Justin Edward Pressland v The Council of the London Borough of Hammersmith and Fulham
| Jurisdiction | England & Wales |
| Judge | John Howell |
| Judgment Date | 15 July 2016 |
| Neutral Citation | [2016] EWHC 1763 (Admin) |
| Docket Number | Case No: CO/5029/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 July 2016 |
[2016] EWHC 1763 (Admin)
John Howell QC Sitting as a Deputy High Court Judge
Case No: CO/5029/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Sarah Clover (instructed by Wilkes Partnership LLP) for the Claimant
Mr Tim Burley (instructed by the Solicitor to the Council) for the Defendant
Hearing date: 23 June 2016
Approved Judgment
John Howell QC:
The question raised by this claim for judicial review is whether or not an application may be made under section 73 of the Town and Country Planning Act 1990 (" the 1990 Act") for the grant of planning permission for the development of land without complying with conditions subject to which a prior approval was granted for development permitted by virtue of a development order made by the Secretary of State.
Permission to make this claim was granted by Gilbart J.
BACKGROUND
The general rule in the 1990 Act is that planning permission is required for the carrying out of any development of land: see section 57(1). Such development may involve either the carrying out of certain operations in, over or under land or the making of any material change in the use of any buildings or other land: see section 55(1).
There are a number of ways in which any planning permission required may be granted. It may be granted, for example, "(a) by a development order" made by the Secretary of State or "(b) by the local planning authority…on an application to the authority…in accordance with a development order": see section 58(1). Thus section 59 of the 1990 Act provides that:
"(1) The Secretary of State shall by order (in this Act referred to as a "development order") provide for the granting of planning permission.
(2) A development order may either—
(a) itself grant planning permission for development specified in the order or for development of any class specified; or
(b) in respect of development for which planning permission is not granted by the order itself, provide for the granting of planning permission by the local planning authority….on application to the authority….in accordance with the provisions of the order.
(3) A development order may be made either—
(a) as a general order applicable, except so far as the order otherwise provides, to all land, or
(b) as a special order applicable only to such land or descriptions of land as may be specified in the order."
Section 60 of the 1990 Act provides in relation to permission granted by a development order inter alia that:
"(1) Planning permission granted by a development order may be granted either unconditionally or subject to such conditions or limitations as may be specified in the order.
……
(2) Without prejudice to the generality of subsection (1), where planning permission is granted by a development order for the erection, extension or alteration of any buildings, the order may require the approval of the local planning authority to be obtained with respect to the design or external appearance of the buildings.
(2A) Without prejudice to the generality of subsection (1), where planning permission is granted by a development order for development consisting of a change in the use of land in England, the order may require the approval of the local planning authority, or of the Secretary of State, to be obtained—
(a) for the use of the land for the new use;
(b) with respect to matters that relate to the new use and are specified in the order."
Article 3 of the Town and Country Planning (General Permitted Development) Order 2015 (" the 2015 Order") provides inter alia that:
"(1) Subject to the provisions of this Order……, planning permission is hereby granted for the classes of development described as permitted development in Schedule 2.
(2) Any permission granted by paragraph (1) is subject to any relevant exception, limitation or condition specified in Schedule 2."
Part 3 of Schedule 2 deals with changes of use. Development permitted in that Part under Class O comprises:
"Development consisting of a change of use of a building and any land within its curtilage from a use falling within Class B1(a) (offices) of the Schedule to the Use Classes Order, to a use falling within Class C3 (dwellinghouses) of that Schedule."
Paragraph O.1 specifies that development is not permitted by Class O in the case of certain land or uses. By virtue of paragraph O.2:
"Development under Class O is permitted subject to the condition that before beginning the development, the developer must apply to the local planning authority for a determination as to whether the prior approval of the authority will be required as to—
(a) transport and highways impacts of the development,
(b) contamination risks on the site,
(c) flooding risks on the site, and
(d) impacts of noise from commercial premises on the intended occupiers of the development,
and the provisions of paragraph W (prior approval) apply in relation to that application."
Paragraph W is a provision that applies to a number of other classes of permitted development in Schedule 2 of the Order as well as Class O. It requires any application for a determination whether prior approval will be required to contain a written description of the proposed development, a plan indicating the site and showing the proposed development and certain other information: see paragraph W(2). The local planning authority have power to require information from the applicant including details of any proposed operations; assessments of impacts or risks, and statements of how they are to be mitigated: see paragraph W(9). The authority may refuse the application if they consider that the proposed development does not comply with any conditions, limitations or restrictions specified in Part 3 of Schedule 2 as being applicable to the development in question or if they consider that insufficient information has been provided to enable the authority to establish whether the proposed development does so: see paragraph W(3). Such a refusal is to be treated for the purpose of section 78 of the 1990 Act, which governs appeals to the Secretary of State, as a refusal of an application for approval: see paragraph W(4). If they do not refuse the application on that basis, paragraph W also requires the authority to consult other specified persons about any of the relevant impacts or risks and to advertise the application: see paragraphs W(4) to W(8).
Paragraph W further provides that:
"(11) The development must not begin before the occurrence of one of the following—
(a) the receipt by the applicant from the local planning authority of a written notice of their determination that such prior approval is not required;
(b) the receipt by the applicant from the local planning authority of a written notice giving their prior approval; or
(c) the expiry of 56 days following the date on which the application [for prior approval] was received by the local planning authority without the authority notifying the applicant as to whether prior approval is given or refused.
(12) The development must be carried out—
(a) where prior approval is required, in accordance with the details approved by the local planning authority;
(b) where prior approval is not required, or where sub-paragraph (11)(c) applies, in accordance with the details provided in the application…..,
unless the local planning authority and the developer agree otherwise in writing.
(13) The local planning authority may grant prior approval unconditionally or subject to conditions reasonably related to the subject matter of the prior approval."
If the authority determines that the site will be contaminated land, however, they must refuse prior approval: see paragraph W(10)(c).
In this case, on March 6th 2015, the Claimant, Mr Justin Edward Pressland, and the Interested Party, Mr Paul Pressland, applied to the Defendant, the Council of the London Borough of Hammersmith and Fulham, for a determination under the Town and Country Planning (General Permitted Development) Order 1995 whether prior approval was required before making a change in the use of the ground, first and second floors of 11A Hannell Road, London SW6 7RA, from an office into three self contained residential flats. By virtue of section 17(2)(b) of the Interpretation Act 1978, that application fell to be treated after April 15th 2015 (when the 2015 Order came into force) as an application made for such a determination under Class O of Part 3 of Schedule 2 to the 2015 Order.
On May 1st 2015 the Council granted prior approval for the change of use of the premises "subject to" fourteen conditions. For present purposes their precise content is irrelevant, although it may be noted that a number required the subsequent submission, approval and implementation of schemes to deal with various matters.
On July 16th 2015 the Claimant and the Interested Party applied under section 73 of the Town and Country Planning Act 1990 for permission to make the change of use permitted without complying with eight of those conditions.
Section 73 provides inter alia that:
"(1) This section applies, subject to subsection (4), to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted.
(2) On such an application the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted, and—
(a) if they decide that planning permission should be granted subject to conditions differing from those subject to which the previous...
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