Campbell Court Property Ltd v Secretary of State for the Environment, Transport and the Regions

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
Judgment Date09 February 2001
Neutral Citation[2001] EWHC 102 (Admin)
Date09 February 2001
Docket NumberNO: CO/3448/00

[2001] EWHC 102 (Admin)





Mr Justice Sullivan

NO: CO/3448/00

The Queen on the Application of Campbell Court Property
The Secretary of State for the Environment, Transport and the Regions

MR J HARPER QC (instructed by David Arnold Cooper, 6-8 Bouverie Street, London EC4Y 8DD) appeared on behalf of the Claimant

MS A ROBINSON (instructed by The Royal Borough of Kensington & Chelsea, Kensington Town Hall, Hornton Street, London W8 7NX) appeared on behalf of the Defendant

Friday, 9th February 2001



This is an application under section 288 of the Town and Country Planning Act 1990 to quash an Inspector's decision contained in a decision letter dated 16th August 2000 ("the decision letter") dismissing the Claimant's appeal under section 195 of the Act against the refusal of the Second Defendant ("the Council") to grant a Lawful Development Certificate. The application, dated 28th September 1998, had sought a certificate in respect of "the laying out, gravelling and use of the land for the parking of vehicles by occupiers of the residential apartment block known as Campbell Court, Gloucester Road, London SW7 and their visitors, invitees, and others duly authorised by them."


The land referred to in the application was a strip of land to the rear (the east) of Campbell Court. Campbell Court is a block of flats which fronts on to Gloucester Road to the west. To the east, beyond a service road which runs along the rear of the flats, lies Queen's Gate Gardens ("the Gardens"). The Gardens are listed as one of the "protected squares" in the Schedule to the London Squares Preservation Act 1931 ("the 1931 Act"). Section 3(1) of the 1931 Act provides:

"Subject to the provisions of this Act a protected square shall not be used otherwise than for one or more of the following purposes (that is to say) the purpose of an ornamental garden pleasure ground or ground for play rest or recreation (in this Act referred to as 'authorised purposes') and no building or other structure or erection shall be erected or placed on or over any protected square except such as may be necessary or convenient for or in connection with the use and maintenance of such square for one or more or the authorised purposes."


By section 13(1):

"The provisions of this Act shall not apply to the portions hereinafter in this subsection mentioned of the following protected squares therein set out (that is to say)…

Then a list of squares is given in the Royal Borough of Kensington. The second square listed is Queen's Gate Gardens and the excluded portion is:

"A strip on the western side thereof of a uniform depth from that side of 70 feet."


The Claimant is the successor in title of Miss Joan Campbell, who is listed in the Schedule.


Prior to 1959 the 70ft strip on the western side of the Gardens abutted a terrace of houses, numbers 1-10 Queen's Gate Gardens. On 13th February 1959 planning permission was granted by the LCC in the following terms:

"The Council, in pursuance of its powers under the above mentioned Act and the Town and Country Planning General Development Order, 1950, hereby permits the development referred to in the undermentioned Schedule subject to the conditions set out therein and in accordance with the plans submitted.

The Schedule set out the date of the application, 8th January 1959. The plans submitted were numbers S/1436/8/2, 9/2, 10/2, 11/3, 13/3 15/2 20 and SVRS/106/2. The development was:

"The development of the site of Nos 1-10 Queen's Gate Gardens, Kensington, by the erection of a nine storey block of 68 flats including parking accommodation for 36 cars and to the formation of two vehicular accessways from Gloucester Road."


The conditions included:

"(ii) the building shall not be erected otherwise than in accordance with the approved drawings and materials without the prior consent of the Council…

(viii) all existing trees on the site other than any required to be felled directly in connection with the erection of the building shall be preserved;"


Reasons were given for the imposition of the conditions and there were a number of informatives. The second of those was:

"that a separate communication will be sent in respect of Section 20 of the London Building Acts (Amendment) Act, 1939, and the Council may require, inter alia, a firemen's lift and fire brigade access at the rear of the proposed building;"


The application form is dated 3rd October 1958, perhaps it was submitted to the LCC somewhat later on 9th January 1959. In any event, it sets out the particulars of the development in answer to a number of questions. Question 3 asked for the full address or location of the land. The answer was:

"Nos. 1/10 Queen's Gate Gardens fronting Gloucester Road, Kensington."


