“Part 3 Class M of the GPDO – Appeal Decisions” – 4 additional appeal decisions (total = 133) …

The Part 3 Class M of the GPDO - Appeal Decisions document has been updated to include 4 additional appeal decisions relating to retail-(etc)-to-residential conversions, for which the conclusions are as follows:

December 2019 - Code P3CM-133 (appeal dismissed):

  • This appeal decision was assessed against the issues specified by paragraph M.2 as follows:
    - “transport and highways impacts” = unacceptable (detailed assessment).
    - “contamination risks” = no assessment.
    - “flooding risks” = no assessment.
    - “impact of the change of use” = unacceptable (detailed assessment).
    - “design or external appearance” = no assessment.
  • When assessing an application for prior approval, the development plan (e.g. the LPA’s Local Plan, etc) is not the “starting point” (or is not a “decisive” factor). [Note: In some of these appeal decisions it’s not clear whether the Inspector concludes that 1) the development plan is a material consideration but not the “starting point” or 2) the development plan is not a material consideration].
    [Quote: “I note also the support given to retaining retail uses within secondary frontages in Policy TC2 of the 2017 Camden Local Plan (CLP) and Policies SW2 and SW3 of the 2016 Kentish Town Neighbourhood Plan (KTNP). These policies are not determinative in prior approval cases as Section 38(6) of the Planning and Compulsory Purchase Act 2004 does not apply. However, they are relevant to the planning judgements to be made on the subject matter of the prior approval, and to that extent therefore they are considerations of material relevance in determining the effect on the shopping area.”].
  • This appeal decision provides an example of where the Inspector, when considering issue M.2(1)(d), concluded that the building is located in a key shopping area.
    [Quote: “I will deal first with criterion (ii) set out in paragraph M.2(1)(d) of the GPDO, which seeks to assess the desirability or otherwise of a change of use of the building due to its location within a key shopping area. These are not defined in the GPDO. The property is located within a secondary frontage within the town centre and the appellant contends that the unit should therefore not be treated as being within a key shopping area. Kentish Town is one of six town centres within Camden which are focal points for retail uses meeting a greater than local need. The centre offers a wide range of goods and services and has good access by bus, rail and underground. It is also designated as a district centre within the London Plan, which is a further indication of the centre’s significance. That the property itself is in a secondary frontage does not alter the status of the town centre as a whole. Taking all these points together, I conclude that the property is within a key shopping area for the purposes of Paragraph M.2(1)(d)(ii).”].
  • This appeal decision provides an example of where the Inspector, when considering issue M.2(1)(d), assessed the impact of the change of use on the sustainability of a key shopping area and concluded that this would be unacceptable.
    [Quote: “The policies indicate that secondary frontages play an important part in the overall offer of retail centres. I accept that there is a greater proportion of vacant units within some of the secondary frontages within Kentish Town town centre, notably on Fortess Road to the north east of the property. However, in this case the other ground floor units in the block are active, and occupied by various Class A uses. Introducing a non-retail use and a non-active residential frontage into an established retail block would be likely to make the area less vibrant and commercially attractive. As a result, the proposal would begin to undermine the vitality, viability, character and function of the centre. It would have a harmful effect on the sustainability of the key shopping area, and it would therefore be undesirable for the property to change to a use as a dwellinghouse in the context of Paragraph M.2(1)(d)(ii).”].
  • This appeal decision provides an example of where the Inspector, when considering issue M.2(1)(d), assessed the impact of the change of use on adequate provision of services (albeit only where there is a reasonable prospect of the building being used to provide such services) and concluded that this would be unacceptable.
    [Quote: “I accept that there are several other hairdressers and beauty salons already operating nearby. However, the unit could also provide other services covered by Use Classes A1 or, as the appellant points out, A2. This would contribute to the overall provision of retail and related services in the town centre, and the large number of retail units in the centre does not in itself mean that any given unit can be lost without undermining the adequate provision of services in the centre as a whole. Units in secondary frontages offer opportunities for new businesses to come in and expand the offer in the centre. The loss of the unit to residential use would therefore be harmful to the adequate provision of retail services within the town centre. That there are vacant units elsewhere in the centre which could also be used does not indicate that they would necessarily be preferred by new operators. I note that no evidence has been provided to demonstrate what, if any, measures have been made to market the unit for retail uses, and I therefore cannot be certain that the unit could not operate successfully in the future. The proposal therefore fails to meet the tests set out in Paragraph M.2(1)(d)(i).”].
  • This appeal decision provides an example of where the Inspector, when considering the “transport and highways impacts of the development”, assessed vehicle parking and concluded that this would be unacceptable.
    [Quote: “The creation of a two-bedroom unit as proposed would potentially create an additional strain on the demand for car parking places, which without being addressed would represent an unacceptable highway impact. The appellant has provided a completed Unilateral Undertaking which would remove the right of future occupiers to hold a Camden on-street parking permit except in limited circumstances. However, in other cases this approach has been found incompatible with section 106 of the Town and Country Planning Act 1990 or not to be ‘reasonable’ in the sense of the tests set out in the National Planning Policy Framework, as to encumber the actions of an individual is not a restriction on the use of land or buildings. A bilateral agreement could enable the Council to deal with the matter through other provisions, for example by varying the operation of the controlled parking zones. However, no such agreement is before me. I therefore find that the proposal’s impact on the demand for parking is not resolved, and consequently it fails to meet the transport and highways condition in Paragraph M.2(1)(a).”].

December 2019 - Code P3CM-132 (appeal dismissed):

  • This appeal decision was assessed against the issues specified by paragraph M.2 as follows:
    - “transport and highways impacts” = no assessment.
    - “contamination risks” = no assessment.
    - “flooding risks” = no assessment.
    - “impact of the change of use” = unacceptable (detailed assessment).
    - “design or external appearance” = no assessment.
  • This appeal decision provides an example of where the Inspector, when considering issue M.2(1)(d), assessed the impact of the change of use on adequate provision of services (albeit only where there is a reasonable prospect of the building being used to provide such services) and concluded that this would be unacceptable.
    [Quote: “The shop at the site is reasonably equidistant from the three roads and I consider it could provide a local shopping function to serve this locality that complements the more extensive retail provisions along the main roads. I do acknowledge the 400m reference in Policy TLC4 of the Local Plan and that the shops in particular in Uxbridge Road would be within this distance. However, as the policy is not positively worded to say changes of use of corner shops will be permitted in these circumstances, and therefore in my judgement, the site falling within this distance does not in itself ensure compliance with the policy as a whole. I consider that the loss of this last shop in this locality, amongst such a reasonably high concentration of residential properties, would be harmful and not meet with the overall aim of Policy TLC4 of acknowledging that corner shops are important for meeting local needs and will be protected for retail use. Taking all these matters into account, I consider that the proposal, in the particular circumstances, would lead to a demonstrable shortage of Class A1 uses in this locality, indeed the loss of the only such facility, and therefore would not meet this requirement of the policy and its overall intentions. [...] In the absence of a detailed marketing report and the reasonably short period of marketing that I have information on, together with the previous use of the site as a shop which appears to have served this local community, I consider that the evidence does not demonstrate to my satisfaction that there would not be a reasonable prospect of the shop use continuing in the future. Once the shop is changed to residential use it is unlikely to return to retail use and therefore I consider it appropriate, based on the information available, to take a precautionary approach. In the light of the above analysis, I conclude that it would be undesirable for the shop to be converted to a flat because of the unacceptable impact of the change of use on the provision of adequate shops in the locality and where there is a reasonable prospect of the building being used to provide such services. As a consequence, the proposal conflicts with Policy TCL4 of the Local Plan and the Framework which seek, amongst other things, to ensure that established shops are retained for the benefit of the community.”].
  • When assessing an application for prior approval, the development plan (e.g. the LPA’s Local Plan, etc) is a material consideration. (*)
    [Note: This appeal decision implies (rather than states) this conclusion].
    [Quote: “As a consequence, the proposal conflicts with Policy TCL4 of the Local Plan and the Framework which seek, amongst other things, to ensure that established shops are retained for the benefit of the community.”].

December 2019 - Code P3CM-131 (appeal allowed):

  • [Note: To view these conclusions, please log onto the website as a member].

December 2019 - Code P3CM-130 (appeal allowed):

  • [Note: To view these conclusions, please log onto the website as a member].

Notes:

  • To view the conclusions, full summaries, and decision notices for any of the above appeals, please view the Part 3 Class M of the GPDO - Appeal Decisions document. As a member of the Planning Jungle website, you can view the decision notices for all of the appeals within the above document for no extra cost.
  • Any of the above conclusions marked with a "(*)" contradict other appeal decisions. The "Reference Section" within the above document indicates how many appeals have supported and contradicted each particular conclusion.
  • The above document also includes 5 "Potential fallback position" appeals, which are NOT summarised (only listed).