University of Leicester v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 07 March 2016 |
| Neutral Citation | [2016] EWHC 476 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5100/2015 |
| Date | 07 March 2016 |
[2016] EWHC 476 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
In the matter of s.288 of the Town and Country Planning Act 1990
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Supperstone
Case No: CO/5100/2015
Timothy Corner QC (instructed by Gateley plc) for the Claimant
Gwion Lewis (instructed by Government Legal Department) for the First Defendant
The Second Defendant did not attend and was not represented
Hearing date: 16 February 2016
Introduction
In this application under s.288 of the Town and Country Planning Act 1990 ("the TCPA 1990"), the Claimant ("the University") challenges the decision of an Inspector, appointed by the First Defendant, dated 11 September 2015, dismissing its appeal under s.195 of the TCPA 1990 against the refusal of the Second Defendant ("the Council"), to grant its application for a certificate of lawful use ("LDC").
The Claimant sought a certificate to the effect that one of its halls of residence, John Foster Hall ("JFH"), could be used lawfully as a hall of residence for students and those attending day and residential conferences.
Factual Background
The background to these proceedings as set out below is not in dispute. On 23 November 2012 the University applied to the Council under s.191(1)(a) of the TCPA 1990 for an LDC in respect of JFH for:
"hall of residence together with day and residential conferences, such conferences falling within the use as applied for and permitted by planning permission ref. 03–407–8M and 04/00189/FUL granted in 2004 and 2005 respectively and/or being ancillary to the use of the subject site as a hall of residence."
On 19 August 2014 the Council refused the application because
"On the evidence submitted by the Applicant, or otherwise available to the Council, the premises has not been used continuously for a mixed halls of residence and conference use for a period of ten or more years nor is it expressly permitted through previous planning permissions relating to the site."
The University appealed to the First Defendant against the refusal under s.195 of the TCPA 1990 and an inquiry was held by Mr B.S. Rogers ("the Inspector") on 3 September 2015. By letter dated 11 September 2015 ("DL") the Inspector dismissed the appeal.
JFH is a complex of buildings belonging to the University. It is in a mixed use for the purpose of provision of accommodation for students, and for those attending conferences.
JFH is a part redevelopment of a previous complex, also owned by the University, known as Villiers Hall. Before the redevelopment Villiers Hall was also in a mixed use for the provision of accommodation for students and those attending conferences. The redevelopment involved the demolition and replacement of the existing halls of residence and an extension to the existing facilities building.
JFH was developed pursuant to two planning permissions: (1) Permission reference 03–407–8M dated 5 February 2004 ("the 2004 permission"); and (2) Permission reference 04/00189/FUL dated 29 July 2005 ("the 2005 permission").
The application for what became the 2004 permission was received by the Council on 10 July 2003. The proposed development (as amended) was described on the application form as:
"student accommodation – 569 [this was a typing error; the correct number was 509] rooms – plus addition to existing communal facilities building, new road, paths and landscaping."
The application was considered by the Council's Development Control Committee ("the Committee") at its meeting on 8 January 2004. The officers' report, which recommended that planning permission should be granted, specifically referred to the University's intention to use the proposed accommodation not only for students but also for those attending conferences at the University. In particular:
i) Under the heading "DESCRIPTION OF PROPOSAL" it is stated (4 th paragraph)
"the units would be used for the majority of the year to house the students that are attending the University. It is also proposed that the building will also be used during holiday time to provide accommodation for the users of the various conferences which are run by the University within their Manor Road campus."
ii) Under the heading "EXPLANATORY COMMENTS" and under the sub-heading " Impact through increased vehicular traffic" it is stated
"The County Council's Highways Department was consulted over the development…
The use of the units for conference accommodation was brought to their attention. The University in its management plan had indicated that any delegates attending the course would be informed in advance of their parking area and, for the attendees which would not be in spaces adjacent to their accommodation, a bus service would be provided to transport them from parking spaces to their accommodation…
The main comments of the Highways Department were as follows…
You will note that the revised management statement now includes a commitment that the University will ensure that all conference parking is provided within its land holding in advance of the conference date…"
Correspondence and meeting notes involving the Highway Authority which were before the Inspector provide further evidence of the knowledge of both the Highway Authority and the Council that the University planned to use JFH for conferences. These documents include the following: (1) meeting note dated 19 August 2003 between the University's transport consultants and Mr Frank Bedford on behalf of the Highway Authority; (2) e-mails dated 8 October 2003 timed 10:56 and 17:03 from Mr Bedford to the University's transport consultants; (3) a letter dated 10 October 2003 from Mr Bedford to Mr Martin Yardley, the Council's Assistant Director Planning; (4) a letter dated 14 October 2003 from Mr Bedford to Mr Yardley; and (5) a letter dated 19 November 2003 from Mr Bedford to Mr Yardley.
It is clear from the officers' report that local residents objecting to the development knew that JFH was intended to be used for conferences. At the start of the section "EXPLANATORY COMMENTS" the officer refers to local representations, including objections that the development would
"increase disruption caused by conference use, delegates have little regard for local residents…"
"cause traffic congestion along Manor Road especially during conference time…"
One of the residents' letters raising such objections dated 23 September 2003 was before the Inspector.
The Committee resolved to grant planning permission for the development. The minutes of the meeting refer to the Highway Authority having sought "a payment of £25,000 towards highway works, a cycleway and a green travel plan (for students and delegates)". Further, the Head of Planning explained that the proposed redevelopment of Villiers Hall represented an "intensification, but not a change of use".
By notice dated 5 February 2004 permission ("the 2004 permission") was granted for
"DEMOLITION OF EXISTING HALLS OF RESIDENCE AND THE ERECTION OF 14 BLOCKS COMPRISING OF A TOTAL OF 509 ROOMS PLUS EXTENSION TO EXISTING FACILITIES BUILDING (REV B)…"
Condition 15 requires that prior to the occupation of any part of the accommodation a legal agreement should be entered into to ensure that the requirements of the Highway Authority were met. In the "Note(s) to Applicant" at the end of the permission notice it is stated at paragraph 8:
"This decision is conditional upon the terms of the planning agreement which has been entered into by the developer and the Council under section 106 of the Town and Country Planning Act 1990 (as amended)…"
However, no section 106 agreement was entered into between the University and the Council before the issue of the 2004 permission.
On 19 April 2004 the Council received the University's application for what became the 2005 permission. The development applied for was described on the application form as
"student accommodation – construction of an additional 77 no. study bedrooms."
By notice dated 29 July 2005 permission was granted for
"Amended scheme to approved application for redevelopment of students accommodation incorporating the construction of an additional 72 number study bedrooms (Rev B)."
Condition 33 of the 2005 permission states:
"This permission shall only be implemented in conjunction with permission 03/0407/8M dated 5 February 2004."
In the Note(s) to Applicant at the end of the 2005 permission it is stated at paragraph 7:
"This decision is also conditional upon the terms of the planning agreement which has been entered into by the developer and Leicestershire County Council and Oadby and Wigston Borough Council under Section 106 of the Town and Country Planning Act 1990 (as amended) to ensure that the requirements of the highway authority are met…"
At the inquiry before the Inspector it was common ground that the section 106 agreement referred to in the 2005 permission was the agreement of 22 July 2005 ("the section 106 agreement"). The section 106 agreement defines the "Development" to which it applies as
"the construction of 581 Study bedrooms at the site pursuant to the Planning Permission."
The section 106 agreement contains provisions which make clear that it was contemplated by the parties that conference use of the accommodation would take place, in particular in the Fourth Schedule, dealing with the "TRAVEL...
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