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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Carroll v Secretary of State for Communities and Local Government & Ors [2015] EWHC 316 (Admin) (17 February 2015) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2015/316.html Cite as: [2015] EWHC 316 (Admin) |
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QUEEN'S BENCH DIVISION
PLANNING COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
NIALL CARROLL |
Claimant |
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- and - |
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(1) SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT (2) ROYAL BOROUGH OF KENSINGTON AND CHELSEA (3) ZIPPORAH LISLE-MAINWARING |
Defendants |
____________________
Timothy Morshead QC (instructed by Richard Max & Co LLP) for the Third Defendant
Hearing date: 21 January 2015
____________________
Crown Copyright ©
Mr Justice Supperstone :
Introduction
i) The First Defendant acted unlawfully in failing to give interested parties, including the Claimant, an opportunity to comment upon the contention by the Appellant at the six week stage that the use was B8, the Second Defendant's subsequent agreement with that and the implications of such a use for the appeal.
ii) The First Defendant acted unlawfully in amending the description of development as the appeal was then determined on an entirely different basis and no opportunity was given to interested parties to comment on either the change or its effect.
iii) The First Defendant failed to have regard to material considerations, namely the decision of the Second Defendant to refuse planning permission for the change of use of the land from B8 to C3 and Strategic Objective CO2 of the Core Strategy.
Factual Background
"Proposed change of use from office use Class B1 to residential use Class C3. Proposed double storey subterranean extension and replacement of single glazed windows with double glazed windows to exactly match existing windows."
"The proposed loss of the 'medium' office (Use Class B1) floorspace in an 'accessible' area would deprive the Royal Borough of this valued floorspace which contributes to the range of business premises within the borough which allows businesses to grow and thrive, contrary to policies of the development plan, in particular policy CF5 of the Core Strategy adopted 8 December 2010."
"The appellants consider that the benefits of the appeal scheme in relation to Core Strategy policies (CH1 Housing; CL3 conservation area; and CL5 Residential amenity) outweigh the need to protect office use on the appeal premises. In particular, it will be demonstrated that:
a. The loss of office floorspace will not cause material harm to the supply of office accommodation in the area.
b. The layout of the building provides poor quality office accommodation with narrow rooms, poor natural light and limited services.
c. The property is in a predominantly residential area, and the recommencement of an office use could cause harm to the amenity of residents living in the vicinity of the site. In particular there are no planning conditions which control the use in terms of working hours or deliveries (Policy CL5).
d. The use of the premises (which has a gross floorspace of under 500sqm) can change to storage/warehouse B8, without needing planning consent under the Use Classes Order. Such a use would be even less compatible with residential character of the area. There are no policies which seek to protect B8 use (Policy CF5) against change of use to residential.
e. Residential use will provide an opportunity to improve the visual appearance of the building and re-landscape the garden and terrace areas (policy CL5).
Reference will be made to a number of other recent cases where planning consent has been granted for change of use from office to residential either by the council or on appeal. Whilst each case must be dealt with on its merits, it will be demonstrated that these decisions assist in striking a balance between the competing policies in relation to residential and office accommodation."
"The development proposed sought the change of use of the building from offices (Use Class B1) to a single residential unit (Use Class C3), involving the creation of a high quality single family dwelling on the site."
"5.1 The following elements of the proposed development were considered to be acceptable and as such are not considered to be in dispute as part of this appeal. They did not form any of the reasons for refusal and their acceptability was discussed within the officer's delegated report:
- Notwithstanding the loss of office accommodation, that the proposed use is acceptable in land use terms in providing an additional residential unit (paragraphs 4.3, 4.4 and 6.1 of the officer's report).
5.4 In light of the above agreed matters, and the appellant's willingness to enter into a legal agreement to address the second and third reasons for refusal, this appeal is concerned solely with the loss of the office accommodation at 19 South End."
"Current B8 Use
6.5 In August 2013 the building began to be used for the storage of furniture under the B8 Use Class. Prior to this the building was in Class B1 (a) office use, albeit the building was vacant and was not suitable for occupation as such. The previous occupier of the building (as an office use) vacated the premises in June 2011.
6.7 An application for a Certificate of Lawfulness of Existing Use was validated on 16 October 2013 (Ref. CL/13/04986) in relation to the use as B8 storage. This application is current at the time of this statement being prepared."
"The appellant has not proposed any changes to the scheme since it was refused and the proposal remains to be for the change of use of the property from office to residential with a subterranean extension and associated works to the windows."
