Niall Carroll v Secretary of State for Communities and Local Government and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone: |
| Judgment Date | 17 February 2015 |
| Neutral Citation | [2015] EWHC 316 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3884/2014 |
| Date | 17 February 2015 |
[2015] EWHC 316 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Supperstone
Case No: CO/3884/2014
Richard Harwood QC (instructed by Mishcon de Reya) for the Claimant
Timothy Morshead QC (instructed by Richard Max & Co LLP) for the Third Defendant
Hearing date: 21 January 2015
Introduction
This is an application under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") and CPR Part 8 to quash the decision of the First Defendant (given by his Inspector) dated 9 July 2014 to grant planning permission to the Third Defendant for the change of use of 19, South End, London W8 5BU ("the Property") from Office Use Class B8 to Residential Use Class C3, and the construction of a subterranean extension (Ref: APP/K5600/A/13/2204526).
The Property is a three-storey terrace building in a cul-de-sac to the south of Kensington Square. Since 1971 it had been in office or educational use, with the final grant of planning permission an office use in 1988.
The Claimant is the owner and occupier of the adjacent terraced property, 18 South End.
On 28 May 2013 the Third Defendant applied to the Second Defendant for planning permission for a proposed change of use of the Property from office use Class B1 to residential use Class C3. Planning permission was refused by the Second Defendant on 24 July 2013. The Third Defendant appealed to the First Defendant on 30 August 2013. The Planning Inspectorate decided that the appeal should be determined by written representations. The Third Defendant made written representations on or about 27 November 2013. She accepted that at the time of the refusal the site was B1 office use, but asserted that the building was now in B8 use. On 28 May 2014 the Third Defendant (by her agents, Savills) informed the Planning Inspectorate that the Second Defendant agreed that the current lawful use of the building was B8. The Third Defendant had made a second planning application on 2 December 2013 for demolition of the existing building and change of use of the land from B8 storage to C3 residential. An officer report on the application concluded that on the balance of probabilities the building was in B8 use and planning permission should be granted. That report was enclosed with Savills' letter to the Planning Inspectorate of 28 May 2014. However the Inspectorate was not informed that on 12 May 2014 members rejected the officer recommendation and resolved to refuse the application "on the grounds that the scheme was contrary to Council policy which sought to protect B1 use of floorspace notwithstanding the exercise of permitted development rights".
It is the Claimant's case that he was not aware of any of the correspondence between the Third Defendant and the Inspectorate on B8 use until after the Inspector's decision.
The Claimant contends that the decision was unlawful for three reasons:
i) The First Defendant acted unlawfully in failing to give interested parties, including the Claimant, an opportunity to comment upon the contention by the Appellant at the six week stage that the use was B8, the Second Defendant's subsequent agreement with that and the implications of such a use for the appeal.
ii) The First Defendant acted unlawfully in amending the description of development as the appeal was then determined on an entirely different basis and no opportunity was given to interested parties to comment on either the change or its effect.
iii) The First Defendant failed to have regard to material considerations, namely the decision of the Second Defendant to refuse planning permission for the change of use of the land from B8 to C3 and Strategic Objective CO2 of the Core Strategy.
On 24 October 2014 the First Defendant confirmed that he no longer intends to defend these proceedings. The Second Defendant has taken no part in the proceedings.
Factual Background
On 28 May 2013 the Third Defendant applied to the Second Defendant for planning permission for:
"Proposed change of use from office use Class B1 to residential use Class C3. Proposed double storey subterranean extension and replacement of single glazed windows with double glazed windows to exactly match existing windows."
The application form described the existing office floorspace as 382sq.m, which would be replaced by a 717sq.m. house.
On 24 July 2013 the Second Defendant refused planning permission for three reasons, including:
"The proposed loss of the 'medium' office (Use Class B1) floorspace in an 'accessible' area would deprive the Royal Borough of this valued floorspace which contributes to the range of business premises within the borough which allows businesses to grow and thrive, contrary to policies of the development plan, in particular policy CF5 of the Core Strategy adopted 8 December 2010."
The Third Defendant appealed the refusal to the First Defendant on 30 August 2013. The Third Defendant confirmed in the Appeal Form that the change of use sought was from office (Use Class B1) to residential (Use Class C3) (see Box E, "Description of the Development"). Paragraph 2 of the grounds of appeal states:
"The appellants consider that the benefits of the appeal scheme in relation to Core Strategy policies (CH1 Housing; CL3 conservation area; and CL5 Residential amenity) outweigh the need to protect office use on the appeal premises. In particular, it will be demonstrated that:
a. The loss of office floorspace will not cause material harm to the supply of office accommodation in the area.
b. The layout of the building provides poor quality office accommodation with narrow rooms, poor natural light and limited services.
c. The property is in a predominantly residential area, and the recommencement of an office use could cause harm to the amenity of residents living in the vicinity of the site. In particular there are no planning conditions which control the use in terms of working hours or deliveries (Policy CL5).
d. The use of the premises (which has a gross floorspace of under 500sqm) can change to storage/warehouse B8, without needing planning consent under the Use Classes Order. Such a use would be even less compatible with residential character of the area. There are no policies which seek to protect B8 use (Policy CF5) against change of use to residential.
e. Residential use will provide an opportunity to improve the visual appearance of the building and re-landscape the garden and terrace areas (policy CL5).
Reference will be made to a number of other recent cases where planning consent has been granted for change of use from office to residential either by the council or on appeal. Whilst each case must be dealt with on its merits, it will be demonstrated that these decisions assist in striking a balance between the competing policies in relation to residential and office accommodation."
On 16 October 2013 the Planning Inspectorate decided that the appeal should be determined by written representations. A timetable was laid down. Representations by the main parties and third parties, such as the Claimant, were to be sent by 27 November 2013 (six-week statements) and the Inspectorate would then send them on to the main parties who would have until 18 December 2013 to comment on the various representations (nine-week statements).
The Third Defendant made written representations, in a lengthy document prepared by Savills, dated November 2013. Part 1 (Introduction) states that the appeal against the refusal of planning permission on 24 July 2013 is for the following development: "Change of use from office (use class B1) to residential (use class C3)" (para 1.1). At paragraph 1.3 Savills "reiterate" the Grounds of Appeal contained in the appeal form (see para 11 above). At paragraph 1.5 it is stated that these representations constitute the Appellant's full written appeal statement "based on the grounds of appeal". Part 4 ("The Development Proposal") states at paragraph 4.2:
"The development proposed sought the change of use of the building from offices (Use Class B1) to a single residential unit (Use Class C3), involving the creation of a high quality single family dwelling on the site."
Part 5 ("Matters Not In Dispute") includes the following:
"5.1 The following elements of the proposed development were considered to be acceptable and as such are not considered to be in dispute as part of this appeal. They did not form any of the reasons for refusal and their acceptability was discussed within the officer's delegated report:
? Notwithstanding the loss of office accommodation, that the proposed use is acceptable in land use terms in providing an additional residential unit (paragraphs 4.3, 4.4 and 6.1 of the officer's report).
5.4 In light of the above agreed matters, and the appellant's willingness to enter into a legal agreement to address the second and third reasons for refusal, this appeal is concerned solely with the loss of the office accommodation at 19 South End."
Part 6 ("Planning Considerations") includes the following:
" Current B8 Use
6.5 In August 2013 the building began to be used for the storage of furniture under the B8 Use Class. Prior to this the building was in Class B1 (a) office use, albeit the building was vacant and was not suitable for occupation as such. The previous occupier of the...
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