R Westminster Council v The Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 08 April 2014 |
| Neutral Citation | [2014] EWHC 1248 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 08 April 2014 |
| Docket Number | CO/1560/2013 |
[2014] EWHC 1248 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Supperstone
CO/1560/2013
Ms S Sheikh (instructed by WCC) appeared on behalf of the Claimant
Mr M C Ormondroyd (Treasury Solicitors) appeared on behalf of the First Respondent
Mr A Goodman appeared on behalf of the Second Respondent
Mr R Turney appeared on behalf of the Interested Party
Hearing dates: 31 March and 1 April 2014
Westminster City Council ("the appellant") appeals pursuant to section 289 of the Town and Country Planning Act 1990 against the decision letter dated 15 January 2013 of an inspector appointed by the Secretary of State for Communities and Local Government ("the first respondent") to determine an appeal against an enforcement notice issued on 26 October 2011 in respect of property at 100 is to 102 Westbourne Terrace, London, W2, owned by Property Investment Developments Limited ("the interested party").
The breach of planning control against which the notice was issued was stated to be:
"Material change of use of the property from a hotel (class C1) to a mixed use hotel and hostel sui generis."
Mr Oriol Badia, the second respondent, is the chief executive officer of Equity Point Holdings, the management company for Equity Point Limited, the lessees of the property. The second respondent appealed against the issue of the notice under grounds (a), (b) (c) and (f), as set out in section 174(2) of the 1990 Act. The Inspector allowed the appeal on both grounds (b) and (c).
A preliminary point taken by Mr Goodman for the second respondent is that the appellant failed to make a valid application in time. The procedure for bringing an application pursuant to section 289 of the 1990 Act was that at the material time, governed by Practice Direction 52, paragraph 22.6C(1), which provided that the application:
"Must be made within 28 days after notice of the decision is given to the applicant."
Notification of the decision of the Inspector was given on 15 January 2013. Mr Goodman submitted, relying on Wenman v the Secretary of State for the Environment [1995] JPL 1040, and Ynys Mon Borough Council v Secretary of State for Wales [1992] 3 PLR 1, that the time for bringing the application expired on 11 February, on the basis that the 28 days for bring an application ran from the date that the decision was notified to the applicant. The application was made on 12 February and accordingly was out of time.
I reject this submission. In my view the wording of paragraph 22.6 C(1) is clear; the first day to be counted is the day after the decision is given to the applicant (see observations of Maurice Kay LJ in Barker v Hambleton District Council [2013] PTSR 41 at paragraph 12 in relation to the wording of section 287(4) of the 1990 Act).
Mr Goodman further submits that even by 12 February no valid application had been made because the application that was made on 12 February did not fulfil the pre-conditions to the making of a valid application and it was not, therefore, "made" at all.
He relies on two matters in support of this submission. First, none of the parties were served, as required, before filing the application (see paragraph 22.6 C(3) and (11) to Practice Direction 52). Second, a witness statement dated 12 February 2013 was filed but it did not address who had been served, as required by paragraph 22.6 C(4)(iv).
I reject this submission. Paragraph 22.6 C(9) provides that:
"Where, on the hearing, of an application, the court is of the opinion that a person who ought to have been served has not been served the court may adjourn the hearing on such terms as it directs in order that the application may be served on that person."
That is what happened in this case. The hearing was adjourned in order for service to take place. Turner J ordered on 14 March 2013 that the appellant comply with the requirements of paragraph 22.6 C(4)(iv) by no later than 4.30pm on 2 April. Pursuant to that order a witness statement, as required, was filed on 20 March. Accordingly, in my judgment there is before this court a valid application for determination.
I turn then to consider the application. Section 174(2) of the 1990 Act provides that an appeal may be brought on, insofar as is material, the following grounds:
"(b) That those matters have not occurred.
(c) That those matters, (if they have occurred), do not constitute a breach of planning control."
As the appeal was allowed by the Inspector on grounds (b) and (c), to succeed the appellant must show errors of law in respect of both grounds of appeal.