"I understand that the appellant has informed the RBKC of her intention to change the use of the property from B1 to B8. In this regard she has carried out various internal works, which have resulted in the interior more resembling a storage facility/workshop than offices. This is a cynical ruse that appears designed to pressure local residents to drop their objection to the change of use and massive basement construction by threatening to introduce activities of a more industrial character into the street and to degrade the appearance of the property.
It is also tenuous to suggest that an owner may convert the building to B8 use for a substantial period of time (in order for the use to be properly instituted), with the aim of making a further application to convert to residential in due course. Such a further application would require RBKC approval. In considering the merits of that further application, it is likely that RBKC will take into consideration that there remains a permitted development right to convert back to B1 from the B8 use. So, although the appellant may institute storage on site, the building is still not taken out of the potential office stock for the borough."
"Such opportunity for residents to comment on her detailed motivations, or any other assertions she may choose to make in addition to those listed under the Grounds of Appeal, is not available in this instance. As there is a further period for comment by RBKC and the appellant until 18 December 2013, I must respectfully reserve my position to comment by the same 18 December date on any documentation produced by the parties."
"Demolition of existing building, excavation of new basement, construction of replacement dwelling above, and the associated change of use of the land from B8 storage to C3 residential."
"The applicant has stated that the property is approximately two-thirds full for storage of furniture and antiques. At the time of the officer's site visit, this was not the case, and large areas of the site were vacant or only used for the storage of small numbers of items."
The report concluded (at para 4.1):
"Therefore, on the balance of probabilities and based on the information provided by the applicant, it has not been demonstrated that the building is currently in class B8 use."
That decision was not appealed.
"The Certificate of Lawfulness (ref. CL/13/04986) was refused on 10 December 2013. The Officer's Report is attached as Appendix 1. The application was refused because, on the balance of probabilities, the building is not in use for class B8 purposes. In particular, the building is largely vacant and is not being used substantially for storage and the most recent Valuation Office reports also state that the majority of the floorspace is in use as 'offices and premises'. The Council agree that Policy CF5 does not protect class B8 floorspace, but this is irrelevant to this appeal because the premises are not in class B8 use, rather class B1."
"This paragraph completely ignores the fact that the building is being used for storage. It is a material consideration in the determination of this appeal, even if a Certificate of Lawful Use has not been granted."
"6.6 The lawful use of the premises was formerly class B1 office, and remained in this use when application 13/04986 was assessed. A site visit was subsequently undertaken on 17 January 2014 which revealed that the building was being used for storage purposes over the ground floor and part of the first floor. The remainder of the first floor and the second floor were vacant. Licences to use the property for storage purposes dated 26 July 2013 have been provided for three separate companies. Although not all the building is actively used for storage, the majority is. The latest rating for the property listed it as 'offices', but this was taken in August 2012 and does not take account of the recent changes to how the property is being used. It has been demonstrated that, on the balance of probabilities, the current use of the property is as 'storage' (class B8). The property is 382sqm and therefore benefits from permitted development rights to change use from class B1 to class B8. The property is therefore lawfully in class B8 use.
6.7 There are no policies protecting storage floorspace and residential use is encouraged. The loss of class B8 floorspace and the provision of a residential property is therefore acceptable. The residential unit would be 794sqm (GEA), which falls below the threshold to provide affordable housing which is defined as 'in excess of 800sqm (GEA)'. There is therefore no requirement to provide affordable housing as part of the proposal."
"The Committee noted the Council resisted loss of employment use and Council policy was to maintain B1 use. The Committee voted unanimously against the recommendation and:
RESOLVED –
To refuse the recommendations on the grounds that the scheme was contrary to Council policy which sought to protect B1 use of floorspace notwithstanding the exercise of permitted development rights."
"The proposal would undermine the Council's ambition to foster the Borough's vitality through the protection of a variety of commercial uses which provide for a diversity of uses within the Borough and which contribute to its character and to the local and wider economy. As such the proposal is contrary to policies CO2 and CF5 of the Core Strategy."
"Appeal at 19 South End, London W8 5BU
Ref. APP/K5600/A/13/2204526
Additional information material to the consideration of the appeal
I write in relation to the appeal at the above address.
With reference to the 9-week comments submitted to the Planning Inspectorate on 18th December 2013, I wish to direct the Inspector's attention to item 14 of the appellant's comments. The LPA alleged the building was in Class B1 use, and the appellant argued that it was being used as Class B8 storage.
A separate application was submitted to the Council in December 2013 which, amongst other things, proposed the change of use of the building from Class B8 storage use to Class C3 residential. A site visit with the Council undertaken on 17 January 2014 confirmed that the building was now lawfully used for Class B8 storage. I enclose the officer's report to committee for reference, which states at paragraph 6.6:
'It has been demonstrated that, on the balance of probabilities, the current use of the property is as "storage" (Class B8). The property is 382sqm and therefore benefits from permitted development rights to change use from Class B1 to Class B8. The property is therefore lawfully in Class B8 use.'
