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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Berkshire Assets (West London) Ltd, R (on the application of) v London Borough of Hounslow (rev 1) [2018] EWHC 2896 (Admin) (01 November 2018) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2018/2896.html Cite as: [2018] EWHC 2896 (Admin) |
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Neutral Citation Number: [2018] EWHC 2896 (Admin)
Case No: CO/1583/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 1 November 2018
Before :
JUSTINE THORNTON QC SITTING AS A DEPUTY HIGH COURT JUDGE
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Between :
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THE QUEEN on the application of
BERKSHIRE ASSETS (WEST LONDON) LIMITED |
Claimant |
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- and –
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LONDON BOROUGH OF HOUNSLOW
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Defendant |
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Rupert Warren QC (instructed by CMS Cameron McKenna Nabarro Olswang LLP ) for the Claimant
Saira Kabir Sheikh QC (instructed by London Borough of Hounslow ) for the Defendant
Hearing date: 10 October 2018
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Judgment Approved
Justine Thornton QC, Deputy High Court Judge:
Introduction
Background Facts
3. The Claimant is the freehold owner of the Property. The Defendant is the local planning authority within whose administrative area the Property is located and is referred to as ‘the Council’ in this judgment. The Property has a lawful use as offices and has been vacant for a number of years.
(a) 213 self-contained residential flats (C3 use) together with associated parking facilities; and
(b) 252 self-contained residential flats (C3 use) together with associated parking facilities; and
(c) 274 self-contained residential flats (C3 use) together with associated parking facilities.
9. On the 10 th January 2018 the Council confirmed the Hounslow Article 4 Direction. It came into effect on the 11 th January 2018.
10. On 12 th and 13 th March 2018 the Council issued refusal notices in respect of the Claimant’s three applications for prior approval. The operative part of all the notices states:
“ The London Borough of Hounslow, as local planning authority, hereby confirm that the Council has assessed your application in respect of proposed development at the address shown below, as described by the description below, and concluded that prior approval is hereby Prior Approval Does Not Comply. [sic] ”
11. The Notices also all state the following in the “reasons” section:
“ Reasons:
The prior approval of the Council is refused: The site is subject to an Article 4 direction withdrawing permitted development rights afforded by Schedule 2, Part 3, Class O of the Town and Country Planning (General Permitted Development) (England) Order 2015 (As amended) and therefore Planning Permission is required for the development.”
Permitted Development Rights
16. Article 3 of the GPDO provides, so far as is relevant:
“(1) Subject to provisions of this Order…, planning permission is hereby granted for the classes of development described as permitted development in Schedule 2.
(2) Any permission granted by paragraph (1) is subject to any relevant exception, limitation or condition specified in Schedule 2.
(3) References in this Order to permission granted by Schedule 2 or by any Part, Class or paragraph of that Schedule are references to the permission granted by this article in relation to development described in that Schedule or that provision of that Schedule.
(4) Nothing in this Order permits development contrary to any condition imposed by any planning permission granted or deemed to be granted under Part 3 of the Act otherwise than by this Order.”
“Development consists of a change of use of a building and any land within its curtilage from a use falling within Class B1(a) (offices) of the Schedule to the Use Classes Order, to a use falling within Class C3 (dwellinghouses) of that Schedule.”
Schedule 2 Part 3 Class O paragraph O.1 to the GPDO sets out a number of conditions which are not relevant to the matters in issue in the present claim.
19. Schedule 2 Part 3 Class O Paragraph O.2 to the GPDO states:
“(1) Development under Class O is permitted subject to the condition that before beginning the development, the developer must apply to the local planning authority for a determination as to whether the prior approval of the authority will be required as to –
(a) transport and highways impacts of the development,
(b) contamination risks on the site,
(c) flooding risks on the site, and
(d) impacts of noise from commercial premises on the intended occupiers of the development,
And the provisions of paragraph W (prior approval) apply in relation to that application.
(2) Development under Class O is permitted subject to the condition that it must be completed within a period of 3 years starting with the prior approval date.”
