The Claimant was the tenant of the basement, ground and first floor premises, 1-3 Thackeray Street, London W8 5ET. The second and third floors are in residential use. The basement, ground and first floors are in use for retail premises as a hairdressing business operated by the Claimant. There was a proposal to convert the first floor shop into a self-contained flat with separate access from an adjoining building with no internal connection between the ground and first floors.  The application was made pursuant to Class F of Part 3 Schedule 2 of the General Permitted Development Order (1995)  (“GPDO”). The Claimant objected to the application on the basis that the proposal did not fall within Class F because it did not involve “mixed use”.

Class F grants permission for a change of use of a building:

to a mixed use for any purpose within Class A1 (shops) of the Schedule to the Use Classes Order and as up to two flats, from a use for any purpose within class A1 of that Schedule ..

Prior to the amendments in 2012 Class F had only applied to a single flat

The explanatory memorandum to the 2012 amendments explained:

We wish to create the opportunity to bring vacant and underused properties back into economic use and at the same time contribute to delivering more homes.  Currently, the ancillary space associated with a retail unit (A1) or financial/professional services unit (A2) can be converted into residential, as long as the A1 or A2 use is on a floor below the residential part of the building, there remains a ground floor shop frontage/display window, and only a single flat is created as a result of the change of use.

The judge therefore found that the intention of the amendment to the GPDO was to create more housing by increasing the permitted development right from one to two flats. The conditions attached to Class F, to which I have already referred, require functional and physical separation.

He held that, given the definition of “flat” within the GPDO and the conditions imposed by Part 3 Class F a proper interpretation of Part 3 Class F permits a change from a single planning unit to up to three planning units, that is to say one in A1 use and two flats. To accept the interpretation advanced by the Claimant would be inconsistent with the clear words of the GPDO.

Richard Kimblin appeared on behalf of the Secretary of State.