R v Westminster City Council, ex parte Monahan
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KERR,LORD JUSTICE NICHOLLS,LORD JUSTICE STAUGHTON |
| Judgment Date | 19 October 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J1019-4 |
| Docket Number | 88/0833 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 October 1988 |
[1988] EWCA Civ J1019-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
(MR. JUSTICE WEBSTER)
Royal Courts of Justice
Lord Justice Kerr
Lord Justice Nicholls
and
Lord Justice Staughton
88/0833
CO/1459/87
In the Matter of an Application for Judicial Review in Respect of a Resolution of the Planning and Development Committee of Westminster City Council Made On 30th June 1987 and Its Adoption by the Westminster City Council On 29th July 1987
and
and
MR. ROBERT CARNWATH Q.C. and MISS ALICE ROBINSON (instructed by Messrs. Gouldens, Solicitors, London, WC2A 1JJ) appeared on behalf of the Covent Garden Community Association.
MR. J. SULLIVAN Q.C. and MR. D. MOLE (instructed by the City Solicitor and Secretary, Westminster City Council) appeared on behalf of the Council.
MR. PETER BOYDELL Q.C. and MR. C. GEORGE (instructed by Messrs. Linklaters & Paines, Solicitors, London EC2) appeared on behalf of Royal Opera House Covent Garden Ltd.
Introduction
This is an appeal on behalf of the Covent Garden Community Association against a judgment of Webster J. given on 8th February 1988 whereby he refused to quash a planning decision of the Westminster City Council made in June/July 1987. Its effect was to grant permission to the Royal Opera House (ROH) to carry out a far-reaching redevelopment of Covent Garden. The central objective of the application was to extend and improve the Opera House by reconstruction and modernisation to bring it up to a standard consistent with its national and international reputation and to develop the surrounding area consistently with this project. The decision to permit the development of the site in the manner proposed in the application—after some modifications of the original scheme—involved a departure from the relevant development plan by permitting the use of parts of the site for the erection of office accommodation. The authority was reluctant to permit this, but ultimately accepted the need for it on the ground that the balance of the funds necessary to carry out the desired improvements to the Opera House was unobtainable by any other means.
That decision was challenged by an application for judicial review on behalf of the Association instituted by two of its members. There are two grounds of challenge. First and mainly it is said that the inclusion of office accommodation for financial reasons is impermissible, even though ROH is ready to enter into a binding agreement to use the proceeds from the commercial development for the benefit of the Opera. It is said that to permit the commercial development of part of the site for purely financial reasons, whatever their nature or purpose, is not a "material consideration" which the authority was entitled to take into account under section 29(1) of the Town and Country Planning Act 1971 in granting planning permission for the development as a whole. That raises an issue of law of general importance on which there has been considerable discussion. Alternatively, if the challenge on that ground fails, then it is said that the authority was bound to investigate the financial aspects sufficiently to entitle it rationally to conclude that the provision of office accommodation, by way of departure from the development plan, was in fact necessary to achieve the objectives relating to the Opera House; that it failed to do so; and that its conclusion was accordingly irrational.
Webster J. rejected both of these contentions and the applicants now appeal. The only issue before him and us is whether the planning permission for the proposed development was invalid in law on either or both of these grounds. The courts are not concerned—in the sense of having no right to concern themselves—with the planning merits or demerits of the development in any respect. It is important to emphasise this, because many controversial views are held about the scheme, and a number of press comments have referred to these proceedings in ways which might well give the false impression that the courts are somehow involved in taking sides in the discussions.
The Legislation
It is only necessary to refer to a few of the provisions of the Town and Country Planning Act 1971. The project formed part of an "action area" local plan prepared pursuant to section 11 which falls within the definition of "development plan" in section 20. This was the "Covent Garden Action Area Plan" adoptee by the Greater London Council in 1978. When the GLC disappeared the planning authority became the Westminster City Council whose Planning and Development Committee passed the relevant resolution which the Council subsequently adopted. It is necessary to quote the material part of section 29(1):
"…where an application is made to a local planning authority for planning permission, that authority, in dealing with the application, shall have regard to the provisions of the development plan, so far as material to the applciation, and to any other material considerations…"
The effect of the words "shall have regard to" is that the contents of the development plan are deemed to be material considerations, but not that they must necessarily be followed. Moreover, under section 31(1)(b) the Secretary of State is empowered to authorise planning authorities "to grant planning permission for development which does not accord with the provisions of the development plan", and this was done in the present case by Article 14 of the Town and Country Planning General Development Order 1977. ( Statutory Instrument 1977 No.289).
The other provision which is of some relevance is section 52 dealing with agreements regulating development or use of land, since the conclusion of such an agreement formed an integral part of the planning permission granted in this case. Sub-section (1) is in the following terms:
"(1) A local planning authority may enter into an agreement with any person interested in land in their area for the purpose of restricting or regulating the development or use of the land, either permanently or during such period as may be prescribed by the agreement; and any such agreement may contain such incidental and consequential provisions (including provisions of a financial character) as appear to the local planning authority to be necessary or expedient for the purposes of the agreement."
It should also be noted that the scheme involved the demolition and reconstruction of a substantial number of listed buildings in relation to which special planning controls are imposed by section 55 et seq; but it is unnecessary to quote from these provisions. Finally, Mr. Carnwath Q.C., who appeared on behalf of the Association, drew attention to section 145 of the Local Government Act 1972 which empowers a local authority to contribute financially to the promotion of entertainment.
The facts
The Covent Garden Community Association is an unincorporated association which was formed in 1971 to safeguard and protect the interests of residents and businesses in the Covent Garden area. Its purposes include the promotion of high standards of planning and architecture and to secure the preservation, protection, development and improvement of buildings or features of historical public interest in the area. The Action Area Plan acknowledges in paragraph A.4.34 the "substantial and constructive contribution to the public debate on the Plan" made by the Association.
The application for judicial review seeks to quash a resolution of the Planning and Development Committee of the Westminster City Council passed on 30th June 1987 and adopted by the Council on 29th July 1987 that planning permission and listed building consents be granted for the redevelopment of the Royal Opera House, the Floral Hall, 2 Bow Street, 17–21 Russell Street, 2–6 Mart Street, 45–51 Floral Street, 51–54 Long Acre and land fronting James Street, Covent Garden, London WC2 subject to the fulfilment of three conditions referred to in the resolution. The permitted development included a substantial block of office accommodation along Russell Street and part of Bow Street and two smaller blocks along parts of James Street and Long Acre. These were decisions taken in principle only; the relevant permissions and consents are still in draft. But rather than wait for the formalities to be completed it was thought convenient to challenge the decisions at this stage, and no objection has been taken to this course. On the other hand, Mr. Sullivan Q.C. for the Council and Mr. Boydell Q.C. for ROH do not accept a submission on behalf of the Association that the court can therefore have regard to changes in circumstances which have taken place since July 1987 when the decisions were taken in principle.
The Royal Opera House Covent Garden Ltd. (ROH) is a company limited by guarantee and a registered charity. It is responsible for the day to day administration and operation of the Royal Opera House. This was designed by E.M. Barrie and opened in 1858. Its stage and equipment were modernised in 1902 and new dressing rooms were added in an annexe in 1932. Since 1946 the theatre has housed two internationally renowned companies, the Royal Opera and the Royal Ballet, and the Sadlers Wells Royal Ballet has also been administered from there sines 1957. In the same way as many similar European theatres, the stage and other arrangements were never designed to accommodate present day performance...
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