Burden of proof on council in GPDO retail conversions

In allowing the change of use of a music shop and an estate agent’s in north London to two flats under the GPDO (DCS Number 400-012-173) an inspector has highlighted the difference in the level of supporting evidence required between the prior notification procedure and the planning application procedure.

The dispute between the main parties related primarily to the effect on the provision of retail and service provision. The council alleged that the development would harm the vitality of the dispersed shopping parade and noted that no marketing had been provided to demonstrate that the site had been vacant and actively marketed for the previous two years. These criteria related to the terms of a local development management policy. The inspector acknowledged the council’s assertion that the development plan was a material consideration, but ruled that since the appeal did not relate to an application for planning permission the terms of section 38(6) of the Planning and Compulsory Purchase Act 2004 did not apply.

The inspector mused that it is a moot point as to how much weight, if any, should be given to the development plan in the determination of prior approval applications. Regardless of that point, it seemed to him that there is a significant change in emphasis between the aims of the policy and those of the GPDO. In bringing forward permitted change of use the government accepts that such development is acceptable subject to a limited number of criteria being considered, he reasoned, a significant change from the requirements of the local development management policy. Taking account of the thrust of the GPDO it appeared to him that prior approval should only be required where there is evidence to suggest that a proposal would result in an inadequate level of provision. In the case before him no evidence to that effect had been presented by the council. He concluded that the requirements of the policy should not be used to prevent development that would be acceptable, having regard to the specific terms of the GPDO.

The inspector’s conclusion in this case does, of course, chime with the Ministerial Statement of 6 March 2014 which states that the onus will be on the local planning authority to establish that the proposal would have a detrimental impact on the sustainability of a key shopping area or on local services should they wish to refuse the conversion.

The following DCP chapter is relevant: 4.3423

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