“(a) the receipt by the applicant from the local planning authority of a written notice of their determination that such prior approval is not required;
(b) the receipt by the applicant from the local planning authority of a written notice giving their prior approval; or
(c) the expiry of 56 days following the date on which the application under sub-paragraph (2) was received by the local planning authority without the authority notifying the applicant as to whether prior approval is given or refused.”
Removing Permitted Development Rights
“If… the local planning authority is satisfied that it is expedient that development described in any Part, Class or paragraph in Schedule 2… should not be carried out unless permission is granted for it on an application, the… local planning authority, may make a direction under this paragraph that the permission granted by article 3 does not apply to –
(a) all or any development of the Part, Class or paragraph in question in an area specified in the direction; or
(b) any particular development, falling within that Part, Class or paragraph, which is specified in the direction, and the direction must specify that it is made under this paragraph.”
“A direction under paragraph (1) does not affect the carrying out of-
(a) development permitted by any Class in Schedule 2 which is expressed to be subject to prior approval where, in relation to that development, the prior approval date occurs before the date on which the direction comes into force and the development is completed within a period of 3 years starting with the prior approval date.”
26. The “prior approval date” is defined in Article 4(5) as meaning:
“the date on which-
(a) prior approval is given;
(b) a determination that such approval is not required is given, or
(c) any period for giving such a determination has expired without the applicant being notified whether prior approval is required, given or refused.”
30. The National Planning Practice Guidance explains in relation to Article 4 Directions:
“The use of article 4 directions to remove national permitted development rights should be limited to situations where this is necessary to protect local amenity or the wellbeing of the area. The potential harm that the direction is intended to address should be clearly identified. There should be a particularly strong justification for the withdrawal of permitted development rights relating to:
· a wide area (e.g. those covering the entire area of a local planning authority, National Park or Area of Outstanding National Beauty)…
· cases where prior approval powers are available to control permitted development…”
(Paragraph: 038 Reference ID: 13-038-20140306)
The Houslow Article 4 Direction
31. The Direction begins with the following recital:
“WHEREAS the Council of LONDON BOROUGH OF HOUNSLOW (“the Council”) being the appropriate local planning authority within the meaning of article 4(5) of the Town and Country Planning (General Permitted Development) (England) Order 2015 (“the Order”), is satisfied that it is expedient that development of the description(s) set out in Class O of Part 3 of Schedule 2 of this Order should not be carried out on the land described in the Second Schedule to this Direction and shown edged red on the attached Plans (“the Areas”) unless planning permission is granted on an application made under Part III of the Town and Country Planning Act 1990 (as amended).”
32. The Direction then states:
“NOW THEREFORE the Council in pursuance of the power conferred on it by Article 4 of the Order and all other powers thereby enabling
DIRECTS THAT:
the permission granted by Article 3 of the said Order shall not apply to development specified in the First Schedule to this Direction in respect of the Areas specified in the Second Schedule.”
33. The First Schedule reads as follows:
“Development consisting of a change of use of a building and any land within its curtilage (excluding any building or land in relation to which prior approval under paragraphs O.2 and W of Part 3 of Schedule 2 to the Order has been granted or under the terms of those paragraphs is treated as granted before the date this Direction is confirmed) from a use falling within Class B1(a) (offices) of the Schedule to the Town and Country Planning (Use Classes) Order 1987 (as amended), to a use falling within Class C3 (dwellinghouses) of that Schedule being development comprised within Class O of Part 3 of Schedule 2 to the Order and not being development comprised within any other Class.” (underlining is Court’s emphasis)
35. The underlined words in the First Schedule are the words in issue in this application.
Submissions on behalf of the Claimant
Submissions on behalf of the Defendant
Discussion
a) The Claimant says that if a prior approval has been granted in relation to a site or a building on the site, the Direction’s effect is excluded in relation to that site or building; certainly in relation to extant prior approvals and therefore further applications for permitted development rights are able to be made.
b) The Defendant says that the exclusion simply protects existing permitted development right accrued on sites or in relation to the buildings at the date of the Direction, and therefore no further scope exists for further applications for permitted developments rights to be made, even on such sites or in relation to such buildings.
