Material change of use — Change of use of local government buildings to offices — Application for determination under section 53 of the Town and Country Planning Act 1971 — Application for planning permission — Inspector recommending refusal of appeal against failure to determine that no material change of use had occurred — Inspector recommending refusal of planning permission — Secretary of State accepting inspector’s recommendation on section 53 determination — Secretary of State rejecting inspector’s recommendation regarding planning permission — Secretary of State granting planning permission for office use — Whether Secretary of State applied the right tests — Whether decision irrational — Whether Secretary of State had failed to give clear reasons
County Hall in
London has been used for local government and related purposes since it was
built. Office accommodation occupies substantially more than 50% of the
available space and the remainder has been used for uses peculiar to local
government such as the Council Chamber, lobbies and committee rooms. The London
Residuary Body made two applications to the local planning authority; the first
was under section 53(1) of the Town and Country Planning Act 1971 for determination
that the future use of the County Hall complex as offices would not constitute
or involve development of land. The second application was for planning
permission to change the use of the complex to office use if such a change be
determined as involving development. The local planning authority failed to
decide either application within the time-limit and the London Residuary Body
appealed to the Secretary of State for the Environment. The inspector appointed
by the Secretary of State recommended the dismissal of the first appeal; in his
view a change of use to office use would involve development. He recommended
that planning permission be granted for office use of the complex other than
the Main Block, but should be refused for the Main Block of the complex which
was required for local government purposes. By his decision letter, the
Secretary of State accepted that a change of use to office use would involve
development as the local government use was a use sui generis, was not
within the Use Classes Order and would involve a material change of use. But he
rejected the inspector’s recommendation to refuse planning permission and
himself granted planning permission for the use of the whole complex as offices
including the Main Block. The London Residuary Body challenged the decision of
the Secretary of State under section 247 of the Town and Country Planning Act
1971 and contended that a change of use of the complex to offices would not
involve development. In a related motion, put on behalf of the local planning
authority, Lambeth London Borough Council and the statutory bodies occupying
the complex, the Secretary of State’s decision to grant planning permission was
challenged under section 245 of the Town and Country Planning Act 1971 on four
grounds: (1) there had been a breach of rule 12 of the Town and Country
Planning (Inquiries Procedure) Rules 1974, in that the Secretary of State
differed from the inspector on a finding of fact;
(3) the Secretary of State had failed to apply the relevant test in determining
the weighing of two competing needs; and (4) the Secretary of State had failed
to give adequate reasons as required by rule 13 of the 1974 Rules.
The appeal under section 247 of the 1971 Act was dismissed. The inspector’s
whole process of reasoning, that the proposed change of use would amount to
development, involved a contrast between two separate uses, a primary use of
the complex for local government use and office use which he concluded was
materially different. He, and the Secretary of State, had correctly looked at
the present objective use of the complex, see p 87C-H. It is necessarily
implicit in the Town and Country Planning (Use Classes) Order 1987 that a
change from one office use to another may well involve a material change of
use, see p 88E.
2. The
applications under section 245 of the 1971 Act to quash the grant of planning
permission by the Secretary of State succeeded on one of the four grounds put
forward. There had been no breach of rule 12 of the Town and Country Planning
(Inquiries Procedure) Rules 1974, as the Secretary of State did not differ on a
finding of fact, he merely expressed a different preference, see p 95E-G. The
decision of the Secretary of State had not been irrational and contrary to the Wednesbury
principles, although it was a somewhat surprising conclusion that he felt that
the interests of the authorities presently occupying County Hall would not be
harmed, see p 96B. The Secretary of State was entitled to find the merits of
retention of the local governmental use insufficient to outweigh the general
presumption in favour of planning permission: the desirability of preserving an
existing use was a material consideration and no more, see pp 97D and 98B.
However, the Secretary of State had failed to give clear reasons for his
decision as required by rule 13(1) of the 1974 Rules. The decision letter was
couched in terms that misled the reader as to how the Secretary of State had reasoned
that the general presumption in favour of planning permission was not
outweighed by the competing needs of the occupying authorities, see p 99C-E.
Those authorities had suffered prejudice and the planning permission must be
quashed, see p 99F.
to in the judgment
Associated
Picture Houses Ltd v Wednesbury Corporation
[1948] 1 KB 223; [1947] 2 All ER 680; (1947) 45 LGR 635, CA.