It is now agreed between the two parties that the current use of the appeal site at 19 South End is lawfully Class B8 storage use."
"Please find attached a letter in respect of appeal Ref: APP/K5600/A/13/2204526 at 19 South End and the Officer's Report to Committee in respect of application PP/1/07133.
The letter confirms that it is now agreed between the parties that the current use of the appeal site at 19 South End is lawful Class B8 storage."
The Decision Letter ("DL")
"The development proposed is described as 'a change of use from office Use Class B1 to residential Use Class C3."
The decision letter states, in so far as is material:
"Preliminary Matters
1. During the appeal process, it became apparent that the lawful use of the building is in Use Class B8. I return to this matter below but, as this matter is not in dispute between the main parties, I have amended the description of development accordingly. I have also amended the description of development to reflect the fact that if existing single-glazed windows are replaced with double-glazed windows, then they will not match.
Decision
2. The appeal is allowed and planning permission is granted for a change of use from office Use Class B8 to residential Use Class C3; double storey subterranean extension; and replacement of single-glazed windows with double-glazed windows at 19 South End, London W8 5BU in accordance with the terms of the application, Ref. /PP/13/02935, dated 28 May 2013, subject to the conditions set out in Annex A to this decision.
Main Issues
3. The Council refused planning permission for three reasons. The first related to the loss of space in Use Class B1…
Reasons
The Principle of the Use Proposed
4. As set out, it is agreed between the main parties that the lawful use of the existing premises is in Use Class B8.
5. In very simple terms, CS Policy CF5, cited in the Council's first reason for refusal, seeks to protect office and light-industrial uses (in Use Class B1). However, because the lawful use of No.19 is in Use Class B8 (storage and distribution) the policy has no application. There appears to be no equivalent policy that seeks to protect existing storage and distribution uses. I see no in-principle difficulty with the change of use to residential proposed, therefore.
6. In terms of the conservation area, I am cognisant, obviously, of the requirements of Section 72(1) of the Act. This requires the decision maker to pay special attention to the desirability of preserving or enhancing the character or appearance of conservation areas in the exercise of planning functions. It might be argued that the change of use proposed would have an impact on the character of the conservation area. However, given the mix of uses in the vicinity, and the residential uses immediately adjacent to the site, that impact would not be harmful and the character of the conservation area would therefore be preserved. There would be compliance too with CS Policy CL3 that reflects the provisions of the Act."
The Legal Framework
Planning Policy
"Strategic Objective for Fostering Vitality
Our strategic objective to foster vitality is that the quality of life of our predominantly residential Borough is enhanced by a wide variety of cultural, creative and commercial uses which can significantly contribute to the well-being of residents and to the capital's role as a world city."
"Location of Business Uses
The Council will ensure that there is a range of business premises within the Borough to allow businesses to grow and thrive; to promote the consolidation of large and medium offices within town centres; support their location in areas of high transport accessibility; and protect and promote employment zones for a range of small and medium business activities which directly support the function and character of the zone.
To deliver the Council will, with regard to:
Offices
a. Protect very small and small offices (when either stand alone or as part of a larger business premises) throughout the Borough; medium sized offices within the Employment Zones, Higher Order Town Centres, other accessible areas and primarily commercial mews;…
e. require all new business floorspace over 100sq.m to be flexible, capable of accommodating a range of unit sizes;
Light Industrial
f. protect all light industrial uses throughout the Borough;
g. require new light industrial uses to be located within Employment Zones, predominantly commercial mews and other areas where amenity is not harmed;
h. require the provision of a mix of unit sizes suitable for the creative and cultural businesses, as appropriate."
"The Council considers that a small, medium-sized or large business development is one with a total floor area of between 100sq.m and 300sq.m, between 300sq.m and 1,000sq.m and more than 1000sq.m respectively. It may be a development which will contain a single occupier or one which will contain a number of smaller units."
Town and Country Planning (General Permitted Development) Order 1995 ("the 1995 Order")
"Development consisting of a change of the use of a building—
(a) to a use for any purpose falling within Class B1 (business) of the Schedule to the Use Classes Order from any use falling within Class B2 (general industrial) or B8 (storage and distribution) of that Schedule;
(b) to a use for any purpose falling within Class B8 (storage and distribution) of that Schedule from any use falling within Class B1 (business) or B2 (general industrial)."
"Development is not permitted by Class B where the change is to or from a use falling within Class B8 of that Schedule, if the change of use relates to more than 235 square metres of floorspace in the building."
