RSBS Developments Ltd v Secretary of State for Housing, Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 17 November 2020 |
| Neutral Citation | [2020] EWHC 3077 (Admin) |
| Date | 17 November 2020 |
| Docket Number | Case No: CO/1113/2020 & CO/1285/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2020] EWHC 3077 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/1113/2020 & CO/1285/2020
Richard Turney (instructed by Asserson) for the Claimant
Robert Williams (instructed by the Government Legal Department) for the First Defendant
Ashley Bowes (instructed by Prospect Law) for the Second Defendant
Hearing date: 28 October 2020
Approved Judgment
The Claimant brings two challenges to decisions dated 20 February 2020, made by an Inspector appointed by the First Defendant, in respect of former office premises known as Mercury House, 7 Heather Park Drive, Wembley HA0 1SS (hereinafter “the premises”) which the Claimant has converted into flats for residential use. To avoid duplication, I shall refer to the parties throughout as Claimant and Defendants, rather than Appellant and Respondents.
Claim CO/1113/2020 is an appeal, under section 289 of the Town and Country Planning Act 1990 (“TCPA 1990”), against the Inspector's decision to uphold the enforcement notice in respect of an alleged breach of planning control which was issued on 29 March 2019 by the Second Defendant (hereinafter “the Council”), and to dismiss the Claimant's appeal against it (identified as Appeal A in the Inspector's Decision Letter (“DL”).
Claim CO/1285/2020 is an application for statutory review, under section 288 TCPA 1990, of the Inspector's decision to dismiss two further appeals by the Claimant, identified by the Inspector as Appeal B and Appeal C in the DL. Appeal B, which was made under section 195 TCPA 1990, was against the Council's decision to refuse the Claimant's application for a certificate of lawful use or development in respect of the residential use of some of the flats at the premises. Appeal C, which was made under section 78 TCPA 1990, was against the Council's refusal to grant planning permission for external alterations to the premises.
The issue is whether the Inspector erred in her interpretation and application of Article 3(5) of the Town and Country Planning (General Permitted Development) (England) Order 2015 (“GPDO”), which led to the conclusion that the grant of prior approval could not apply to the material change of use in 2016.
Planning history
In June 2015, the Claimant applied to the Council for a determination as to whether its prior approval would be required for the change of use of the premises from office use to 16 residential flats. The application was accompanied by, among other things, a set of layout plans showing the footprint of each of the 16 proposed flats within the floorspace of the office building as it then existed (DL 10), and proposed car parking spaces.
On 14 August 2015, the Council issued a Decision Notice confirming that prior approval was required for the 16 one bedroom flats, and approval was granted, by reference to the plans submitted by the Claimant.
The Claimant commenced works in September 2015.
On 23 November 2015, the Claimant applied for and was granted planning permission for a first floor extension to the existing single storey extension at the rear of the building. The accompanying informative stated that the additional space could only be used for office use, and the permission could not be implemented in conjunction with the works in the prior approval application.
Contrary to the terms of the permission and the informative, between December 2015 and February 2016, the existing single storey extension was demolished and a new two storey extension was constructed in its place, with a larger footprint. The overall size of the building was increased by 4%.
After considering detailed factual evidence, the Inspector concluded, on the balance of probabilities, that the change of use from office use to residential use took place between mid-February 2016 and 18 June 2016. The flats have been leased and occupied.
The Claimant's conversion of the premises differed from the layout plans submitted with the prior approval application, and referred to in the Decision Notice, as two of the flats incorporated floor space provided by the new two storey extension. Flat 3 on the ground floor had a larger bedroom and kitchen/dining room, and the floor area of Flat 11 on the first floor was increased by at least 50%.
Following concerns raised by the Council, the Claimant reduced the size of the new extension. In December 2016, the Claimant removed the second storey. In June/July 2017, the Claimant reduced the size of the ground floor to approximately its original size. The Claimant did not have planning permission for any of these works.
