The King (LW Zenith Ltd) v Secretary of State for Levelling UP, Housing and Communities
| Jurisdiction | England & Wales |
| Judge | Jarman |
| Judgment Date | 21 December 2022 |
| Neutral Citation | [2022] EWHC 3317 (Admin) |
| Docket Number | Case No: CO/1057/2022 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2022] EWHC 3317 (Admin)
HIS HONOUR JUDGE Jarman KC
Sitting as a judge of the High Court
Case No: CO/1057/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Jonathan Clay (instructed by Fladgate LLP) for the claimant
Mr Horatio Waller (instructed by Government Legal Department) for the defendant
The interest party was not present or represented
Hearing date: 8 December 2022
Approved Judgment
This judgment was handed down remotely at 10.00am on Wednesday 21 December 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives..
HHJ Jarman KC:
Introduction
The claimant challenges a decision of an inspector appointed by the defendant, the Secretary of State, dismissing its appeal under section 78 of the Town and Country Planning Act 1990 (the 1990 Act) against the refusal of the interested party as local planning authority (the authority) to grant approval required under Article 3(1) and Schedule 2, Part 3, Class O, Paragraph O.2(1) of the Town and Country Planning (General Permitted development)(England) Order 2015 (the GPDO).
Class O permits a change of use from Class B1a office use to residential use, providing certain requirements set out in O.2(1) (a)-(e) are met. The claimant wishes to use those rights to change the use of a three storey office building called Zenith House, Fleet, into 34 residential flats. The sole ground on which the authority refused approval was that that permitted development right had been removed by the Hart Employment Land Article 4 Direction. The inspector, in her decision letter dated 15 February 2022 based on written representations, decided that the permitted development rights relied upon had not been so removed.
Had matters ended there, the appeal would have succeeded. However, it is not in dispute that the inspector, in considering whether to give prior approval, had a duty to consider whether the requirements set out above were met. In particular in this case, the requirement in sub paragraph (e) is that there should be provision of adequate natural light in all the habitable rooms of the flats. This is met in respect of 23 of the proposed flats in Zenith House as it currently stands. However, in respect of the remaining 11 proposed flats, further windows would be needed in the roof space and on the ground floor. Planning permission for these operations was granted by the authority in 2019. At the time of the inspector's decision this permission was extant and has since been implemented.
As this issue had not been addressed in the written representations of the claimant or the authority, the inspector raised it, with other matters, in correspondence with them, in these terms:
“2. Do the parties accept that Condition O.2(1)(e) would apply in this case?
3. If the Inspector were to find that it did, the brief views of the parties are sought on whether the proposal would provide adequate natural light in all habitable rooms of the dwellinghouses proposed. This should explain how the physical differences (ie dormer windows and enclosure of undercroft parking area) between the existing and proposed plans but not covered by Class O would be secured. Could the Inspector have your concise comments on this by 14 January. This correspondence has been sent to both main parties.”
The claimant's agent replied as follows:
“Point 2 — Do the parties accept that Condition O.2(1)(e) would apply in this case? — Yes
Point 3 It is acknowledged that the issue of a Prior Approval pursuant to class O of the GDPO does not grant PP for works which involve material physical alterations to the building and that a separate planning permission is required for such works. The attached ‘Proposed Elevation’ drawing (05) 100 Rev G, is on the LPA.'s Planning Application web page for this application and in the Zip folder of plans submitted with the appeal (regrettably it is not listed on the applications drawings list). As may be seen this shows the proposed additional fenestration of the infill ground floor undercroft parking area and the 3rd floor in the existing roof. Save for the addition of specified dimensions this is identical in terms of window locations both at ground and roof level as were approved by the LPA on 17th April 2019.”
The reply of the authority was more detailed and ran to four pages and was entitled supplementary comments. Those comments included that the claimant cannot be compelled either to implement or complete the operational development that was permitted under the 2019 permission, and the prior approval could not be tied to that permission by condition. It was further stated that the inclusion of indicative operational development on the proposed plans was not a source of contention for the authority. However, it should be considered whether the change of use sought, in respect of layout and number of residential units proposed, could be carried out without implementing operational development. Class O required that a building's existing fabric must be capable of conversion to the proposed residential use and number of units stated.
Those replies were not shared by anyone with the other party to the appeal. The inspector issued her decision, without further recourse to the parties to the appeal. She found that the imposition of a condition to require the completion of the 2019 permission was not a proper use of condition, and that even if it were possible to word a condition to require this development before any permitted change of use occurred, that would necessitate work beyond the permitted development and involve a level of complexity beyond the “light-touch prior approval process.”
There are three grounds of challenge to that approach. Mr Clay, for the claimant, took the first two together, and accepted that the outcome in respect of those will impact upon the third. Grounds 1 and 2 are that the inspector misinterpreted the GPDO, Planning Policy Guidance (PPG) and the National Planning Policy Framework (NPPF). Further or alternatively she had regard to irrelevant considerations and failed to have regard to relevant considerations. Ground 3 is that the inspector acted unfairly by failing to disclose to the claimant the authority's supplementary comments or by failing to notify the claimant that she intended to determine the appeal on a basis which had not been canvassed with or between the parties.
The inspector's decision
The relevant reasoning of the inspector is set out in her decision letter as follows:
“28. Paragraph W(13) of the [GPDO] allows prior approval to be granted unconditionally or subject to conditions. However, this is not a general power and such conditions must be reasonably related to the subject matter of the prior approval. The imposition of a condition to require the completion of other consented development in its entirety as part of the prior approval process would be analogous with one of the circumstances outlined in the PPG9 where it is stated that planning conditions should not be used.
29. Even if it were possible to word a condition to require the sequencing of otherwise approved operational development before any permitted change of use occurred, this would necessitate work beyond the scope of the permitted development concerned and involve a level of complexity that would go considerably beyond the deliberately light-touch prior approval process described in the PPG10. Accordingly, based on the evidence before me I am not convinced that it would pass the test of reasonableness. Hence, it would not be reasonably related to the subject matter of the prior approval.
30. Therefore, I find that the change of use of the present building would be incapable of providing adequate natural light to all habitable rooms of the dwellinghouses shown. Whilst physical works could probably address this, such works fall outside of the relevant prior approval regime, and there is no guarantee that they would otherwise be satisfactorily secured. As a result, prior approval should not be given under paragraph O.2(1)(e) of the [GPDO].”
The statutory framework
In order to consider the grounds, it will be necessary to compare the regime for applying for planning permission under the 1990 Act on the one hand, with what the inspector called the light-touch prior approval process. It was not in dispute before me that each of these form part of the complete code set out in planning legislation which must be read as a whole. There are several relevant provisions of the 1990 Act.
An application for prior approval is not the same as an application for planning permission. The local planning authority in determining the latter type of application must have regard to all material considerations (see section 70(2)). It has wide powers to impose conditions on a grant of such permission, including conditions requiring the carrying out of works (section 72(1)(a)).
In contrast, the GPDO specifies those planning matters for which approval must be sought, and those delimit the controls which the local planning authority is able to exercise and the considerations it is entitled to take into account, when determining an application for prior approval (per Holgate J in Cab Housing Ltd v Secretary of State for Levelling Up Housing and Communities [2022] EWHC 208 (Admin) at paragraph 32). The requirement for prior approval limited to restricted planning issues does not confer upon local planning authorities a power to grant planning permission for development...
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