Appeal 6000556

The appeal is dismissed.

An application for costs was made by [name] on behalf of CCI Ltd against Torbay Council. This application is the subject of a separate decision.

I have used the Council’s description of the development in the banner heading above, on the basis that it concisely describes the proposed development.

The main issue is whether the proposal would be permitted development under Schedule 2, Part 3, Class MA of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) (the GPDO).

The appeal site comprises a mixed use of a part vacant class E unit on the frontage and a residential unit to the rear, which has a separate entrance. The proposed development seeks to change the use of the entirety of the ground floor to a two-bedroom flat.

Class MA of Part 3 of Schedule 2 of the GPDO permits a change of use of a building and any land within its curtilage from a use falling within Class E (commercial, business and service) to a use falling within Class C3 (dwellinghouses).

[name].1.(1) (b) states that development is not permitted by Class MA unless the use of the building fell within one or more of the classes specified in sub-paragraph (2) for a continuous period of at least 2 years prior to the date of the application for prior approval. The classes specified in sub-paragraph (2) are Class A1 (shops), Class A2 (financial and professional services), Class A3 (food and drink), Class B1 (business), Class D1(a) (non-residential institutions – medical or health services), Class D1(b) (non-residential institutions – crèche, day nursery or day centre), Class D2(e) (assembly and leisure – indoor and outdoor sports), other than use as an indoor swimming pool or skating rink and on or after 1st September 2020, Class E (commercial, business and service).

I acknowledge that a building within a mixed use could be converted, and this is outlined in [name].1.(1) (b). However, the mixed use of the appeal site is already part in C3 use, which is not listed as one of the use classes for which development is permitted.

I appreciate the appellant’s frustration and their suggestion that the current residential use indicates that the building is suitable for residential use. However, I find it clear and compelling that a building in C3 use is specifically omitted from Class MA of the GPDO, as appose to Schedule 2, Part 3, Class M of the GPDO for example, which explicitly includes a mixed-use combining use as a dwellinghouse.

Consequently, as I have found that the proposal does not meet the requirements of Class MA.1(1)(b) of the GPDO, it is not permitted development.

[name] have found that the development would not constitute permitted development, I have not sought it necessary to consider whether prior approval should be granted with regard to whether adequate daylight would be provided.

I note that the appeal site is already partly in residential use, there are number of vacant shops within the wider area, no objections were received and that all other technical requirements have been addressed, however, these are neutral matters.

The proposed development would contribute to housing supply where there is a shortfall, however, this does not override the requirements of the GPDO.

For the reasons given above, the appeal should be dismissed.