The Queen (on the application of Eliterank Ltd) v Royal Borough of Kensington & Chelsea Secretary of the Courtfield Gardens West Garden Committee and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 10 February 2015 |
| Neutral Citation | [2015] EWHC 220 (Admin) |
| Date | 10 February 2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3933/2014 |
[2015] EWHC 220 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Supperstone
Case No: CO/3933/2014
and
James Maurici QC (instructed by Messrs Stitt & Co) for the Claimant
Timothy Straker QC and Dilpreet Dhanoa (instructed by Bi-Borough Legal Services (Hammersmith & Fulham and Kensington & Chelsea)) for the Defendant
Hearing dates: 14 January 2015
Introduction
The Claimant, Eliterank Ltd, is the freehold owner of the residential property at 25 Collingham Road, London SW5 ("the Property"), which forms part of a terrace of dwellings running from 15–33 Collingham Road. The rear facades of that terrace of houses forms the eastern boundary of a private garden square, Courtfield Gardens West ("the Gardens"). The northwest and south boundaries of the square abut sections of the public highway known as Courtfield Gardens.
The Gardens are a "protected" square within the meaning of section 2(1) of the London Squares Preservation Act 1931 ("the 1931 Act"). The expression in the 1931 Act "the Council" originally referred to the London County Council ("LCC"). Upon the abolition of the LCC, its functions under the 1931 Act in relation to the Gardens passed to the Defendant.
The freehold of Courtfield Gardens is registered at HM Land Registry under title number BGL10910 and is vested in the Trustees of the Gardens. The Gardens are also subject to the Kensington Improvement Act 1851 ("the 1851 Act"). Section 43 of that Act enables the Trustees and Council Tax payers in respect of properties facing the garden square to appoint a sub-committee to be responsible for "the care, management and regulation" of the Gardens. Such a sub-committee has been appointed to manage the Gardens.
Section 51 of the 1851 Act provides that either the owners and occupiers, or the Council Tax payers, of the houses surrounding a garden square are to have the exclusive use of the garden and no other person is entitled to use the square. The garden is surrounded by railings and is gated. It is not available for public use.
The Property was formerly in use as a hotel. The Defendant granted planning permission in 2008 and 2012 for the alteration of the use of the building to three self-contained flats. Planning permission for alterations to the rear of the property included the creation of a rear lightwell extension at lower ground floor level with the provision of steps from ground floor doors to the garden.
However in May 2014 the Defendant indicated that it would apply for an injunction under the 1931 Act to seek the removal of the works to the rear of the Property which by that time were well underway. The Claimant responded by making an application for consent for the works in issue under section 3(2) of the 1931 Act. The Defendant decided that it had no jurisdiction under that Act to grant consent for the works carried out.
In these proceedings the Claimant challenges the Defendant's decision made on 11 July 2014 that the application dated 14 May 2014 by the Claimant for permission under the 1931 Act "should be recorded as invalid" and declining jurisdiction to decide the application. The effect of this decision was also to deny the Claimant the right of appeal it would otherwise have had under section 3(4) of the Act.
Counsel informed me that there is no authority on the construction and scope of the 1931 Act. Mr James Maurici QC, for the Claimant, contends that this case raises an important point of legal principle for owners of properties adjoining squares throughout London. If the Defendant is correct then not just the Claimant but the owners of 15, 17, 21, 27, 31 and 33 Collingham Road (and other owners with properties adjoining squares elsewhere in London) all face the prospect that the development to the rear of their properties, which in a number of cases has been in place for many years, is now to be regarded as unlawful under the 1931 Act and hence liable to enforcement, including removal by injunction proceedings.
