Travis Perkins (Properties) Ltd (Claimant) Westminster City Council (Defendant) Grosvenor Estate Belgravia and Others (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Jarman |
| Judgment Date | 03 November 2017 |
| Neutral Citation | [2017] EWHC 2738 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/67/2017 |
| Date | 03 November 2017 |
[2017] EWHC 2738 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
His Honour Judge Jarman QC
Case No: CO/67/2017
Mr Gregory Jones QC (instructed by Freeths LLP) for the claimant
Ms Saira Kabir Sheikh QC and Mr Cain Ormondroyd instructed by the defendant
Mr Christopher Katkowski QC and Mr Richard Moules (instructed by Ashurst LLP) for the first interested party
The other interested parties did not appear and were not represented
Hearing dates: 31 October 2017
HH Judge JarmanQC:
With the permission of Lang J the claimant (Travis Perkins) seeks by way of judicial review to challenge the grant of planning permission by the defendant planning authority (the authority) dated 30 November 2016 for the redevelopment of a timber yard known as Newson's Yard behind Nos 41 to 63 Pimlico Road, London SW1W 8NE. The decision was made by the planning applications committee, on the basis of a report of the director of planning which recommended granting conditional permission subject to an agreement under section 106 of the Town and Country Planning Act 1990 to secure highway and parking benefits.
The yard comprises a building which has external brick walls, internal brick pillars and a glass lantern roof. It has been occupied by Travis Perkins as a timber and builders' merchants since the 1990s and is let by the first interested party (Grosvenor), who applied for the permission. Grosvenor is seeking possession from Travis Perkins on the basis of the redevelopment, and those proceedings are presently stayed. The remaining interested parties are the freeholders.
The yard is also known as No 61 Pimlico Road and that is where pedestrian and vehicular access/egress is gained to the road. It is enclosed on all four sides by nineteenth century residential buildings. On the Pimlico Road side, the buildings have shops on the ground floor.
The permitted development is set out at some length in the permission. For present purposes, it can be summarised as the retention of the facades of Nos 41, 43, 57, 59 and 63 but with new shopfronts, the demolition of No 61 and construction of accommodation and ground to third floor levels, the creation of four Class A1 retail units at basement, ground and mezzanine level, seven Class C3 residential dwellings at first to third floor levels, and the replacement of the yard's glazed lantern roof.
The structure and external appearance of the yard building would not be altered materially to accommodate this development, but internally it would be physically subdivided into retail units with each subdivision extended to the buildings fronting Pimlico Road. Accordingly, it would no longer be suitable for use as a timber or builders' merchants.
The site lies within Belgravia Conservation Area, and was developed in the early to mid-nineteenth century. The yard was established towards the end of that period but was badly damaged by fire in 1877 and rebuilt. The only original features to survive are the original walls. A draft conservation area audit identified the buildings fronting on to Pimlico Road as "unlisted buildings of merit" which "make a significant contribution to the character and appearance of that part of the conservation area." The yard itself and No 61 was identified as making a neutral contribution.
Travis Perkins says that the authority erred in law when it granted the permission, and did so in three ways. The first is that it failed to take into account the harm that the proposed development would cause to the fabric of the yard building and to its historic use, as well as to local consumers, because of the cessation of the timber and builders' merchants use.
The second error identified is a failure to take into account or apply policy S25 of the Westminster City Plan, which provides:
"Recognising Westminster's wider historic environment, its extensive heritage assets will be conserved, including its listed buildings, conservation areas, Westminster's World Heritage Site, its historic parks including five Royal Parks, squares, gardens and other open spaces, their settings, and its archaeological heritage. Historic and other important buildings should be upgraded sensitively, to improve their environmental performance and made them easily accessible."
The third error relied upon is a failure to take into account paragraph 135 of the National Planning Policy Framework (NPPF), which states:
"The effect of an application on the significance of a non-designated heritage asset should be taken into account in determining the application. In weighing applications that affect directly or indirectly non designated heritage assets, a balanced judgment will be required having regard to the scale of harm or loss and the significance of the heritage asset."
