The King (on the application of) Fountain House Residents' Association v Westminster City Council

THE DEPUTY JUDGE: This is an application for judicial review to quash a decision of Westminster City Council (the Council) dated 15 July 2024 to grant planning permission for redevelopment of a vacant car showroom to a hotel (the Permission) at Fountain House, 77 Park Lane, London W1K 7TP (the Property). The claimant is an unincorporated association, acting through Mrs Rebecca Thomas, which comprises residents of the Property. The claimant has standing to bring a public law challenge as confirmed by Lieven J. in Aireborough Neighbourhood Development Forum v Leeds City Council [2020] EWHC 45 (Admin). The interested parties (IPs) are the freehold owners of the Property.

The claimant was represented by Mr Charles Streeton and Mr Charles Merrett. The Council was represented by Mr Jack Parker and the IPs by Mr Reuben Taylor KC.

Factual background

The Property is a purpose-built 11 storey inter-war mansion block located on the east side of Park Lane which occupies an entire street block bounded by Park Lane, Mount Street, Aldford Street and Park Street. It comprises a mixture of commercial uses on the lower levels and flats on part ground and first to tenth floors, accessed via a grand entrance on Park Street. The ground floor was previously used for displaying motor vehicles, the lower ground floor area was used as offices and the basement was used partly for displaying cars but mostly for storing vehicles (the Site).

Planning permission was granted on 6 July 2023 for conversion of the basement (and ground floor entrances, stair/lift cores and a vehicle access ramp linking ground and basement levels) of the Property to provide a 66-bedroom (room only) hotel with ancillary back-of-house facilities but no catering or conference facilities, together with minor external works and internal plant at basement and ground floor levels. This did not include the lower ground floor offices which are included in the Permission.

Subsequently, an application for planning permission was made for

“Use of former car showroom comprising part ground floor, part lower ground floor and basement of building for hotel use (C1), alterations including replacement of roller shutter with louvred pedestrian gate and double door and replacement of car lift entrance with a door and fixed glazed panel (Mount Street frontage), replacement of double door with fixed glazed panels (Park Lane frontage), and installation of plant at ground floor (by a car ramp) and basement levels and in ‘Courtyard’/first floor level of central lightwell to Fountain House [the Development]”.

The Development involved an increase in the number of hotel bedrooms from 66 to 131. Again, no onsite food or drink facilities were to be provided.

The claimant objected to the application and made written representations. In January 2024, the applicant submitted written representations in response. The Council uploaded that document onto the Council's website intending that it be available for public inspection in accordance with the Local Government Act 1972 (the 1972 Act) ss.100A–100E. However, as a result of an inadvertent error, due to the options selected when the document was uploaded, it was not visible to the public.

The planning officer produced a report for members (OR) which dealt with the objections and the applicant's response in some detail. Mr Streeton referred to the OR's summary of the objections on land use with which he did not quarrel:

• “Hotel development unacceptable in principle in this residential location;

• Loss of car showroom;

• Claim that the car showroom offices are not ancillary to that use and that it is a dual use and loss of office to hotel is contrary to Council policy to protect office accommodation including a lack of marketing of the offices;

• No marketing evidence to support contention that there is no demand for a car showroom use or an alternative use;

• Use contrary to policies requiring development to respond positively to the character and quality of the particular characteristics of the immediate vicinity of the development site.

• A residential flat, a community asset, or a precious local utility of being lost due to development concerns”.

Mr Streeton did not refer to the summary of objections on other grounds.

In the detailed section addressing land use considerations, under the sub-heading “Commercial Uses/Character of the area” the OR states:

“The City Plan Glossary defines ‘Predominantly commercial neighbourhoods’ within the CAZ as areas ‘… where the majority of ground floor uses comprise of a range of commercial activity’. Park Lane, a principal London thoroughfare, is characterised by commercial uses at ground floor level, including offices, shops and large hotels. Chapter 4.3 of the MNP [Mayfair Neighbourhood Plan] ‘Commercial’ (where detailed policies relates to office development) refers (paragraph 4.3.2) to the ‘predominantly residential neighbourhoods of West Mayfair’. It is accepted that the site is located adjacent to the westernmost boundary of West Mayfair and that there is also a lot of residential accommodation in the vicinity, including a ground floor along Park Street and on the upper floors of the application site. However, the site fronts Park Lane which is characterised by ground floor commercial uses.

In practice therefore the site is considered to be located in a commercial or mixed-use area, rather than in a location which is ‘predominantly residential character’. This was accepted by the Planning Application Sub-Committee when considering the earlier application”.

Under the sub-heading “Loss of the car showroom including its offices”, the OR referred to the applicant's case that there was no longer a demand for car showrooms in this location. The OR continues:

“Objectors believe that the applicant's Planning Statement starts from the false premise that the current use of the site is not a main town centre use and that the definition of main town centre uses includes both ‘retail development’, which they claim self-evidently includes car showrooms, and also offices, and as such should be protected. Reference is made to London Plan SD4 seeks specifically to protect ‘retail clusters’, including specialist clusters, within the CAZ, and objectors believe that one such cluster is the cluster of high end car show-rooms on Park Lane. The loss, to hotel use, of such a showroom as part of the cluster in this location is contrary to that policy. Objectors also refer to the fact that the applicant has chosen not to provide any independent evidence regarding the prospect of the site being used for purposes falling within Class E.

However, officers are of the view that although car showrooms have a retail function, they are very specialist and it is for that reason they are classified as sui generis rather than classified with usual retailing activities within Class E (a) for display or retail sale of goods. Neither the London Plan nor the City Plan have any policy specifically to protect car showrooms – and in fact make no mention of them at all. City Plan policy 13 does not require marketing information to be submitted in support of proposals for new hotel development within the CAZ, unless the existing premises are in office use or any other Class E (commercial, business and service) use, or education or community use. In these circumstances, the applicants are not required to submit marketing evidence either to demonstrate that there is no demand for a car showroom use on the site or that there is no demand for an alternative replacement use. The objections based on loss of retail use are therefore not considered to be sustainable.

There is also an objection that the applicant is wrong to suggest that the offices at lower ground floor level are just ancillary to the car showroom. The objectors argue that the nature and extent...