Westminster City Council v Great Portland Estates Plc

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Fraser of Tullybelton,Lord Wilberforce,Lord Scarman,Lord Roskill,Lord Bridge of Harwich
Judgment Date31 Oct 1984
Judgment citation (vLex)[1984] UKHL J1031-2

[1984] UKHL J1031-2

House of Lords

Lord Fraser of Tullybelton

Lord Wilberforce

Lord Scarman

Lord Roskill

Lord Bridge of Harwich

Great Portland Estates Plc
(Respondents)
and
Mayor Etc. of the City of Westminster
(Appellants)
Lord Fraser of Tullybelton

My Lords,

1

I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Scarman, and I agree with it. For the reasons given by him I would vary the order of the Court of Appeal as he suggests.

Lord Wilberforce

My Lords,

2

I concur.

Lord Scarman

My Lords,

3

In these proceedings Great Portland Estates Plc. challenge certain parts of the City of Westminster district plan. They made their challenge by application to the High Court pursuant to section 244 of the Town and Country Planning Act 1971. Woolf J. dismissed the application, but on appeal the Court of Appeal upheld the challenge and quashed part of the policies for industrial and office development embodied in the plan. The City of Westminster, who are the local planning authority responsible for the plan, appeal with the leave of the Court of Appeal to your Lordships' House.

4

Section 244(1) of the Act of 1971 enables a person aggrieved to question the validity of a structure plan or a local plan on two grounds; either that it is not within the powers conferred by Part II of the Act of 1971 or that any requirement of Part II or of any regulations made thereunder have not been complied with in relation to the approval or adoption of the plan. The respondent company's case, which prevailed in the Court of Appeal, consists of two quite separate challenges. The first is that one aspect of the industrial policies embodied in the plan is not within the powers conferred by Part II of the Act of 1971. The second, which relates to the plan's policy for office development, is that in adopting the plan the City of Westminster failed to comply with certain requirements of the Act of 1971 and of the regulations made under it.

5

Section 244(2) of the Act of 1971 sets out the powers of the High Court. The court may grant interim relief by suspending the operation of the plan. The respondent company did seek such relief, but no question of an interim order now arises for consideration. Upon final determination of an application the court, if satisfied either that the plan is wholly or to any extent ultra vires or that the applicant's interests have been substantially prejudiced by failure to comply with a statutory requirement, may wholly or in part quash the plan. The subsection, therefore, confers upon the court a power to be exercised at its discretion. It would be surprising if a court were to refuse to quash if satisfied that the plan or part of it was ultra vires; but clearly discretion may bulk large in deciding whether or not to quash upon the second ground. In the instant case the appellant authority accepts that if any part of the plan is ultra vires it must be quashed. If, however, the House should hold that in respect of the office development policy there had been a failure to comply with a requirement in relation to the adoption of the plan, the appellant submits that the discretion should be exercised against making an order to quash the part of the plan affected by that failure.

6

Part II of the Act of 1971 makes provision for the preparation, adoption, and approval of development plans. Section 19 provides that in relation to Greater London Part II shall have effect subject to the provisions of Schedule 4 of the Act of 1971. The Schedule provides for a structure plan for Greater London. London Borough councils may prepare local plans: the appellants, being a local planning authority, prepared and in April 1982 adopted a local plan for their area, namely the City of Westminster district plan. The general provisions set out in paragraph 11 of the Schedule (as substituted by the Town and Country Planning (Amendment) Act 1972, section 4(1) and Schedule 1) apply to the plan. So far as material to this appeal, the paragraph provides:

"(2) The plan shall consist of a map and a written statement and shall — ( a) formulate in such detail as the council think appropriate their proposals for the development and other use of land in the area … or for any description of development and other use of such land … (4) In formulating their proposals in the plan the council shall — ( a) secure that the proposals conform generally to the Greater London development plan …, and ( b) have regard to any information and any other considerations which appear to them to be relevant … ."

7

The Greater London structure plan lays down the general strategy for the development and use of land in London. A local plan applies and may adjust this strategy to meet the planning needs of its area. A local plan's proposals, though they must conform generally to the structure plan, can deviate from it; and, if they do, the provisions of the local plan prevail for all purposes: section 14(8) of the Act of 1971.

8

When a London council proposes to prepare a local plan, it must secure adequate publicity so as to ensure that adequate opportunity is given for making representations (including, of course, objections) and the council "shall consider any representations made to them within the prescribed period": paragraph 12(1) of Schedule 4. And before the council adopts the plan it must make copies available for public inspection, and send copies to the Greater London Council and the Secretary of State. The Secretary of State has extensive powers (which include the giving of directions and the suspension of operation) in respect of local plans which it is not necessary to consider because none were exercised. The Greater London Council have a right to be consulted before a local plan is prepared.

9

Section 13 of the Act of 1971 makes provision for inquiries in respect of draft local plans. In the case of objections put forward in accordance with regulations made under Part II of the Act the council must cause a local inquiry to be held by a person appointed by the Secretary of State: section 13(1) of the Act of 1971. Section 14 (as amended) empowers the local planning authority after considering objections so made to adopt the plan entire as originally prepared or as modified so as to take account of objections or other material considerations.

10

Unless, therefore, the Secretary of State intervenes (which in this case he has not), the council as local planning authority has the power of decision. But the power is subject to a requirement which is to be found in regulation 17(1) of the Town and Country Planning (Local Plans for Greater London) Regulations 1974 ( S.I. 1974 No. 1481). Where a local inquiry to consider objections has been held, the local planning authority shall:

"consider the report of the person appointed to hold the inquiry … and decide whether or not to take any action as respects the plan in the light of the report and each recommendation, if any, contained therein; and that authority shall prepare a statement of their decisions, giving their reasons therefor."

11

Within the statutory frame which I have outlined it is now necessary to consider the two challenges made by the respondents to the district plan. I will deal first with the challenge to the industrial policies embodied in the plan: and secondly with the challenge to the plan's policy for office development.

The "industrial" challenge
12

The industrial policy under challenge is in paragraphs 11.21 to 11.26 of the plan. The general policy is that applications for planning permission for new industrial floor-space and the creation of new industrial employment will, subject to other policies, be encouraged. The plan, however, goes on to protect "specific industrial activities." The council explains what it means by these words in paragraph 11.22, which, because of its importance, I quote:

" Purpose. The city council considers that those industrial activities with important linkages with central London activities, particularly in the central activities zone, should be maintained."

13

The critical words are "important linkages with central London activities", since they define the planning purpose of the policy of protection. Paragraph 11.23 gives the reasons for the policy: they are:—

"In 1971 about half the industrial floorspace in Westminster was located in the central activities zone. The greater proportion of this floorspace was occupied by firms which had been long established in the area, such as clothing, fur and leather, and paper, printing and publishing. Many of these industries need a central location in order to maintain the services required, but this central location also makes them vulnerable to pressure from other more financially profitable uses. The city council feels that the loss of these supporting industrial activities may threaten the viability of other important central London activities."

14

The reason, therefore, for the policy of protection is that, in the opinion of the council as local planning authority, the loss of the specified industrial activities may threaten the viability of other important central London activities.

15

In paragraph 11.24 the council makes the comment that while it cannot influence "internal changes in the operation of a firm" (which I take to be a reference to such matters as a business's financial viability, its market success or failure, and its management) it can influence "external pressures" which could interfere with "established linkages." The point is clear, though the jargon may strike some as unattractive:— by the exercise of its planning powers the council can protect the specified industrial activities from disappearance in the face of the competitive pressure to redevelop their sites for other more profitable uses which, however, do not assist the viability of other important...

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