41. The Court’s approach to interpretation of public law documents in the planning field is set out in Trump International Golf Club Scotland Limited v Scottish Ministers [2015] UKSC 74:
“When the court is concerned with the interpretation of words in a condition in a public document such as a section 36 consent, it asks itself what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and the consent as a whole. This is an objective exercise in which the court will have regard to the natural and ordinary meaning of the relevant words, the overall purpose of the consent, any other conditions which case light on the purpose of the relevant words, and common sense” (Lord Hodge at paragraph 34).
42. The decision is now treated as part of planning law and has been applied to the construction of planning permissions and conditions ( R(Skelmersdale Limited Partnership v West Lancashire Borough Council [2016] EWCA Civ 1260 and Lambeth v Secretary of State for Communities and Local Government [2018] EWCA Civ 844).
45. Applying the legal framework to the present case the following propositions emerge.
The plain meaning of the words in the Hounslow Direction
50. I accept Mr Warren’s submission that the Direction is to be read as excluding sites with extant prior approvals, granted before 11 th January 2018, from the restrictions on permitted development rights introduced by the Direction. This is apparent from the reference to ‘any building or land in relation to which prior approval. has been granted ...before the date this Direction is confirmed’ . The Council’s more restrictive interpretation, which limits the effect of the exclusion to specific development with extant prior approval, would require the word ‘development’ to be substituted for ‘any building or land’ in the wording of the Direction.
(2) A direction under paragraph (1) does not affect the carrying out of –
(a) development permitted by any Class in Schedule 2 which is expressed to be subject to prior approval where in relation to that development the prior approval dates occurs before the date on which the direction comes into force and the development is completed within a period of 3 years starting with the prior approval date (underlining is Court’s emphasis)
Context and purpose
6 Permitted development rights which allow offices to convert to residential use have been an important stimulator to the macro UK economy, Figures published in May 2014 by Knight Frank demonstrate that prior approval applications have been secured for over 3.2 million square feet of office conversions. Despite this positive progress, developers face uncertainty whenever local planning authorities issue non-immediate Article 4 directions. This is particularly the case when prior approval has been granted by a local planning authority but a developer has not completed development before a non-immediate Article 4 direction comes into force.
7 The prior approval process set out in paragraph J,2 of part 3 of Schedule 2 to the 1995 Order gives the London Borough of Sutton Council an opportunity to consider the impacts of the change of use in particular cases. We consider therefore, it is unreasonable for the Council to disapply the permitted development right by the Article 4 direction in relation to premises which have secured prior approval before the direction comes into force.
Decision
8 The Secretary of State has decided to modify the Article 4 direction to exclude any office premises which have secure (sic) prior approval before 29 th January 2015 and we attach a direction to that effect.
What did the Council in fact do?
“As I have said it is clear what Lambeth meant to do in a very broad sense. But that is not the question. The question is ‘what did Lambeth in fact do?’
“The objective of the exercise is not to determine what the parties meant to do in the broad sense but what a reasonable reader would understand by the language they in fact used” (see paragraph 38)
Relief
62. The Claimant also sought the following relief:
a) A declaration that the Hounslow Article 4 Direction which came into effect on the 11 th January 2018 does not apply to the Property so as to remove Part 3 Class O permitted development rights in respect of that Property so that it still enjoys those permitted development rights
b) A declaration that, since there has been no lawful determination of the applications for prior approval within the relevant 56 day period for determination and that period has expired without the authority notifying as to whether prior approval is given or refused the development identified in the December Prior Approval Applications may now begin
The expiry of 56 days following the date on which the application under subparagraph (2) was received by the local planning authority without the authority notifying the applicant as to whether prior approval is given or refused
Conclusion
67. By virtue of the reasoning above, I grant an order quashing the Defendant’s decisions dated 12 and 13 March 2018 where it purported to refuse three applications for Prior Approval made pursuant to Part 3 Class O of the Town and Country Planning (General Permitted Development) Order 2015 relating to a property known as Park View, Brentford. I decline to grant the declarations sought.