Zipporah Lisle-Mainwaring v Niall Carroll

JurisdictionEngland & Wales
JudgeLord Justice Lindblom,Lord Justice Flaux,Lord Justice McFarlane
Judgment Date08 September 2017
Neutral Citation[2017] EWCA Civ 1315
Docket NumberCase Nos: C1/2016/4031 and C1/2016/4092
CourtCourt of Appeal (Civil Division)
Date08 September 2017
Between:
Zipporah Lisle-Mainwaring
Appellant
and
Niall Carroll
Respondent
And Between:
Secretary of State for Communities and Local Government
Appellant
and
Niall Carroll
Respondent

[2017] EWCA Civ 1315

Before:

Lord Justice McFarlane

Lord Justice Lindblom

and

Lord Justice Flaux

Case Nos: C1/2016/4031 and C1/2016/4092

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ADMINISTRATIVE COURT

PLANNING COURT

MRS JUSTICE LANG DBE

[2016] EWHC 2462 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Mr Paul Brown Q.C. (instructed by Richard Max and Co. LLP) for the Appellant in the first appeal

Ms Katrina Yates (instructed by the Government Legal Department) for the Appellant in the second appeal

Mr Richard Harwood Q.C. (instructed by Mishcon de Reya) for the Respondent in both appeals

Hearing date: 10 May 2017

Judgment Approved by the court for handing down

(subject to editorial corrections)

Lord Justice Lindblom

Introduction

1

Did an inspector who allowed appeals against the refusal of planning permission for the change of use of a building from storage use to residential use err in law in rejecting an objector's argument that the appeals should be dismissed to make it possible for the building's previous use as offices to be resumed? That is the question at the heart of these two appeals. The relevant legal principles are well established. No novel issue of law arises.

2

The appeals are against the order of Lang J., dated 12 October 2016, allowing the application of Mr Niall Carroll under section 288 of the Town and Country Planning Act 1990 for an order to quash the decision of the inspector appointed by the Secretary of State for Communities and Local Government to determine five appeals made by Ms Zipporah Lisle-Mainwaring under section 78 of the 1990 Act against refusals of planning permission by the Royal Borough of Kensington and Chelsea Council. The proposals before the inspector were for development at 19 South End, London W8, premises owned by Ms Lisle-Mainwaring – which I shall call "No.19". Mr Carroll owns the adjoining premises at 18 South End – which I shall call "No.18". He objected to the proposals. The inspector held an inquiry into the appeals in December 2015. In a decision letter dated 12 February 2016 he allowed two and dismissed the other three. We are concerned only with the two he allowed, in both of which the proposal involved the change of use of No.19 from storage use within Class B8 of the Town and Country Planning (Use Classes) Order 1987 to Class C3 use as a dwelling-house. In the first appeal before us the appellant is Ms Lisle-Mainwaring; in the second, the Secretary of State. The respondent in both is Mr Carroll. The council has played no active part in the proceedings. Permission to appeal was granted by the judge.

The issues in the appeals

3

The main issues are common to both appeals. They are:

(1) Did the judge approach Mr Carroll's application under section 288 correctly, having regard to the principles governing the relevance of alternative proposals or uses in the making of a planning decision (grounds 1 and 2 of both appeals)?

(2) Did the judge err in concluding that this could be regarded as an "exceptional case", in which an alternative Class B1 office use for No.19 was a material consideration (ground 3)?

(3) In any event did the inspector make any material error of law (ground 4)?

The essential facts

4

South End is in Kensington, to the south of Kensington Square. For many years, until 2011, the building at No.19, a three-storey building in a terrace, had been in office use within Class B1. It has a somewhat complicated history, which need not be recited in full. The building at No.18 was owned and occupied by the company that had the lease of No.19. It too had been in office use, but by the time it was acquired by Mr Carroll it was in residential use, within Class C3. The lease of No.19 as an office building expired in 2011, the tenant having failed to assign or sub-let. In August 2012 Ms Lisle-Mainwaring acquired No.19, outbidding Mr Carroll.

5

In May 2013 Ms Lisle-Mainwaring applied for planning permission for the change of use of No.19 to Class C3 use, and for the construction of a basement extension. That application was refused by the council in July 2013. Ms Lisle-Mainwaring appealed, but before her appeal was determined she changed the use of No.19 to storage use within Class B8. Such a change of use was lawful as permitted development under Class B of Part 3 in Schedule 2 of the Town and Country Planning (General Permitted Development) Order 1995. In July 2014 Ms Lisle-Mainwaring's appeal was allowed, the inspector having accepted that there was no basis in development plan policy for opposing a change of use from the lawful Class B8 use to Class C3. Supperstone J. quashed that decision on 17 February 2015, and ordered that the appeal be re-determined ( Carroll v Secretary of State for Communities and Local Government and others [2015] EWHC 316 (Admin)).

