Niall Carroll v Secretary of State for Communities and Local Government and Others
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 12 October 2016 |
| Neutral Citation | [2016] EWHC 2462 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 October 2016 |
| Docket Number | Case No: CO/1621/2016 |
[2016] EWHC 2462 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Lang DBE
Case No: CO/1621/2016
Richard Harwood QC (instructed by Mischon de Reya LLP) for the Claimant
Katrina Yates (instructed by the Government Legal Department) for the First Defendant
Paul Brown QC (instructed by Richard Max & Co) for the Third Defendant
The Second Defendant did not appear and was not represented
Hearing dates: 13 & 14 September 2016
The Claimant applies under section 288 of the Town and Country Planning Act 1990 ("TCPA 1990") to quash the decision of the First Defendant, made on his behalf by an Inspector on 17 February 2016, in which he allowed two appeals brought by the Third Defendant and granted planning permission for development at 19, South End, London W8 5BU ("the property").
The Third Defendant is the owner of the property, which is a three storey terraced building in the London Borough of Kensington, to the south of Kensington Square. The First Defendant granted the Third Defendant planning permission for demolition of the building, construction of a replacement dwelling, and change of use from Class B8 storage to Class C3 residential.
The Claimant resides in the adjacent terraced property (18, South End). He objected to the Third Defendant's applications for planning permission and was a rule 6 party at the appeals. He opposed the loss of commercial uses in the area generally, and at this property in particular, and the impact of the proposed development on his family and property.
There were 5 appeals by the Third Defendant against the Second Defendant (the local planning authority), made under section 78 TCPA 1990:
i) Appeal A was against the refusal of the Second Defendant of the application dated 28 May 2013 for planning permission for a change of use from Class B1 office use to Class C3 residential use, and the construction of a double storey basement.
ii) Appeal B was against the refusal of the Second Defendant of the application of 22 November 2013 for planning permission for demolition of the existing building, construction of a replacement dwelling, change of use from Class B8 storage use to Class C3 residential use, and the construction of a double storey basement.
iii) Appeal C was against the Second Defendant's failure to give notice of a decision within the prescribed period on the application, dated 4 November 2014, for planning permission for demolition of the existing building, and construction of a replacement dwelling, and change of use from Class B8 storage use to Class C3 residential use.
iv) Appeal D was against the Second Defendant's failure to give notice of a decision within the prescribed period on the application, dated 21 August 2014, for planning permission for demolition of the existing building and construction of a replacement dwelling, change of use from Class B8 storage use to Class C3 residential use, and a new basement.
v) Appeal E was against the Second Defendant's failure to give notice of a decision within the prescribed period on the application, dated 22 July 2015, for planning permission for change of use to Class C3 residential use.
The Inspector held an Inquiry and a site visit. He dismissed appeals A, B and D, thus refusing permission for a basement extension. He allowed appeal C, granting planning permission for demolition of the existing building, construction of a replacement dwelling, and change of use from Class B8 storage to Class C3 residential, subject to conditions. He also allowed appeal E, granting planning permission for change of use to Class C3 residential use.
The Inspector's principal findings (so far as material to this application), were as follows:
i) Although the property had previously been in Class B1 office use, the current use of the property was Class B8 storage use. The Second Defendant accepted there had been Class B8 storage use since at least January 2014 but this was disputed by the Claimant.
ii) CLP Policy CF5, which seeks " to ensure that there is a range of business uses … to allow businesses to grow and thrive…" afforded protection to Class B8 storage use, in addition to Class B1 use, as contended by the Claimant and the Second Defendant.
iii) However, in this particular case the proposed change of use from Class B8 storage use to Class C3 residential use was not in conflict with Policy CF5, contrary to the submissions of the Claimant and the Second Defendant. The Inspector found:
"53. As a matter of judgment in the present five appeals, such evidence as is available that the change of 19 South End to residential use would result in an inappropriate reduction in the range of uses available is largely un-quantified and fails to provide strong economic reasons for refusing it."
iv) It was a material consideration that the use could revert to Class B1 office use from Class B8 storage use, as permitted development, whereas the possibility of a reversion to Class B1 would be lost if the use was changed to Class C3 residential use. Class B1 use would justify protection under Policy CF5. However, the prospects of reversion to Class B1 and the loss of that use, contrary to Policy CF5, carried minimal weight in connection with the appeals. The Inspector said:
"56. In the different alternative outcome that the extant use of the appeal property were found to remain in Class B1 as offices, the Council, supported by the Rule 6 party, maintains that refusal would still be justified under Policy CF5. In itself, there is merit in this contention because it is the essentially undisputed evidence of the Council that, properly disregarding hope value of future change to residential use, the appeal property would be viable in office use. Moreover, it would justify protection in terms of Criterion a of Policy CF5, as a medium-sized office development in an accessible area, close to the town centre and not subject any of the exclusions of that criterion. Despite the foregoing finding that the current use of the appeal site is properly to be regarded as Class B8, the Council would further contend that the loss of a building that could potentially revert to Class B1 as permitted development should nevertheless be regarded as a material consideration. For reasons explained above in connection with the issue of the present use class of the site however, such an eventuality cannot properly be anticipated in relation to these appeals. The prospects of reversion to Class B1 and the loss of that use contrary to Policy CF5 accordingly also carry minimal weight in connection with these five appeals."
Grounds
The Claimant's first ground of challenge was that, at paragraph 56, the Inspector failed to have proper regard to the material consideration of a possible reversion to Class B1 office use. He erred in law in concluding that a reversion to B1 office use could not properly be anticipated solely on the basis that it was not appropriate to anticipate the Third Defendant's future actions or to do so subjectively. This was not the correct test. He should have carried out an objective assessment of all the material in relation to a possible reversion to Class B1 use, including the evidence adduced on behalf of the Second Defendant Council from Mr Lomas, senior planning officer, and Mr Clack, an RICS Registered Valuer. The Claimant's second ground of challenge was that the Inspector failed to give any adequate or intelligible reasons as to his conclusions on this issue.
The response of the First and Third Defendants was that the Inspector ought not to have treated a possible reversion to B1 use as a material consideration at all because it was irrelevant in planning terms, and so the alleged failure to do so properly could not justify quashing the decision. Alternatively, if the Inspector was entitled to treat a possible reversion to B1 use as a material consideration, his approach did not disclose any error of law, and he gave adequate reasons for his conclusions.
Legal framework
Section 288 TCPA 1990
Under section 288 TCPA 1990, a person aggrieved may apply to quash a decision on the grounds that (a) it is not within the powers of the Act; or (b) any of the relevant requirements have not been complied with and in consequence, the interests of the applicant have been substantially prejudiced.
The general principles of judicial review are applicable to a challenge under section 288 TCPA 1990. Thus, the Claimant must establish that the Secretary of State misdirected himself in law or acted irrationally or failed to have regard to relevant considerations or that there was some procedural impropriety.
The exercise of planning judgment and the weighing of the various issues are matters for the decision-maker and not for the Court: Seddon Properties v. Secretary of State for the Environment (1978) 42 P & CR 26. As Sullivan J. said in Newsmith v. Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74, at [6]:
"An application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision."
An Inspector's decision letter must be read (1) fairly and in good faith, and as a whole; (2) in a straightforward down-to-earth manner, without excessive legalism or criticism; (3) as if by a well-informed reader who understands the principal controversial issues in the case: see Lord Bridge in South Lakeland v. Secretary of State for the Environment [1992] 2 AC 141, at 148G-H; Sir Thomas Bingham MR in Clarke Homes v. Secretary of State for the Environment (1993) 66 P & CR 263...
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