Lever Finance Ltd v Westminister (City) London Borough Council

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE SACHS,LORD JUSTICE MEGAW
Judgment Date22 July 1970
Judgment citation (vLex)[1970] EWCA Civ J0722-1

[1970] EWCA Civ J0722-1

In The Supreme Court of Judicature

Court of Appeal

Appeal of defendant from Judgment of Mr. Justice Bridge, London, dated June 19th, 1970.

Before:

The Master of The Rolls (Lord Denning),

Lord Justice Sachs and

Lord Justice Megaw.

Between
Lever (Finance) Limited
Plaintiffs Respondents
and
Lord Mayor, Aldermen and Citizens of The City of Westminster
Defendant Appellant

Mr. M. CHAVASSE, Q.C., and Mr. ALISTAIR DAWSON (instructed by Mr. E. Woolf, City Solicitor) appeared on behalf of the Appellant Defendants.

Mr. LEWIS HAWSER, Q.C., and Mr. MARTIN GRAHAM (instructed by Messrs. Tringham) appeared on behalf of the Respondent laintiffs.

THE MASTER OF THE ROLLS
1

This is a case for expedition. It concerns a part of St. John's Wood in which there are many high class residences. Lever (Finance) Ltd. are developers who propose to develop a piece of land. Their architect, Mr. Rottenberg, made application for planning permission to the Westminster City Council. He attached a plan numbered 896SKC16. It was not an outline plan. It was a detailed plan. It showed the site lying between Hall Road and Melina Place. It showed the proposed development as seven houses in a terrace, and seven detached houses. These fourteen houses were designated by letters A.B.C.D.E.F.G.H.I. J. K. L. M. N. One of the detached houses, which was lettered G, was 40ft. distant from Melina Place. On the 24th March, 1969, the planning authority, the Westminster City Council, gave permission for that development in accordance with the detailed plan submitted. It permitted the erection of fourteen two-storey houses with garages on the site. But it so appears that a month later, when the architect was getting out a further site plan, he made some variations. He did so because of the building line of Hall Road. It meant that the seven terraced houses had to be moved 5ft. along. At the same time he altered the site of house G. He thought it..; would be better if it were in line with the other detached house F. So he moved house a distance of 17ft. nearer to Melina place. In the original plan which had been approved, house was 40ft. away from the houses in Melina Place. In the further site plan which the architect now submitted, house was only 23ft. away from the houses in Melina Place. This further site plan was on a scale twice as large as the original plan. The architect sent this further site plan to the Council's Planning officer, who had been dealing with all these matters, a Mr. Carpenter. In a letter of the 25th April, 1969, the Architect, Mr. Rottenberg, wrote:

"Dear Mr. Carpenter,

With further reference to the Town Planning consent for the erection of fourteen houses at the above, I would inform you that we had a meeting with the Engineer and have established the Building Line and, for your records, I am enclosing duplicate copies of the drawing No. 896/l00B which indicates the actual setting out of the individual houses."

2

He enclosed the new plan. It showed the altered situation of house G, so that it was no longer to be 40ft, but only 23ft. distant from Melina Place. The new plan went to Mr. Carpenter. Unfortunately, he had lost his file. He had not got before him the original plan which the planning committee had approved. After about ten days Mr. Carpenter telephoned to the architect, Mr. Rottenberg, concerning the matter. There is a difference as to what took place. Both of them were perfectly honest. In the result, the Judge held that Mr. Rottenberg's recollection was correct. I will read, if I may, Mr. Rottenberg's version as given in his affidavit. He said:

"I pointed out the amendments in the general layout but that the most important alteration concerned the setting out of house 'G' the rear of which would now line up with the adjoining house on Plot 'F'. I told Mr. Carpenter the reason for this alteration, which was to achieve a better relationship between the individual houses as well as to ensure that the terraced houses complied with the day lighting code. I asked Mr. Carpenter if the proposals were satisfactory and he told me quite clearly that the alterations were not material, and that he therefore had no objection and no further consent was required. I made a note on the copy of the letter of 25th April, 1969, and I expressly asked Mr. Carpenter to make a note on his file that he was satisfied with the proposals."

