R Stelio Stefanou v Westminster City Council Cunningham Management Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Gilbart |
| Judgment Date | 25 April 2017 |
| Neutral Citation | [2017] EWHC 908 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4918/2016 |
| Date | 25 April 2017 |
[2017] EWHC 908 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Gilbart
Case No: CO/4918/2016
and
Christopher Lockhart-Mummery QC (instructed by Pemberton Greenish LLP) for the Claimant
Meyric Lewis (instructed by Isaac N P Carter, Senior Planning Solicitor, Borough Legal Services) for the Defendant
John Steel QC (instructed by Quastel Midgen LLP) for the Interested Party
Hearing dates: 14 th and 15 th March 2016
Approved Judgment
ACRONYMS USED IN JUDGMENT
| TCPA 1990 | |
| LBCAA 1990 | |
| PCPA 2004 | |
| NPPF | National Planning Policy Framework |
| WCC | Westminster City Council |
| LPA | Local Planning Authority |
| CA | Conservation Area |
| IP | Interested Party |
21 Charles Street, London W1 lies in the heart of Mayfair. It is a Listed Building. Mr Stefanou owns the adjacent house at No 22, which is also a Listed Building. The IP wants to carry out alterations to No 21, which include the construction of a substantial basement underground, on three levels. That will cause a great deal of upheaval, and as is often the case with basement extensions will involve lengthy building and excavation works.
On 18 th August 2016 the Defendant WCC granted listed building consent and planning permission for the works. The Claimant has issued these proceedings to quash those consents. The development and listed building works thereby permitted include some significant changes to parts of the works permitted by an earlier planning permission of 2008, which was renewed in 2011 pursuant to s 73 of TCPA 1990. The Claimant contends that WCC has wrongly treated that 2011 permission as extant, on what the Claimant contends is the erroneous basis that the IP has carried out works which amounted to a commencement of development as defined in 55 of TCPA 1990. The Claimant also contends that, in considering the new applications, the Council failed to have regard to newly adopted Development Plan policy on basement extensions, contrary to s 70(2) TCPA 1990 and s 38(6) PCPA 2004.
This application is made after a grant of permission on the papers by HH Judge Gore QC on 16 th November 2016. As became apparent during the hearing, Judge Gore was wrong to treat the three main grounds of claim as raising the same issue.
It is convenient to start by identifying the two central areas of dispute with which this litigation is concerned.
i) Firstly, the Development Control code appearing in Part III of TCPA 1990 requires that planning permissions contain conditions require that works within the development should be commenced within a set time period (in this case within 3 years). While the Act makes provision for the conditions of permissions to be varied such an application may only be made within the period specified. There is a substantial issue relating to the 2011 development. WCC and the IP contend that it had been implemented by 2014, but the Claimant contends that it was not.
ii) Secondly, the IP now wants to build a different scheme. Most of the 2016 scheme was similar to the 2008/2011 proposal, but it included some additional works. When the planning application was submitted, it is contended by the Claimant that, whether or not the works involved were different, WCC failed to have regard to its newly adopted policy which was now very restrictive of basement development. WCC and the IP assert that it did.
I shall deal with the matter as follows:
i) Factual background
ii) Submissions of the Parties
iii) Findings of Fact, Discussion and Conclusions.
The building at 21 Charles Street is a Listed Building which has been identified as being in need of some repair. The works proposed to the building required both planning permission under TCPA 1990, and listed building consent under LBCAA 1990.
In 2008, the building had been the subject of a planning application (and Listed Buildings consent application) for
"External alterations to existing dwelling at 21 Charles Street and 21 Hays Mews including demolition and redevelopment of the mews building (retaining the front façade) to create sub-basement, lower basement, ground to second floors including a mansard roof in connection with the use of the building for residential purposes (Class C3) …………………."
It was granted on 24 th December 2008 subject to conditions. Albeit not stated within the permission, it included a condition pursuant to s 91 TCPA 1990 that it be commenced within 3 years.