Clyde
& Co v Secretary of State for the
Environment [1977] 1 WLR 926; [1977] 3 All ER 1123; (1977) 75 LGR 660; 35
P&CR 410; [1977] EGD 892; 244 EG 1024, [1977] 2 EGLR 148; [1977] JPL 521,
CA.
Council
of Civil Service Unions v Minister for the Civil
Service [1985] 1 AC 374.
Lewis v Secretary of State for the Environment (1971) 70 LGR 291;
23 P&CR 125, DC.
Luke (Lord)
of Pavenham v Minister of Housing and Local
Government [1968] 1 QB 172; [1967] 3 WLR 801; [1967] 2 All ER 1066.
Panayi v Secretary of State for the Environment (1985) 50 P&CR
109; [1985] JPL 783.
Poyser
and Mills’ Arbitration, In re [1964] 2 QB 467; [1963]
2 WLR 1309; [1963] 1 All ER 612.
Rogelan
Building Group Ltd v Secretary of State for the
Environment [1981] JPL 506.
Shephard v Buckinghamshire County Council (1966) 64 LGR 422; 18
P&CR 419.
Snook v Secretary of State for the Environment (1975) 33 P&CR
1; [1976] EGD 769; 237 EG 723, [1976] 1 EGLR 148; [1976] JPL 303.
Westminster
City Council v British Waterways Board
[1985] AC 676; [1984] 3 WLR 1047; [1984] 3 All ER 737; (1984) 83 LGR 113; 49
P&CR 117; [1984] EGD 213; 272 EG 1279, [1984] 2 EGLR 109, HL.
Westminster
City Council v Great Portland Estates plc
[1985] AC 661; [1984] 3 WLR 1035; (1984) 50 P&CR 34; [1985] JPL 108; sub
nom Great Portland Estates plc v Westminster City Council [1984] 3
All ER 744, HL.
Applications
under sections 247 and 245 of the Town and Country Planning Act 1971
These were two
related appeals challenging the decision of the Secretary of State for the
Environment. The first appeal was brought under section 247 of the Town and
Country Planning Act 1971 seeking to quash a decision of the Secretary of
State accepting the recommendation of his inspector, whereby an appeal against
the deemed refusal to determine an application under section 53(1) of the 1971
Act within the due time be dismissed. The second motion related to an appeal under
section 245 of the Town and Country Planning Act 1971 seeking to quash a
decision of the Secretary of State, whereby he rejected his inspector’s
recommendation, in an appeal against a deemed refusal by the local planning
authority to grant planning permission, that planning permission for office use
be refused.
Carnwath QC and John Howell (instructed by Linklaters & Paines) appeared
for the London Residuary Body.
(instructed by the chief solicitor to the council) appeared on behalf of the
local planning authority, Lambeth London Borough Council.
Fitzgerald QC and John Hobson (instructed by A R M Ennals, solicitor to the
Inner London Education Authority) appeared on behalf of the Inner London
Education Authority.
Barnes QC and John Male (instructed by V Atkinson, Head of Legal Services,
London Fire & Civil Defence Authority) appeared on behalf of the London
Fire & Civil Defence Authority and the London Waste Regulation Authority.
and Alison Foster (instructed by the Treasury Solicitor) appeared for the
Secretary of State for the Environment.
following judgment of the court was delivered.
SIMON BROWN
J: County Hall, Lambeth, needs no introduction. It
has long been the centre of London government. It was the headquarters first of
the London County Council, then of the Greater London Council. When that body
was abolished by the Local Government Act 1985 it became vested in the London
Residuary Body (LRB). It consists of four blocks: the Main Block, the North
Block, the South Block and the Island Block, the first three being linked to
the fourth (which, as its name implies, is surrounded by roads) by a high-level
bridge and pedestrian subways. The main building is listed Grade II*. It is 10
storeys high, including the basement and subbasement. The principal floor
contains many splendid rooms, notably the Council Chamber, the ambulatory, the
lobbies, the conference hall and many fine committee rooms. These and other
reception and meeting facilities account for some five per cent of the floor
space within this main building. Office accommodation accounts for nearly 50
per cent.