6

In November 2013 Ms Lisle-Mainwaring applied for planning permission for the demolition of the building at No.19, the excavation of a basement and the construction of a new building above it, and a change of use from Class B8 to Class C3 use. The council refused that application in May 2014. Again, Ms Lisle-Mainwaring appealed. That appeal was allowed in January 2015, but the decision was quashed by consent in June 2015.

7

In August 2014 and in November 2014, Ms Lisle-Mainwaring made two applications for planning permission for the demolition of the building, a change of use from Class B8 to Class C3 use, and the construction of a new dwelling-house – in the first proposal with a basement, in the second without. Neither of those applications was determined by the council, and Ms Lisle-Mainwaring appealed against non-determination.

8

On 22 July 2015 Ms Lisle-Mainwaring made yet another application for planning permission, this time for the change of use of No.19 from Class B8 to Class C3 use. That application was not determined, and again Ms Lisle-Mainwaring appealed.

9

That is how there came to be five appeals before the inspector at the inquiry in December 2015.

10

The inspector dismissed the three appeals in which a basement was proposed. The other two, to which he referred as Appeal C and Appeal E – which were the appeals for non-determination of the applications made in November 2014 and July 2015 – he allowed. These are the two appeals with which we are concerned.

The relevance of alternative proposals or uses in a planning decision

11

Section 70(2) of the 1990 Act requires that, in dealing with an application for planning permission, the decision-maker must have regard to the provisions of the development plan, so far as is material to the application, and to "any other material considerations". Section 38(6) of the Planning and Compulsory Purchase Act 2004 provides that "[if] regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise". This provision embodies a "presumption in favour of the development plan", as Lord Hope of Craighead described it in City of Edinburgh Council v Secretary of State for Scotland [1997] 1 W.L.R. 1447, at p.1449H (see also the recent decisions of this court in Secretary of State for Communities and Local Government v BDW Trading Ltd. (T/A David Wilson Homes (Central, Mercia and West Midlands)) [2016] EWCA Civ 493 and Barwood Strategic Land II LLP v East Staffordshire Borough Council [2017] EWCA Civ 893).

12

The general principles for determining whether a particular matter is a material consideration in a planning decision are well established (see the speech of Lord Scarman in In re Findlay [1985] 1 A.C. 318, at p.334B-D; and the judgment of Carnwath L.J., as he then was, in Derbyshire Dales District Council v Secretary of State for Communities and Local Government [2010] 1 P. & C.R. 19, at paragraph 23). Any consideration relating to the use and development of land is capable of being a planning consideration, but the question of whether a particular consideration is material in any particular case will depend on the circumstances (see the speech of Lord Scarman in Westminster City Council v Great Portland Estates Plc [1985] A.C. 661, at p.670C-E, and the judgment of Cooke J. in Stringer v Minister of Housing and Local Government [1970] 1 W.L.R. 1281, at p.1294G-H).

13

The desirability of preserving an existing use of land may be a material consideration when a decision is made on a proposal for a different use. In London Residuary Body v Lambeth London Borough Council [1990] 1 W.L.R. 744, Lord Keith of Kinkel observed (at p.751H to p.752B) that the decisions of the Court of Appeal in Clyde & Co. v Secretary of State for the Environment [1977] 1 W.L.R. 926 and the House of Lords in Westminster City Council v British Waterways Board [1985] 1 A.C. 676 did not lay down a "competing needs test" as a matter of law. At most, they established that "the desirability of preserving an existing use … is a consideration material to be taken into account …, provided there is a reasonable probability that such use will be preserved if permission for the new use is refused".

14

The existence of an alternative site for a particular development may also be a material consideration. But that is not generally so. In Trusthouse Forte Hotels Ltd. v Secretary of State for the Environment (1986) 53 P. & C.R. 293, Simon Brown J., as he then was, stated five basic principles (at pp.299 and 300), including "(1) … [the] fact that other land exists … upon which the development would be yet more acceptable for planning purposes would not justify the refusal of planning permission upon...

To continue reading

Request your trial
3 cases
1 books & journal articles
  • Planning Permission
    • United Kingdom
    • Wildy Simmonds & Hill Planning Law. A Practitioner's Handbook Contents
    • 30 August 2019
    ...in the foreseeable future in the event that the application was refused. Mount Cook was considered in Lisle-Mainwaring v Carroll [2017] EWCA Civ 1315, where it was said that even in an exceptional case, if the alternative proposal was to be a material consideration, it could not be incohate......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT