or impliedly to seek a determination that planning permission is not required for the development for which planning permission is expressly sought, nor does the determining authority have jurisdiction to make such determination."

11. I, with respect, agree with that analysis. It is true that in this case there is a difference from Saxby. Here, the appellant is now seeking to say that his true application was for a change from retail use to office use, rather than wishing to establish that he was entitled to use the property for office purposes without having permission at all, but nonetheless the general approach in Saxby seems to me to be applicable here. The appellant would, first of all, have to establish that the retail use did not require any separate permission and then seek to obtain consent to convert or to change that use from retail to office use. In any event, I do not think that the inspector can be criticised for determining the appeal on the basis on which it had been presented to him.

12. I should only add this, that I express no view at all as to whether or not the property in issue was, properly analysed, subject for use for residential purposes or for retail purposes or anything else. I am simply determining this appeal on the basis that the inspector was entitled to analyse the issue in the way that he did. He was acting wholly in accordance with the law in determining that he should analyse the case on the assumption that the use was for residential purposes and that the application would have to determine whether that should be changed to use for office purposes. On the premise that he adopted, and properly adopted, he reached the conclusion that the policy dictated that the application should be refused. Again, he was fully entitled to do that on the material before him. Accordingly, for these reasons this appeal is dismissed.

13. MR AUBURN: My Lord, I have an application for costs.

14. MR JUSTICE ELIAS: Yes.

15. MR AUBURN: Shall I address you on the principle firstly, that we should be entitled to our costs having been successful in the matter. I understand that there was some point that needed to be clarified about policy S19 and 20, but I would point out that the main issue in the case we did win on quite clearly. We have written to the appellant, Mr Fasuyi, in quite clear terms stating why we think that really he does not have prospects and would be best served by not pursuing the appeal. If it would assist I could hand up that correspondence. My Lord, we did attempt to deter the appellant from pursuing this, but he did persist. I do bear in mind that he is a litigant in person, but in the light of that the normal rule should apply, the primary basis on which the appeal was brought was groundless and for that reason --

16. MR JUSTICE ELIAS: Do you have a summary assessment of costs?

17. MR AUBURN: Yes.

18. MR JUSTICE ELIAS: Have you shown this --

19. MR AUBURN: Yes.

20. MR JUSTICE ELIAS: Well, Mr Fasuyi, what do you say about this?

21. THE APPELLANT: There is not much I can say, my Lord. I have had a look at it. Basically if I could just run through this, my Lord. On the first page it says "attendances", I have had no attendance --

22. MR JUSTICE ELIAS: That is a different matter. The question is not, I am afraid, what costs you have incurred, because plainly you have incurred very little costs because you have chosen to do this in person, with, as I say, great skill and courtesy, if I may say so, but nonetheless the question is whether their costs are reasonable, not whether you have done it cheaper.

23. THE APPELLANT: My Lord, based on the application I have made, I have set it out, the inspector said there was a planning permission, there was not. It is reasonable for me to actually come to court before you and argue and say, "that is what the register says, it does not say residential yet the inspector is saying at paragraph 7 that the property has planning permission for residential use". I am not trying to take you back to the bundle but I am basically making the point, I have a register that says, class A retail, there is also the inspector on the basis of his decision saying, (inaudible) I do not agree with that and that is the reason I have come before you. It is only reasonable that I should pursue this issue, and, two, I have the local authority search completed --

24. MR JUSTICE ELIAS: The difficulty is that usually if you lose you pay the costs.

25. THE APPELLANT: I do appreciate that.

26. MR JUSTICE ELIAS: It is not a question of whether you have reasonably taken the claim, it is whether you have lost at the end of the day.

27. THE APPELLANT: I appreciate that. I believe the costs is extremely excessive in the circumstances. I am guided by your judgment, my Lord. Thank you.

28. At the moment I am not actually working and I do not get social security at all because I am not entitled, as well as being a single parent, my Lord.

29. MR JUSTICE ELIAS: Who put the bundle together?

30. THE APPELLANT: I did, with the assistance of a solicitor.

31. MR JUSTICE ELIAS: With the?

32. THE APPELLANT: With the assistance of a solicitor. I paid a solicitor to prepare this. I did everything in there, my Lord.

33. MR JUSTICE ELIAS: Can we reduce this a bit, Mr Auburn. I think the attendances on the Council could have been reduced probably. I will allow, say, half that, £250 of that, and the work done on the documents could have been reduced. You appreciate when I say this that I am not being critical if they say for safety they would like to do it, but the documentation has been provided by the appellant in this case and I will reduce that to £250. I note that the attendances on the second defendant 0.8 hours at £150 an hour does not come to £160 but comes to £120. I do not think, with respect, again I am not critical if they want to come, but I do not think it was necessary in this case for you to have solicitors in court with you for this hearing, so I am going to take that £600 away. I am not quite sure what that leaves that figure at. Can you work out what that is?

34. MR AUBURN: Yes.

35. MR JUSTICE ELIAS: It takes away something like £1,500 from the total.

36. MR AUBURN: My instructing solicitor has a calculator.

37. MR JUSTICE ELIAS: Mr Fasuyi, I am bound to order costs against you, they have won. I have reduced this figure, I am not quite sure what it will turn out to be, but it is about £2,000. They will tell you what it is.

38. MR AUBURN: My Lord, our calculation comes to £1,766.75.

39. MR JUSTICE ELIAS: It is a bit less than I thought.

40. Can I thank you both very much.