The NPPF defines heritage asset as:
"A building, monument, site, place, area or landscape identified as having a degree of significance meriting consideration in planning decisions, because of its heritage interest. Heritage asset includes designated heritage asset and assets identified by the local planning authority (including local listing.)"
Mr Jones QC for Travis Perkins accepts that objections relating to the cessation of the yard as a timber and builders' merchants, cessation of that use as an historic use, and changes to the internal fabric of the yard building were all referred to in the report, but what he complains of is that the director in analysing the objections on these issues failed to advise the members of the committee how to deal with them and in particular failed to advise that these issues were material considerations to be weighed in the balance.
His oral submissions went somewhat further than his skeleton argument by suggesting that the report substantially misled members when it indicated in several places that the subdivision of the internal space of the yard building and the erection of extended mezzanines fell outside planning control. He accepts that internal alterations to unlisted buildings are excluded from the statutory definition of development by virtue of section 55(2)(a) of the 1990 Act. However, he submits that as this application involved works which did amount to development, the report should have made clear that it was within the power and control of the authority to refuse permission taking into account these three considerations.
He also accepts that the report did not have to refer expressly to Policy S25 or paragraph 135 of NPPF, as long as it dealt substantively with what was required by these policies. Again, he submits that the report did not do that.
Ms Sheikh QC for the authority and Mr Katkowski QC for Grosvenor both accept that these were material considerations and submit that when the report is read fairly as a whole, each of these issues was sufficiently dealt with and that to say otherwise would be to approach the report hypercritically, and thus impermissibly.
The proper ambit of the approach of courts to such reports have been the subject of much judicial comment, and the principles were not in dispute before me. It suffices to refer to two recent judgments of Lindblom LJ.
The first is Mansell v Tonbridge and Malling District Council [2017] EWCA Civ 1314. At paragraph 42 of his leading judgment, Lindblom LJ summarised the relevant principles, which for present purposes may be distilled further as follows:
i) Such reports are not to be read with undue rigour, but with reasonable benevolence, and bearing in mind they are written for councillors with local knowledge.
ii) The question for the court will always be whether, on a fair reading of the report as a whole, the officer has materially misled the members on a matter bearing upon their decision.
iii) It is only if the advice in the officer's report is such as to misdirect the member in a material way, so that otherwise the decision would or might have been different, that the court will be able to conclude that the decision itself was rendered unlawful by that advice.
iv) Where the line is drawn between an officer's advice that is significantly or seriously misleading in a material way, and advice which is misleading but not significantly will always depend on the context and circumstances in which the advice is given and on the possible consequences of it.
v) Where an officer has simply failed to deal with a matter on which the committee ought to receive explicit advice if the authority is to be seen to have performed its decision-making duties in accordance of the law, then the court will interfere, but only if there is some distinct and material defect in the officer's advice.
The second authority is St Modwen Developments Ltd v Secretary of State for Communities and Local Government & others [2017] EWCA Civ 1643. Again, Lindblom LJ gave the lead judgment in which at paragraph 7 he said that an officer's report "should not be laboriously dissected in order to find fault."
Mr Jones relies upon a passage in the leading judgment of Lewison LJ in R (Khodari) v Royal Borough of Kensington and Chelsea & Anor [2017] EWCA Civ 333, which he says is on all fours with his case. After referring to section 55 (2)(a) of the 1990 Act, Lewison LJ had to deal with the argument that the loss of internal features of an unlisted building was nevertheless a material consideration which the local planning authority failed to consider, and at paragraph 21 he said this (with original emphasis):
"I would accept that the loss of internal features is cap...
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Table of Cases
...Environment, Food and Rural Affairs [2017] EWHC 1866 (Admin), [2018] PTSR 15 606 Travis Perkins (Properties) Ltd v Westminster CC [2017] EWHC 2738 (Admin), [2017] All ER (D) 50 (Nov) 293 Trevelyan v Secretary of State for the Environment, Transport and the Regions [2001] EWCA Civ 266, [2001......
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Appeals and Review of Planning Decisions
...the full, objectively assessed needs for housing of the area. 51 See also Travis Perkins (Properties) Ltd v Westminster CC [2017] EWHC 2738 (Admin) where, in refusing an application for judicial review, the court held that an officer’s report should not be laboriously dissected in order to ......