Miss Sheikh, in her written submissions, identifies five issues in relation to ground (b) and six issues in relation to ground (c). In her oral submissions she focused in relation to ground (b) principally on two points. First, she submitted that the Inspector had failed properly to apply the guidance, given the case of Panayi v the Secretary of State and Hackney Borough Council [1985] 50 P&CR 109 and in Circular 03/05 at paragraph 60 to 62 as to how to identify a hostel use.
Second, Miss Sheikh submitted that the Inspector's decision on ground (b) was contradictory to her own findings on the evidence.
In relation to ground (c), Miss Sheikh's primary submission was that the Inspector failed to have regard to a material consideration, namely the impacts of the hostel use when determining whether there had been a material change of use.
The appeal site is described in paragraph 4 of the decision. It is a Grade II listed building located on the west side of Westbourne Terrace within the Bayswater conservation area. The property comprises two mid terrace Victorian town houses, arranged over basement, ground and five upper floors. There is a four storey rear extension and an internal courtyard between the two buildings.
At paragraph 7 the Inspector refers to a letter dated August 1965, from which it appears that on 10 September 1964 planning permission was granted for alterations, including the erection of a four storey rear extension in connection with their use as a hotel comprising 56 bedrooms. It is agreed between the parties that the lawful use of the property is as a class C1 hotel and that there were no planning conditions in place on the planning permission that limit the use of the hotel.
Paragraphs 8 to 11 of the decision letter, the contents of which are not challenged, state as follows:
"8. A class C1 use is currently a 'use as a hotel or as a boarding or guest house where in each case no significant element of care is provided'. This meaning came into being on 1 April 1994. Before that date a class C1 use extended to 'use as a hotel, boarding or guest house or as a hostel, where in each case no significant element of care is provided'. The reason for the amendment, which removed a hostel use, was that it was considered by the then Minister of Planning and Local Government that there was a real threat to the amenity of tourist areas from the establishment of hostels, which had been attracting large numbers of benefit claimants in traditional hotel areas."
Footnote 4 at the end of that sentence refers to paragraph 3B-974 of the Planning Encyclopaedia. The paragraph continues:
"A hostel use is now sui generis.
9. Class C1 hotels are 'premises which provide a room as temporary accommodation on a commercial fee paying basis, where meals can be provided'."
That quotation is from paragraph 59 of Circular 03/2005, 'Changes of Use of Buildings and Land'.
Paragraph 9 continues:
"And the basic feature of a 'hotel' as the word is used in the English language is that it contains a transient population because it is there to serve people travelling who require short stays only."
Footnote 6 at the end of that sentence refers to the case of Mayflower Cambridge limited v the Secretary of State for the Environment [1975] P&CR 28.
10. There is no definition of a hostel within planning law, but the circular advises that hostels usually provide overnight or short term accommodation which may be supervised where people can stay free or cheaply. They may provide board, although some may provide facilities for self-catering."
That quotation is footnoted as being from paragraphs 61 and 62 of the Circular.
11. The difference therefore between a hotel and a hostel is a fine one and whether a premises, (or in this case part of the premises), is a hostel is a matter of judgment to be determined on a fact and degree basis."
Circular 03/2005 provides a guide to the Use Classes Order as amended by statutory instrument 2005/85. Paragraphs 59 to 62 of the Circular deal with Class C1: Hotels, and provide as follows:
"Class C1: Hotels.
59. The C1: Hotels use class remains unchanged from the original 1987 Order (as amended by SI 1994/724 which removed who is else from the classification). The C1: Hotels class includes not only hotels but also motels, bed and breakfast premises, boarding and guest houses. These are premises which provide a room as temporary accommodation on a commercial, fee paying basis, where meals can be provided but where residential care is not provided. In addition, short-term (i.e. purchased at a nightly rate with no deposit against damage being required) self-contained accommodation, sometimes called Apart-Hotels, will also fall into this class.
Hostels.
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