On 30 May 2008 the floorspace limit was raised to 500sqm.
Town and Country Planning (Appeals) (Written Representations Procedure) (England) Regulations 2009 ("the 2009 Regulations")
Requirements of Procedural Fairness
"Any participant in adversarial proceedings is entitled (1) to know the case which he has to meet and (2) to have a reasonable opportunity to adduce evidence and make submissions in relation to that opposing case."
"54. …in my view it clearly lies within the discretion of an Inspector to invite further representations if he considers it necessary to afford such an opportunity in the interests of fairness.
55. The need to invite further representations in the interest of fairness is likely to arise very infrequently. The sequence of representations provided for in the regulations will normally be sufficient to achieve fairness. But the opportunity to make additional representations can and should be given if a new point is raised which the Inspector ought to take into consideration and which cannot fairly be taken into consideration without giving such an opportunity. Whether fairness requires it depends entirely on the particular facts of the case."
"The Inspector was in my judgment only entitled to proceed to determine the appeal on the basis of the written representations if he could satisfy himself that an adequate opportunity had been given to the interested party to meet the new evidence that had been submitted very late by the Appellant."
He added (at para 53):
"If the Inspector wished to adhere, as he did, to the written statement procedure, he could only in my judgment do that consistently with the rules of natural justice by, as I have said, satisfying himself that the interested party was aware of the late evidence and had in fact chosen to make no comment upon it."
Policy on Appeals Procedures
"If an interested person wishes to make further representations on the appeal these must be made within 6 weeks of the start date. The Planning Inspectorate will send copies of any representations made by interested persons at the 6 week stage to the appellant and local planning authority. There is no further opportunity for interested persons to comment on the appeal after the 6 week stage."
"3. … Unless there is a material change in circumstances which could not have been foreseen at the time of the local planning authority's decision, new issues and wholly new evidence should not need to be introduced at appeal. This is in the interests of fairness so as to ensure that no party, including any third parties, is disadvantaged. … [A]ppellants should be confident in the strength of their case without commissioning new evidence"
"What happens if someone discloses evidence late?
3.2.1 If the appellant or the local planning authority introduces material during the appeals process which was not included within the grounds of appeal or sent with a questionnaire this can lead to the need to change the procedure or to adjourn hearings or inquiries. For appeals following the written representations procedure late disclosure may require an extension to the standard timetable, to allow all parties to be made aware of, and be given the opportunity to comment upon, the late evidence. Late disclosure of evidence can lead to a claim for costs."
"K.2.1 If an appeal is made the appeal process should not be used to evolve a scheme and it is important that what is considered by the Inspector is essentially what was considered by the local planning authority, and on which interested people's views were sought.
K.2.2 Where, exceptionally, amendments are proposed during the appeals process the Inspector will take account of the Wheatcroft Principles when deciding if the proposals can be formally amended. In the 'Wheatcroft' judgment the High Court considered the issue of amendments in the context of conditions and established that 'the main, but not the only, criterion on which judgment should be exercised is whether the development is so changed that to grant it would be to deprive those who should have been consulted on the changed development of the opportunity of such consultation'. It has subsequently been established that the power to consider amendments is not limited to cases where the effect of a proposed amendment would be to reduce the development.
K.2.3 Whilst amendments to a scheme might be thought to be of little significance, in some cases even minor changes can materially alter the nature of an application and lead to possible prejudice to other interested people.
K.2.4 The Inspector has to consider if the suggested amendment(s) might prejudice anyone involved in the appeal. He or she may reach the conclusion that the proposed amendment(s) should not be considered and that the appeal has to be decided on the basis of the proposal as set out in the application."
"If, exceptionally, any party provides new evidence at appeal stage this may lead to:
- delay – so that we can given the other party or interested people the opportunity to comment…"
Discussion
Ground 1: the First Defendant acted unfairly in failing to give the Claimant an opportunity to comment upon the Third Defendant's contention at the six-week stage that the use was B8, the Second Defendant's apparent subsequent agreement with that and the implications of such a use for the appeal.
Ground 2: The First Defendant acted unlawfully in amending the description of development as the appeal was then determined on an entirely different basis and no opportunity was given to Claimant to comment on either the change or its effect.
Ground 3: The First Defendant failed to have regard to material considerations, namely the decision of the Second Defendant to refuse planning permission for the change of use of the land from B8 to C3 and Strategic Objective CO2 of the Core Strategy.
"There was an obligation upon the Inspectorate at least to check. It would have taken a matter of seconds to go to the relevant website. If they had, they would have discovered exactly what the decision was and that it was directly in point."
Generally in relation to the Claimant's claim
Conclusion