R (Mount Cook Land Ltd) v Westminster City Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Auld,Lord Justice Clarke,Lord Justice Jonathan Parker |
| Judgment Date | 14 October 2003 |
| Neutral Citation | [2003] EWCA Civ 1346 |
| Docket Number | Case No: C/2002/2027 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 October 2003 |
[2003] EWCA Civ 1346
Lord Justice Auld
Lord Justice Clarke and
Lord Justice Jonathan Parker
Case No: C/2002/2027
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
MR JUSTICE MOSES
Mr. John Steel, QC, Mr. Robert White and Mr. Stephen Whale (instructed by Stephenson Harwood) for the Appellants
Mr Timothy Corner, QC, and Mr. Robert Palmer (instructed by Mr. C.T. Wilson, Director of Legal and Administrative Services, Westminster City Council) for the Respondent
This is a claim by the appellant ("Mount Cook") for judicial review of the grant by the Respondent ("the Council") to the Interested Party, Redevco Properties ("Redevco") of "operational" planning permission for external alterations to a building (formerly housing the C & A Store) at 200–212 Oxford Street, London W.1 ("the Building"). The matter originally came before the Court by way of a renewed, oral, application by Mount Cook for permission to appeal a refusal by Moses J. on 26 th September 2002 of its renewed application to him for permission to apply for judicial review. On 27 th November 2002, this Court granted permission to appeal and to claim judicial review and retained the claim for its own decision.
The facts
The Building is within the East Marylebone Conservation Area, as designated by the Council, the local planning authority. The statutory development plan for the area is the Westminster Unitary Development Plan adopted by the Council in July 1997. The relevant policies are SS2 and DES7, the former "to protect retail floorspace in large stores trading on several floors" inside the central zone and the latter "to preserve or enhance the character or appearance of … [the Council's] conservation areas". It is also within an area for which the local plan policy is to protect department stores, a policy that Mount Cook claims in these proceedings to support.
The Building fronts onto the north side of Oxford Street and backs onto Market Place, a series of short highways in an "H" formation which, until recently, had little attraction for members of the public. As a result of an initiative in the late 1990s known as "the Oxford Market Initiative" by two major local landowners, supported by Mount Cook and the Council, parts of Market Place have been improved and made more attractive to the public. However, the improvements did not extend to that part of Market Place immediately to the rear of the Building, which remains a rather run-down area by the standards of this part of the West End.
Mount Cook is the freeholder of the Building. Redevco has a 999 year lease of it at an annual rent of £1,139, not expiring until 2912, that is, not for another 910 years. Redevco's interest in the Building is thus close to that of a freeholder, a strong position that has clearly exercised Mount Cook, which would like to acquire the leasehold interest to enable it to develop the Building for its own purposes. It has substantial property interests to the rear and north of the Building, all of which, including the Building, are known as the Langham Estate, which it manages through a managing agent. In all, the Estate comprises over 400 tenancies – some long-term, some short-term —most of which are in commercial uses, mainly retail in the form of shops, restaurants, and offices. Relevantly to Mount Cook's aspirations, some of the leases in respect of buildings close to the rear of the Building are for terms that will expire in the near future.
It is common ground that Mount Cook has sought to bring pressure on Redevco to yield to its development ambitions by reliance on its entitlement under the lease to refuse consent to alterations to the Building that Redevco sought to make and by objecting to various applications by Redevco for planning permission. As to the former, Redevco succeeded on 3 rd December 2002 in obtaining from Mr. Paul Morgan, QC, sitting as a Deputy Judge of the High Court, declarations that Mount Cook's refusals of consent were unreasonable and that Redevco was entitled to make the alterations without its consent; see Redevco Properties v. Mount Cook Land Ltd. (Claim No. HC02CO1735, 3 rd December 2002), paras 19(7) and (10), 38, 40 and 4On 20 th February 2003, this Court refused Mount Cook permission to appeal that decision. On the planning front, Mount Cook has objected to at least three planning applications in respect of the Building. The first was for change of use of the upper floors from retail to office and residential uses. It was withdrawn, after some revisions, in May 2002. The second, which was made in revised form in February 2002, was to make various alterations. It was granted in May 2002, and is the subject of this appeal. And the third was made in about May 2002, following the withdrawn first application to which it was similar, namely for change of use of some of the upper floors from retail to office or residential use. The Council has yet to decide on that application.
The planning permission under challenge was for relatively minor physical external alterations involving: the installation of new shop fronts and canopies to the ground floor of each of its three street elevations, including that looking onto the southern part of Market Place; the partial infill of a lightwell; the installation of glass louvres on the second floor and of bronze louvres on the ground floor; and the replacement of black painted windows with clear windows on the first and second floors. The proposed alterations to the Market Street elevation, though relatively minor, would be a distinct enhancement of the character of the Building, and of the part of the Market Place onto which it looks.
Mount Cook objected to Redevco's application, as it had objected to an earlier form of it, on the grounds that Redevco had not considered how its proposals would preserve or enhance the character and appearance of the conservation area and that some of the alterations might prejudice the future use of the upper floors of the Building for retail purposes. In the meantime, in early 2002, Mount Cook had commissioned the production of a number of design options for the improvement of the southern part of Market Place to the immediate rear of the Building, with a view to enlivening the area by providing more retail frontages. In March 2002 it put them to the Council as a logical extension of the scheme of improvements already achieved by the Oxford Market Initiative in the northern section of Market Place. Its proposals were supported by two other major local landowners, one of which had been jointly responsible for that Initiative. It contrasted them with Redevco's proposed alterations to the rear of the Building which, it claimed, would "nullify" Mount Cook's proposals. However, it did not embody them in any planning application of its own, indicating that it would not do so unless agreement could be reached for Redevco's proposals to conform broadly with its own.
The Council's response to Mount Cook's alternative proposals was that they were too vague for proper consideration and advice by its officers, though it proffered some "initial" advice indicating that the proposals were likely to be unacceptable. However, the Council informed Mount Cook that its objections to Redevco's application would be put before the Planning Applications Sub Committee meeting on 21 st March 2002 when it was due to consider the application. (The Council later accepted that this initial advice had been based on the wrong set of plans.)
The Council's Director of Planning and Transportation, in a report prepared for the Sub Committee, recommended the grant of conditional permission. He referred to Mount Cook's main objection in general terms, and identified as background papers available to the Members of the Sub Committee various correspondence from Mount Cook's advisers setting out its objections in detail, in particular by comparison with its own proposals. He advised the Committee in the following terms that those proposals were irrelevant to the determination of Redevco's scheme:
"An alternative scheme has been submitted on behalf of the freeholders for new shop fronts to the Market Place elevation of the building. Given that each case is treated on its own merits, these proposals are not considered relevant to an evaluation of this application"
And, in subsequent correspondence, the Council stated that the planning officer responsible had circulated the Mount Cook correspondence to the members of the Sub Committee, who had fully considered it. Mount Cook's solicitors' note of the meeting records that the planning officer responsible for the application had referred to Mount Cook's advisers' letters, summarised its concerns as set out in the report for the meeting, "with the addition of a reference to improving Market Place", and advised that, as to the complaint about prejudicing future applications, Redevco's application had to be considered on its merits. The note also records that he and another officer expressed the view that the proposal would enhance the Building and the appearance of the Conservation Area. Notwithstanding Mount Cook's objections, the Sub Committee approved the application.
There then followed further correspondence in which Mount Cook complained to the Council about the decision, repeated its earlier assertion that Redevco's proposed alterations would undermine the likelihood of any extension of the Oxford...
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