Question 4 sought brief particulars of the proposed development, specifying also whether: (a) new building; (b) alterations; (c) change of use; (d) continuation of use. The answer was:

"a. 68 flats.

b. new building. Continuation of use."


Question 5 asked the applicant to state the purpose to which the land is now put and if used for more than one purpose to give details. The answer was: "Domestic purposes."


Question 10 asked for a list of drawings and plans submitted with the application. It is unnecessary to list the drawings set out in the application because it is plain that the plans listed in the Schedule to the planning permission were later revisions to the application drawings. Plan S/1436/14 was included in the list of application drawings but it was not referred to in the Schedule to the planning permission. It is entitled "Site Plan" and illustrates a different layout for the flats to that which was permitted, but shows that the eastern boundary of the block abutted, but did not extend into, the "line of existing gardens". Further to the east a dashed line was drawn across the Gardens showing "line of permitted development under LCC (1931) Squares Act."


The application was described in a report of the borough engineer and surveyor to the Borough Council's Housing and Town Planning Executive Subcommittee on the 4th December 1958 ("the Report"). The report recommended that the LCC, who were the planning authority, should be informed that the Borough Council was of the opinion that planning permission should be granted. The report described the existing terrace:

"Ten houses having basement plus five floors; they form a completely detached unit occupying the whole of the western side of Queen's Gate Garden Square, and have frontage to Gloucester Road with the back directly overlooking the Garden Square."


It referred to an earlier informal inquiry about the provision of a car park underneath the Gardens to which the Borough Council had objected. Under "Details of Present Scheme" it said this:

"The existing terrace has its Gloucester Road frontage directly on the back of the public footway; it has an overall depth of 95 feet, behind which the 70-feet deep strip extends into the garden square.

The back wall of the proposed flats will be five feet short of the existing back wall, but the new building's thickness, being less than that of the existing terrace, leaves a forecourt to Gloucester Road…"


The report then said this having described in a the little more detail the accommodation that was proposed:

"The gross site area is 1.3 acres. The permissible population-density is 200 people to the acre. So the permissible site-population is 260. With a total of 68 flats at 3.6 people each the estimated site population is 244."


I have mentioned the fact that the application drawings were superseded by revised drawings by the time that planning permission was granted on 13th February 1959. The surviving drawings listed in the Schedule to the planning permission do not show an eastern boundary for the permission site. Drawing S/1436/8/2 is a ground floor plan. It shows a different layout for the flats to that depicted on the site plan (drawing S/1436/14). In its unamended form, as at the date of planning permission (13th February 1959) it showed no development beyond the rear wall of the flats, which did not encroach into the Gardens.


On 19th February 1959 amendments were agreed by the architects for the applicant for planning permission showing "a paved area for fire brigade access" 12ft wide with a 16ft wide strip between it and the rear wall of the flats. Thus, the fire brigade access was located within the Gardens.


The designs continued to evolve. The applicant's architects corresponded with the LCC and received a letter dated 12th June 1959.

"With reference to your letter dated 22 April 1959, I have to inform you that the Council has decided to approve the amended detail plans…(Your Nos. S/143624 to 32 inclusive) for the development of the site of Nos. 1-10 Queen's Gate Gardens, Kensington, by the erection of a 9-storey block of 68 flats including parking accommodation for 35 cars, submitted as a variation of the [permission plans]."


A copy of drawing S/1436/25 has survived. Manuscript amendments were agreed by the applicant's architects dated 11th May 1959. To the east of the block of flats are the words "access road to be provided as shown on the plans previously approved by the Council." There was further correspondence. On 9th December 1959 the architect to the LCC wrote as follows:

"With reference to your letter dated 17 November 1959, I have to inform you that, so far as the Town and Country Planning Acts, 1947-1959, are...

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