Then Mr. Rottenberg goes on to set out the two notes. He says:

"My note which is contained on the said letter of 25th April, 1969, states: 'Local Authority telephoned pointed out alteration to general layout - said it is O.K. Most important 'G' lines up with 'F'."

Whereas Mr. Carpenter's note is as follows:

"Phoned Mr. Rottenberg who said drawing above was similar to that approved except house moved slightly towards house F, but relationship with S.E. boundary remains unchanged. Not material."

3

In the upshot, the Judge preferred Mr. Rottenberg's recollection. In any case, Mr. Carpenter, according to his own note, told Mr. Rottenberg that the variations were not material. In this respect I fear that Mr. Carpenter made a mistake. That variation was material. If Mr. Carpenter had had the file before him, he would have seen it. But, not having the file, he said it was not material.

4

Howsoever that may be, Mr. Rottenberg acted on what he was told. He did not put in an application for further permissionso as to sanction the variations. He accepted Mr. Carpenter's statement that they were not material. So he proceeded to get on with the work. Some of the houses were started in June. House itself was started in September, 1969. The foundations were set out. The houses started to go up. At that point some of the residents in Melina Place were disturbed. They had, apparently, been assured by the architect in the initial stages that house would be 40ft. away. Now, seeing that it was only 23ft. away, they made representations to the local authority, the Westminster City Council. The officers of the Council were concerned about the position. They suggested to Mr. Rottenberg that he should apply to the Council for planning permission for this variation. It would then be all in order. So on the l7th March of this year Mr. Rottenberg applied for permission for the variations. The planning officers supported the application. They reported to the Committee:

"Although it is unfortunate that the development has taken place in this form without the Council's prior consent, it is not considered that any valid planning objection can be raised at the siting of the house as now being constructed, and permission is recommended to regularise the position."

5

But the planning committee rejected this recommendation. They refused to sanction the variations. They did not grant the application. No doubt they felt that the residents in Melina Place had good cause for complaint.

6

So the position was very awkward. The house was still going up in a position that was not sanctioned. Mr. Rottenberg then made another attempt to get over the difficulty. He suggested an alteration in the structure of house G. He proposed to remove the top storey over part of it. By so doing, the occupiers of house would not overlook the houses in Melina Place. So on the 29th April, 1970, he made an application for this variation in house G. This application was again supported by the planning officer and by the Director of Architecture and Planning himself. But the Planning Committee rejected this variation also. They must have felt that the neighbours had a legitimate grievance at the way things had beendone. On the 18th May, 1970, the committee refused permission. They went further and resolved that an enforcement notice should be issued so as to prevent Mr. Rottenberg and his clients going further with the house.

7

This put the developers in a quandary. The house was up. The roof was on. But the windows were not in. It had not been glazed. They did not know whether to take it down or not. So they moved the Court urgently. Within two days, on the 21st May, 1970, they issued a writ against the Westminster City Council claiming a declaration that they were entitled to complete the house on the site where it was. They asked for an injunction to retrain the City Council from their serving an enforcement notice. An interim injunction was obtained. The action was expedited. It was tried before Mr. Justice Bridge on the 18th and 19th June of this year. He decided in favour of the developers. The City Council appeal to this Court. The appeal comes on within two months of the issue of the writ. It shows that these Courts can act quickly when occasion so requires.

8

The Judge made some important findings. He found that, after Mr. Rottenberg submitted his further plan (which contained the variations), Mr. Carpenter used language which led Mr. Rottenberg to believe that the proposed variations were not material and that no further consent was required. The Judge further found that, after detailed planning permission had been given, it is a common occurrence to find that minor modifications are needed: and that when the necessity does arise, the common practice "is for the developers' architect to submit any such proposed modification to the planning officer. If the planning officer thinks it is not material, he says so and the development then goes forward in accordance with the modified plans as approved in that sense by the planning officer; and nobody thinks it necessary to submit a further application….. That is an eminently sensible practice."

9

One of the witnesses to the practice was Mr. Hirsch, whois the Chief Planning Officer of the City Council, and well qualified to speak of it. He told the Judge that it frequently happens that there is a minor variation from the plans: that it is discussed with the planning officer: that the planning officer says "in my opinion it is not...

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