During the course of 2010–1, unauthorised work was carried out to the façade. It had been repointed without the requisite approval being gained under the 2008 consent. On 11 th May 2011 the WCC Planning Enforcement Team wrote to the owner requiring that the brickwork be repointed, failing which formal enforcement action, including the issue of a listed building enforcement notice, would be taken. Some works were carried out (the extent, nature and timing appear below). It is not suggested that the 2008 permission was ever implemented.
In 2011, an application was made under s 73 TCPA 1990 to carry out the development without complying with the original implied condition as to the commencement of the development. On 22 nd September 2011 permission was granted subject to conditions. They included the following:
i) Condition 2 read
"You must apply to us for approval of full particulars of the following parts of the development:
All works to front façade brickwork.
You must not start any work on these parts of the development until we have approved what you have sent us."
ii) Condition 3 applied a similar approach to approval of facing materials, and prevented work on those parts of the development until approval had been gained.
iii) That permission also omitted the condition required by s 91 TCPA 1990, but it was again implied.
It is necessary to identify what was proposed on the front façade. The Plans (i.e. as approved in 2008 and 2011) show that the existing rainwater and soil vent pipes in the centre of the front façade were to be removed. Those pipes ran down the centre of the front façade, running to the left side of the front door (as viewed from inside), and between the second and third of the sets of four windows running across the façade at first and second floor level. The "Design and Access Statement" of 2008, put in before me by the IP and relied on by it and by WCC (which formed part of the application, and is referred to on the face of the permission) shows the provision of new cast iron pipes close to the edges of the façade. The Plan in that statement shows that at the top of the pipes to be removed, there would be the repair of brickwork above the cornice of the building. The statement at paragraph 2.0 refers to some reinstatement being required around the hopper head, and new work to form the new position for the rainwater hopper head outlet. The soil vent pipe was to be rerouted internally.
That statement also gives descriptions of the work involved on the front façade at first floor level. The removal of the pipework would involve the making good of existing holes in the balcony, the making good of the holes for the central pipes in the cornice, and the cutting of holes in the cornice for the new pipes. A description of the materials to be used is given, stating that where the fabric is to be repaired or replaced, materials will be reused if possible. So far as brickwork is concerned, it would be carried out in reclaimed matching London stock brick if possible, and lime mortar. There is nothing in the approved plans or application that describes any large scale replacement of brickwork to the frontage.
The effect of Conditions 2 and 3 was to require submission of further detailed proposals. Such conditions are commonplace on schemes relating to a Listed Building. The Plans approved (see in particular Plan D01) are consistent with the above description.
I shall in due course set out my conclusions on the meaning and effect of the permission.
I was taken by Mr John Steel QC for the IP through the work which was said to have been carried out to the front of the building:
i) The central downpipes were removed, and replaced by a new single pipe, also placed centrally;
ii) Repairs were carried out to the brickwork where the pipe had been removed, and some patching carried out beneath windows, and in the basement;
iii) It is stated in evidence by Mr Nazir Ali put in by the IP that there was large scale replacement of brickwork on the front façade'
iv) No plans were submitted to WCC in compliance with the conditions.
It is necessary to consider also the involvement of the officers from WCC, and in particular Mr Robert Ayton MA, MSc. MRTPI, IHBC, who is Head of Design and Conservation in the Central Area Team of WCC. According to his evidence, he visited the building in 2014 to inspect the "completed repointing works." He described the removal of the ribbon pointing (the subject of the earlier complaint) and its replacement by more appropriate pointing. Consents were then granted in 2014, which were made on applications submitting details discharge Condition 2. The applicant IP described the work as "repair and repoint the front façade."
One of the documents relating to the submission of the application is a file note of a meeting between the IP's architects, Messrs Fielden and Mawson, and Mr Ayton and his team, on 7 th May 2014. It describes the front elevation as being " cleaned up and repointed."...
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