Harrods v Secretary of State for the Environment Transport and the Regions and Another

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE SCHIEMANN,LORD JUSTICE SEDLEY,MR JUSTICE CHARLES
Judgment Date07 March 2002
Neutral Citation[2002] EWCA Civ 412
Date07 March 2002

[2002] EWCA Civ 412

IN THE SUPREME COURT OF JUDICATURE C/2001/1743

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM ADMINISTRATIVE COURT

(MR JUSTICE SULLIVAN)

Royal Courts of Justice

Strand

London WC2

Before

Lord Justice Schiemann

Lord Justice Sedley and

Mr Justice Charles

Harrods Limited
Appellant
and
(1) the Secretary of State for the Environment Transport and the Regions
(2) Royal Borough of Kensington and Chelsea
Respondents

MR ROOTS QC (instructed by Hammond Suddards & Edge, Leeds LS3 1ES) appeared on behalf of the Appellant

MR P SALES (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the First Respondent

MR T STRAKER QC (instructed by the Royal Borough of Kensington and Chelsea, London W8 7NX) appeared on behalf of the Second Defendant

Thursday, 7th March 2002

LORD JUSTICE SCHIEMANN
1

The large West End store known as Harrods wishes its chairman to be able to come to and from work on Monday to Friday in helicopter which would land on the roof of the store. They asked the local planning authority whether this required planning permission. The local planning authority said it did. Instead of applying for planning permission, Harrods appealed to the Secretary of State against that conclusion. He arranged for an Inspector to hold an inquiry and to report to him. The Inspector reported that he considered that no planning permission was needed. However, the Secretary of State disagreed with his Inspector and agreed with the local planning authority. Harrods then appealed to Sullivan J sitting in the Administrative Court, but he agreed with the local planning authority and with the Secretary of State. Nothing daunted, Harrods now appeal to us. The issue we have to decide is whether the Secretary of State made an error of law in concluding that planning permission was required.

2

It is common ground that the root question for the Secretary of State was whether the introduction of the helicopter use amounted to development by the making of a material change of use of the Harrods store. The Secretary of State, as I have indicated, came to the conclusion that it did, and therefore Harrods lost their appeal. But in so doing the Secretary of State made it clear that had he taken the view that use of a shop roof for helicopter take-offs and landings was ordinarily incidental to the use of city centre retail businesses, he would have held that no material change of use was involved.

3

The most relevant legislative provisions are to be found in section 55 of the Town and Country Planning Act 1990 and in the Use Classes Order. Section 55 provides:

"(1)… 'development' means… the making of any material change in the use of any buildings or other land.

(2) The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land…"

4

There then follow various examples, each one of which is lettered, of which the most immediately potentially relevant is (f), which provides:

"in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section, the use of the buildings or other land or, subject to the provisions of the order, of any part of the buildings or the other land, for any other purpose of the same class."

5

Although that is the most immediately relevant subparagraph, it is worth mentioning, because the case law touches on them, two other subparagraphs:

"(d) the use of any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such;

(e) the use of any land for the purposes of agriculture or forestry (including afforestation) and the use for any of those purposes of any building occupied together with land so used."

6

The Secretary of State and his predecessors have made a whole series of so-called "Use Classes Orders" of which the currently relevant one has the formal name the Town and Country Planning (Use Classes) Order 1987. The most immediately relevant provisions are in regulation 3, which says:

"(1) Subject to the provisions of this Order, where a building or other land is used for a purpose of any class specified in the Schedule, the use of that building or that other land for any other purpose of the same class shall not be taken to involve development of the land.

(3) A use which is included in and ordinarily incidental to any use in a class specified in the Schedule is not excluded from the use to which it is incidental merely because it is specified in the Schedule as a separate use."

7

The schedule includes a Class A1, Shops, which is then particularised in a way which I need not set out in detail, but which starts:

"Use for all or any of the following purposes

(a) for the retail sale of goods other than hot food

(b) as a post office…"

8

The Inspector's report to the Secretary of State contained the following paragraph, which Mr Guy Roots QC, who appears for Harrods, relies on as providing a proper approach to the question:

"55. In the present case, the purpose is to provide for the mode of transport and arrival and departure of a key worker in the planning unit. It has a commercial basis relevant to the business in terms of the time saving and security and the advantages to the business that it would provide. The proposed use is limited in its scale to exactly that which is necessary—weekday trips to and from the workplace. I do not consider the purpose or intrinsic nature of the activity is unusual, and I cannot but help to compare it to the provision of areas and facilities for car or bus parking for employees coming to work. The use of such land is undoubtedly incidental, ordinarily or otherwise to the primary use. I appreciate that the use of a helicopter to land on the roof of a retail unit does not, on the evidence available, occur elsewhere in England and Wales, but I consider this proposed use can be considered to pass the tests postulated by both sides in the appeal. It might be a new means of transport in the particular circumstances, but it is not unheard of as a means of travel to and from premises in a broader sense. I realise there are stringent conditions to be complied with for journeys to take place, but neither this nor all the other circumstances present render the proposed use so out of the ordinary that it cannot, as I judge it on a matter of fact and degree, be held to be an ancillary use to the use of Harrods as a retail department store."

9

The Secretary of State, as I have indicated, differed from his Inspector. The relevant paragraphs of the decision letter are the following:

"7. It is agreed with the Inspector that the main issue to be determined in this appeal is whether the proposed use of the roof of Harrods for helicopter landings and takeoffs would be lawful as being incidental to the primary Class A1 retail use of the planning unit, which is accepted as being the whole of the Harrods store, or whether it is a material change of use that constitutes development within section 55 of the Town and Country Planning Act 1990…"

10

Then comes paragraph 8:

"… The Secretary of State… takes the view that the planning unit in this case comprises the whole of the Harrods store… in agreement with the Inspector, the Secretary of State concludes that it is only the activity that takes place within the planning unit that is required to be considered for the purposes of this appeal. But, he takes the view that the use of the airspace above the store, rather than involving a use of part of the planning unit, as the Inspector concludes, in fact comprises part of the journey to and from the store that takes place outside the planning unit. However, the Secretary of State agrees with the Inspector that these journeys are not relevant to the consideration of any change of use of the store premises, taking the view that the act of travelling to the premises and the means of transport used would not constitute development, and it is, as the Inspector concludes, the activity of landing and takeoff from the roof of the planning unit that is at issue in judging whether any change of use is involved in the proposal or whether the use may be regarded as ordinarily incidental to the primary retail store use.

9. The Secretary of State has carefully considered the Inspector's conclusions on the Nature of the proposed use… in which he finds that there is a clear functional link between the proposed use and the primary use; that the proposed use is subordinate to the primary use and does not involve the exercise of an 'unrestrained whim' of the occupier. However, he comes to the conclusion that the circumstances of this appeal lead to a different outcome from that proposed by the Inspector. Considering first the possible functional link between the use of the roof for helicopter landing as proposed in the application and the main use of the planning unit, the Secretary of State accepts that there is a degree of linkage, as the Inspector describes, in that the existence of the main retail use provides the requirement for the Chairman to attend the premises to carry out his duties. However, the way in which he chooses to achieve his attendance is considered to be much more related to the needs or requirements of the store owner than to the purposes of the main retail use of the store, in that the helipad would not support or facilitate that main use and it does not directly represent part of the trading activities of the store.

10. With regard to the Council's submission that this question should be addressed by the consideration of whether the proposed use can be regarded...

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6 cases
  • University of Leicester v Secretary of State for Communities and Local Government and Another
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 7 March 2016
    ...to a main use, it is appropriate to ask what main uses of that kind in general have as reasonably incidental activities; see Harrods Limited v Secretary of State [2002] JPL 1258 at paragraph 22. 52 The test for an ancillary use is one of functional relationship rather than extent; see Main ......
  • Phillips v Secretary of State for Communities & Local Government
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 20 November 2008
    ...of State for the Environment, Transport and the Regions [2001] EWHC 600 (Admin), both the judgment of Sullivan J, and also at [2002] EWCA Civ 412, the judgment of the Court of Appeal. 25 The third area of common ground on the law is that the word “material” in this context means “material ......
  • Holding v First Secretary of State
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 9 December 2003
    ...of Harrods Limited v Secretary of State for the Environment, Transport and the Regions and the Royal Borough of Kensington and Chelsea [2002] EWCA Civ 412, another case which was referred to by the inspector in this case, which concerned the question whether the use of the roof of the Harro......
  • The Lord Mayor and Citizens of the City of Westminster v Edward Davenport and Another
    • United Kingdom
    • Queen's Bench Division
    • 30 July 2010
    ...Environment (unreported), QBD, 10 July 1989. 95 I was asked also to have regard to the test applied in Harrods Ltd v Secretary of State for the Environment, Transport and the Regions [2002] EWCA Civ 412; that is to say, whether the commercial uses in question could be described as “ordinari......
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