On 24 July 2017, the Claimant applied for retrospective planning permission in respect of the extension, and for other alterations to window and door openings. The Council refused permission on 27 October 2017.
On 27 November 2017, the Claimant applied for a certificate of lawfulness for existing residential use of flats 1, 2, 9 and 10. On 2 February 2018, the Council refused the application, stating in its Decision Notice that the use was not lawful.
On 29 March 2019, the Council issued an enforcement notice alleging a breach of planning control, namely, an unauthorised change of use of the premises from office use to 16 dwellings. The notice required the Claimant to cease the use of premises as dwellings, and remove all fittings and fixtures associated with the use of the premises as dwellings.
The Inspector's decision
The Inspector (Jessica Graham BA (Hons) PgDipL) dismissed Appeal A, save for a variation of the time for compliance under ground (g). The Inspector also dismissed Appeals B and C.
In summary, the Inspector's findings were as follows:
i) Planning permission for the change of use crystallised in August 2015 when the Council issued its decision notice that prior approval was granted (DL 18).
ii) The Claimant contended that the question was whether the permission was lost by reason of subsequent events. But even if it were not lost, it might never have been implemented (DL 19).
iii) The layout plans formed part of the details approved by the Council when granting prior approval. By operation of Paragraph W(12)(a) of the GPDO, the development was required to be carried out in accordance with those approved details unless the Council and the development agreed otherwise in writing. No such agreement was made (DL 16).
iv) On the balance of probabilities, the change of use from office to residential use took place between mid-February 2016 and 18 June 2016 (DL 25).
v) Thus the change of use took place after the unauthorised two storey extension had been constructed (DL 26).
vi) The extension was constructed at the same time as the premises were converted to residential use, and its purpose was to provide additional residential accommodation for flats 3 and 11 (DL 26).
vii) The deviation from the approved plans was not de minimis. It amounted to considerably more than a minor alteration and resulted in a significant increase in the size of flat 11 (DL 28).
viii) The differences between what was approved and what was built were considerably more than trifling, and the resulting development was substantially different to that permitted by the prior approval. On that basis the Inspector concluded that the breach of planning control amounted to development without permission (DL 35).
ix) Since the change of use was not carried out in accordance with the approved layout plans, the deviation was more than trifling, and the breach of planning control amounted to development without permission, the material change of use which took place between mid-February 2016 and 18 June 2016 did not implement the crystallised grant of planning permission (DL 37).
x) Article 3(5)(a) GPDO, which provides that the permission granted by Schedule 2 does not apply if “in the case of permission granted in connection with an existing building, the building operations involved in the construction of that building are unlawful” was engaged on the facts of this case. The planning permission which crystallised with the grant of the 2015 prior approval was not lost, but it could not apply to the material change of use that took place in 2016 (DL 38–49).
xi) The unauthorised works carried out in 2016 and 2017 to reduce the size of the extension could not either implement the permission which crystallised with the 2015 prior approval, or retrospectively render the change of use permitted development (DL 51).
xii) On 4 August 2017, the Council introduced an Article 4 GPDO direction which removed permitted development rights for the conversion of office buildings to residential use. The Claimant acknowledged that there are policies in the Development Plan that would prevent such a conversion (DL 70).
It is helpful to set out the Inspector's reasoning on the application of Article 3(5) in full.
“38. The Council contends that since the residential use that took place did not benefit from the 2015 Approval and was not lawful, and the construction of the two-storey extension and its subsequent demolition and alteration constituted a series of unlawful building operations, the effect of Article 3(5) of the GPDO is that the permission granted by Schedule 2 does not apply. The Appellant disputes this, on the basis that since Article 3 of the GPDO is not a retrospective provision which could undermine a “crystallised” permission, it is not here engaged.
39. The provisions of Article 3(5) are as follows:
The permission granted by Schedule 2 does not apply if –
(a) in the case of permission granted in connection with an existing building, the building...
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