Appeal 6002905

The appeal is dismissed.

This is a prior notification application under Class MA of Part 3 of Schedule 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) (the GPDO). This Class allows, subject to prior approval, conditions and limitations, development consisting of a change of use of a building, and any land within its curtilage, from a use falling within Class E (commercial, business and service) of the Town and Country Planning ([name]) Order 1987 (as amended) (the Use Classes Order) to a use falling within Class C3 (dwellinghouses) of that Order.

The Council refused the application for two reasons. The first reason was that the proposal had failed to demonstrate that the existing site use falls within Class E of the Use Classes Order. [name].1(1)(b) of Class MA requires the use of the building to fall within one or more of the classes specified in sub-paragraph 2, which includes the previous B1 (business) use class or, after 1 September 2020, Class E.

If the existing use of the site does not fall within Class E, then the scheme would not meet the requirements for a change of use under Class MA and, consequently, would not be permitted development. In this scenario, the second reason for refusal would not be determinative.

However, if the existing use was considered to fall within Class E then the scheme could be considered under Class MA and the second reason for refusal would need to be assessed and a decision made as to whether prior approval should be granted. I will look at this fundamental issue as to whether the existing use can be considered to fall within Class E in the procedural matters section below.

It is accepted that offices currently operate on the ground floor of the building, which accords with my observations during my site visit. However, a small area of the ground floor serves as a separate access and stairwell leading to the upper floors. This area would be enlarged as part of the appeal scheme. The use of the upper floors is disputed between the parties. In the absence of a Certificate of [name], if I was to agree with the appellant that the existing use of the premises falls within Class E, then I would need a high degree of certainty to confirm such a use.

The appellant asserts that the upper floors were rented to House of [name] from November 1999 for office purposes only. The appellant’s evidence also refers to the Valuation Office Agency’s listing which describes the upper floors as ‘Offices and premises’.

The Council has provided evidence of numerous advertisements for several prayer services, a summer school, a Valentine’s ball, a relationship summit and a food bank at the House of [name] on the upper floors. The appellant accepts that there was some religious worship within the building but asserts that this was ancillary to the office use.

I have no reason to doubt that the upper floors were used for the offices of House of [name]. However, Class E does not include places of worship and the quantity and nature of the evidence before me casts doubt that the upper floors were used solely as offices under Class E. Furthermore, at the time of my site visit the upper floors were vacant so I was unable to observe what activities were taking place in these areas.

Consequently, the evidence before me does not clearly demonstrate that the use of the upper floors falls within Class E of the Use Classes Order. As the access and stairwell to the upper floors forms part of the ground floor of the building, I am unable to conclude that the whole of the ground floor falls solely within Class E. As such, Class MA, for the change of use of a Class E (commercial, business and service) site to a Class C3 (dwellinghouses) use, cannot apply.

The second reason for refusal related to a lack of a legal agreement to prevent increased car use in the [name] and to promote sustainable transport modes. With their appeal submission, the appellant submitted a draft legal agreement. The Council suggested some amendments to the draft agreement, which were accepted by the appellant with the exception of a reference to [name], which the appellant stated was not necessary. A signed copy of this agreement is before me. As it includes the Council’s suggested amendments, I have no reason to believe that the legal agreement would not satisfy the second reason for refusal.

For the reasons explained in the procedural matters section above, I am not satisfied that the information adequately demonstrates that the existing use of the ground floor falls solely within Class E use and, therefore, the scheme cannot be considered as permitted development under Class MA of the GPDO. I therefore conclude that the appeal should be dismissed.