The Factual Background
On 30 August 1960 Thakeham Properties Ltd ("Thakeham") (the then freeholder of the Gardens) granted to Swick Securities Ltd ("Swick") a 999 year lease of a strip of land extending 15 feet from the rear of the terrace comprising 15–33 Collingham Road. By a deed dated 18 November 1960 Swick demised to Embassy Flats Ltd rights to excavate and carry away soil to a depth of 10 feet up to a distance of 15 feet from the rear boundary of 25 Collingham Road, together with a right to light and air, for a term of 998 years from 1 July 1960. The benefit of that deed is now vested in the Claimant and is included in its title to 25 Collingham Road under title LN110715. The Trustees accept that they are bound by the 1960 deed. The deed applies to both the surface and the subsoil of the protected square.
The Claimant's title also includes a deed of licence dated 2 July 1956 by which Thakeham granted the right to use the Gardens and the right to a separate and private entrance or gateway from the rear of Number 25 to the Gardens. Indeed all those living at 15–33 Collingham Road have access to the Gardens via the rear of their properties.
Following the grant of planning permissions, in the conversion scheme the raised ground and lower ground floors of the Property have been made to form a single large flat, the main bedroom of which is situated at the rear (lower ground floor level).
The dispute which has arisen concerns the lightwell and related structures which the Claimant has sought to create at the rear of the property in order to provide light to the rooms in the rear of the flat.
Before the conversion work was carried out there was at the rear of the Property protruding into the Gardens: a porch; a side door in the porch with steps running parallel to the rear façade of the property and down to the square; a flat stone surface between the steps and the boundary between numbers 25 and 27; three very low walls protruding from the rear elevation of number 25 into the square by about 3.5m; two underground vaults beneath the porch and the steps extending about 1m from the rear façade of the property; and a lightwell to the north of those two vaults extending about 1m from the rear façade of the Property and providing light to a lower ground floor window. The area occupied by the porch, steps, lightwell and vaults was about 14sq.m. In addition there was a steep slope forming part of the garden square in front of the lightwell (which the Claimant contends would not have been useable by visitors to the garden). The slope and lightwell together occupied about 8.4sq.m. of space.
On 17 February 2012 a planning permission was granted allowing the creation of a lightwell extending 1m into the square across the whole width of the rear elevation of 25 Collingham Road with French doors to the Gardens.
On 2 August 2012 a further application for planning permission was made to the Defendant to create a lightwell across the whole width of the property of a depth of 3.5m at lower ground floor level extending from the rear façade into the square. The application also included steps down from the raised ground floor to the garden across the proposed lightwell. The area of the lightwell is about 25.5sq.m. The Defendant granted planning permission for this larger lightwell and steps on 14 November 2012. The decision notice stated that permission was being given solely for development under the Town and Country Planning Act 1990 ("the 1990 Act") and not under any other legislation, including the 1931 Act. The reasons for the decision were that:
"The proposal would preserve the character and appearance of this property, Courtfield Gardens (West) and the Courtfield Conservation Area. … The proposal complies with the relevant development plan policies in particular… CR5…"
Policy CR5 states that the Council will "resist development that has an adverse effect on garden squares including proposals for subterranean development and to promote the enhancement of garden squares".
The Officer Report (approved on 31 October 2012) recommending the grant of planning permission stated, inter alia, that:
"4.9 The prevailing character on this side of the gardens is now lightwells at basement level similar to that proposal and the proposed lightwell will not be any deeper than the general depth of these other lightwells. The proposed enclosed lightwell area to this property would therefore not be out of character with the pattern of development of this group of buildings.
4.11 Taking into account the existing rear gardens to other properties on this side of the gardens, one more enclosed lightwell would not adversely affect the garden square and would preserve the character and appearance of the building and the Courtfield conservation Area.
5.5 … It is recognised that the communal garden is an important amenity space but in the context of the space as a whole, the excavation of this lightwell would not have a material impact upon the communal space available to residents and would not reduce the amenity value of the green space.
5.6 … The proposed lightwell would not alter the overall planting scheme or proportions of the gardens. The grassed path between the planted area and the rear of the...
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