London Borough of Hackney v Secretary of State for Housing Communities and Local Government

JurisdictionEngland & Wales
JudgeMrs Justice Lang
Judgment Date25 March 2021
Neutral Citation[2021] EWHC 720 (Admin)
Docket NumberCase No: CO/2256/2020 & CO/2257/2020
CourtQueen's Bench Division (Administrative Court)
Date25 March 2021

[2021] EWHC 720 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mrs Justice Lang DBE

Case No: CO/2256/2020 & CO/2257/2020

Between:
London Borough of Hackney
Claimant/Appellant
and
(1) Secretary of State for Housing Communities and Local Government
(2) Avon Group of Companies
(3) Triplerose Limited
Defendants/Respondents

Charles Streeten (instructed by Hackney Legal and Governance Services) for the Claimant/Appellant;

Zack Simons (instructed by the Government Legal Department) for the First Defendant/Respondent;

James Findlay QC and Robert Williams (instructed by Russell Cooke LLP) for the Second and Third Defendants/Respondents

Hearing date: 9 March 2021

Approved Judgment

Mrs Justice Lang
1

The Claimant challenges the decision, dated 26 May 2020, made by an Inspector, appointed by the First Defendant (“the Secretary of State”), in which she allowed an appeal by the Second and Third Defendants (“the developers”) against an enforcement notice issued by the Claimant on 27 June 2018, and quashed the enforcement notice.

2

The enforcement notice related to the change of use of land at Unit 2 Ravendale Industrial Estate, Timberwharf Road, London N16 6DB (“the Site”) from Class B8 (storage or distribution centre) to Class C3 (dwelling houses) in the Town and Country Planning (Use Classes) Order 1987 (“the Use Classes Order”). The building was converted into 25 self-contained apartments, on the ground and first floors.

3

The Inspector allowed the appeal under section 174(2) of the Town and Country Planning Act 1990 (“TCPA 1990”) on two grounds:

i) on ground (a): planning permission was granted, on the application deemed to have been made under section 177(5) TCPA 1990, for the development already carried out on the first floor of the building; and

ii) on ground (c): there was no breach of planning control on the ground floor of the building.

4

Applying the guidance given by the court in R (Wandsworth LBC) v Secretary of State for Transport [2003] EWHC 622 (Admin), (2004) 1 P & CR 32, per Sullivan J. at [9], and Oxford City Council v Secretary of State for Communities and Local Government [2007] 2 P & CR 29, per George Bartlett QC, sitting as a Deputy High Court Judge, at [7] – [15], the Claimant filed a claim under both section 288 TCPA 1990 and an appeal under section 289 TCPA 1990. A Combined Statement of Facts and Grounds was filed.

5

On 6 July 2020, Holgate J. directed that the two claims be consolidated, with the agreement of the parties. Following an oral hearing, David Elvin QC, sitting as a Deputy High Court Judge, granting permission pursuant to sections 288 and 289 TCPA 1990, in an order dated 4 September 2020.

Grounds of challenge

6

The Claimant's grounds of challenge (as amended) were as follows.

7

Ground 1. The Inspector erred in law in allowing the appeal on ground (c) in that she:

i) Found that the change in the use of the ground floor was lawful in reliance on permitted development rights, notwithstanding that she expressly found unlawful building operations had taken place, which prevented reliance on any deemed grant of planning permission under the Town and Country Planning (General Permitted Development) (England) Order 2015 (‘the GPDO’), by virtue of Article 3(5)(a): see RSBS Developments Ltd v Secretary of State [2020] EWHC 3077 (Admin) (“ RSBS”).

ii) Failed to apply the correct approach to whether or not the development implemented the deemed grant of permission relied on, and in particular failing to consider the extent or significance of any departure from the submitted plans.

iii) Misinterpreted or failed to have regard to the conditions and limitations imposed by paragraphs P.1(d) and W(12)(b) of Part 3 of Schedule 2 to the GPDO.

8

Ground 2. The Inspector erred in law in allowing the appeal on ground (a) in that she:

i) Failed to reach a judgment on whether or not the development for which she granted planning permission accorded with the development plan, read as a whole, as required by section 38(6) of the Planning and Compulsory Purchase Act 2004 (“PCPA 2004”).

ii) Misinterpreted Policy 3.5 of the London Plan 2016.

iii) Failed to have regard to, or otherwise to address, the outlook of the units in the development, for which she granted planning permission, as required by Policy DM2 of the Hackney Development Management Local Plan (2015) (“the Local Plan”).

9

In an order made by consent on 5 March 2021, the appeal under section 289 TCPA 1990 was allowed on ground 1(i) above. The Statement of Reasons, agreed by the parties, explained the basis for the order as follows:

“Article 3(5) of the Town and Country Planning (General Permitted Development) (England) Order 2015 states “The permission granted by Schedule 2 does not apply if –(a) in the case of permission granted in connection with an existing building, the building operations involved in the construction of that building are unlawful”.

In RSBS (which was decided on 17 November 2020) Lang J. held at para. 56 that “the phrase “in connection with a building” is broad in its scope and could include permission for a change of use which was in connection with a building.” She found that it applied to a change of use under Class O of Part 3 of Schedule 2 to the GPDO because Class O refers to the change of use “of a building”. The wording of Class P of Part 3 of Schedule 2 is materially identical and the same reasoning applies.

At para. 57 of RSBS, Lang J. expressly endorsed the Inspector's application of the principle that “if the building operations involved in the construction of any part of that building are unlawful, the permitted development rights granted in connection with the existing building do not apply (derived from Evans at para. 37) to circumstances in which a building has been physically altered without planning permission following a grant of prior approval for a material change of use.

On the Inspector's analysis, the developer “carried out unauthorised building operations” before it sought to implement the deemed grant of planning permission pursuant to Class P of Part 3 of Schedule 2 to the GPDO (DL25–27). The effect of that was that PAN2 could not be implemented (see RSBS at paras. 53–60). The Inspector's finding that Evans v Secretary of State [2014] EWHC 4111 (Admin) “does not support the contention that the carrying out of external works resulted in the permission granted by PAN2 not being implemented” (DL29) is contrary to the judgment in RSBS at para. 57.

The First Defendant/ Respondent therefore accepts that the Inspector's interpretation of the Evans judgment is materially inconsistent with the treatment of that judgment in the RSBS case. In consequence, the 1 st Defendant / Respondent accepts that this part (but only this part) of the Inspector's reasoning was unlawful, and so no longer seeks to defend this appeal. The 1 st Defendant / Respondent is content for the appeal against the Claimant's enforcement notice to be remitted to another Inspector and re-determined against the correct interpretation of the Evans case.

The Second and Third Defendants/ Respondents also accepts that the Inspector's interpretation of the Evans judgment is materially inconsistent with the treatment of that judgment in the RSBS case. In consequence, the Second and Third Defendants / Respondents accepts that this part (but only this part) of the Inspector's reasoning was unlawful, and so no longer seeks to defend the section 289 appeal. For the avoidance of doubt, it maintains its defence to the section 288 statutory challenge in respect of the grant of planning permission for the use of the first floor of the Site for 15 self-contained flats.

The Claimant/ Appellant maintains that the Inspector erred in all of the ways particularised in its Amended Combined Statement of Facts and Grounds of Claim.”

10

The parties agreed that it was not necessary for the other issues in ground 1 to be determined by the Court.

11

Although the Claimant and the Secretary of State were in agreement that, in the light of the consent order, the Inspector's decision ought to be quashed in its entirety and remitted for reconsideration, the developers submitted that the Inspector's decision on ground (a) – the grant of permission for the development on the first floor — ought to be upheld. I shall consider this issue at a later stage in this judgment.

Planning history

12

The two storey building, with its external yard, forms part of the Ravensdale Commercial/Industrial Estate. It was previously in use as a warehouse. Other buildings on the Estate are a mix of residential use and light industrial use.

13

On 28 September 2016, the Council granted prior approval (reference 2016/2941) for a change of use of the first floor of the building from Class B8 to Class C3, as permitted development under Class P of Part 3 of Schedule 2 to the GPDO. The proposed development was a conversion into “15 x 1 bed mezzanine residential units”. The parties referred to this prior approval notification as “PAN1”. It was subject to four conditions relating to (1) soundproofing; (2) bicycle and refuse storage, landscaping and car parking; (3) a requirement to carry out the development in accordance with the details submitted; and (4) use as Class C3.

14

On 2 February 2017, the Council purported to refuse prior approval (reference 2016/4547) for a change of use of the ground floor of the building from Class B8 to Class C3, to provide “ten studio units”. However, since the refusal was not issued until the 57 th day following receipt of the valid application, the proposal benefited from deemed consent under the provisions of paragraph W in Part 3 of Schedule 2 to the GPDO. The parties referred to this prior approval notification as “PAN2”.

15

In the course of 2016–2018, the developers developed...

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