The remaining
floorspace is for storage, building maintenance, various support facilities and
other ancillary accommodation. The North Block consists essentially of 11
storeys of mundane office-type accommodation. The South Block consists of nine
storeys of similar accommodation. The Island Block provides modern and mostly
open-plan office accommodation. Taking the complex of four blocks as a whole,
office accommodation occupies substantially more than 50 per cent of the
available space.
Past and
present use of the complex has involved very extensive public access to the
buildings, with tens of thousands of visitors each year. The public come for
various reasons, some exercising statutory rights of attendance at meetings and
the like, others coming to use County Hall’s many different public facilities. The
complex is presently occupied, as to some 57 per cent by the LRB, some 26 per
cent by the Inner London Education Authority (ILEA) and some three per cent by
other bodies, including public authorities such as the London Fire and Civil
Defence Authority (LFCDA) and the London Waste Regulation Authority (LWRA). The
remaining 14 per cent odd is vacant.
The LRB is
obliged by law to dispose of such of its property holdings as it does not
require for carrying out its functions and to do so at the best price
reasonably obtainable. To that end, it has been seeking vacant possession of
the complex; the last notice to quit expires imminently on March 31 1988.
Further to that end, it wishes to market County Hall as a site available for
various uses. That wish prompted a number of planning applications. So far as
now relevant, those included, first, an application pursuant to section 53(1)
of the Town and Country Planning Act 1971 (‘the 1971 Act’) for a determination
that future use of the complex as offices would not constitute or involve
development of the land and, second (assuming, contrary to the LRB’s intention,
that such future use would constitute or involve development), an
application for planning permission to make that change of use to office use.
The London
Borough of Lambeth (LBL), the local planning authority, having failed to decide
those applications within due time, the LRB appealed to the Secretary of State.
The Secretary of State appointed David Keene QC as the inspector. An inquiry
was held, beginning in April 1987 and lasting seven weeks. It was followed in
August 1987 by a careful and detailed 227-page report, which concluded with the
inspector recommending both dismissal of the appeal under section 53 and
refusal of planning permission for change of use of the main building (and of
the complex as a whole because and in so far as it includes the main building)
to use as offices.
By his
decision letter, dated October 20 1987, the Secretary of State accepted the
first of those recommendations and, accordingly, determined the section 53
appeal against the LRB. But he rejected the inspector’s recommendation
regarding planning permission and himself granted this both for the whole
complex and for the Main Block, permitting their future use as offices.
The future of
both County Hall and ILEA being emotive, not to say political, issues, those
decisions now bring no fewer than six public authorities before the court: the
Secretary of State to defend them, the LRB to challenge the section 53
determination that planning permission is needed, and LBL, ILEA, LFCDA and LWRA
to challenge the grant of that planning permission. As will readily be
appreciated, the LRB has two strings to its bow: if ultimately it either
procures a different section 53 determination or retains its grant of planning
permission, it succeeds in its aim. With that introduction, I turn to the
respective challenges.
The
section 247 appeal
By virtue of
section 53(1) of the 1971 Act, ‘if any person who proposes . . . to make any
change in the use of land, wishes to have it determined whether . . . the
making of that change would constitute or involve development of the land . . .
he may . . . apply to the local planning authority to determine that question’.
That determination in the instant case necessarily depended upon whether a new
future use ‘as an office’ would involve development. That, in turn, having
regard to the provisions of section 22 of the 1971 Act, depended, first, upon
whether the proposed change of use was material and, second, upon whether the
use of the complex hitherto has been ‘as an office’. For, if the use hitherto
has been ‘as an office’, namely, within Class B1 of the Town and Country
Planning (Use Classes) Order 1987, then no matter that the proposed future use
would involve a material change of use, it would not by virtue of section
22(2)(f) involve development because it would nevertheless be a use ‘for
any other purpose of the same class’.
Thus, for the
LRB to succeed upon their appeal before the Secretary of State, they had to
establish either that the proposed change was not material or that the use
hitherto had been as an office. As I shall shortly explain, both the inspector
and the Secretary of State, in my judgment very sensibly, considered
those issues the other way round, the decision upon the latter effectively
determining both.
There is no
dispute before me but that the inspector and the Secretary of State were
entitled to regard the relevant planning unit as the whole complex, and
entitled also to regard the planning use of each of the individual buildings
within the complex as being that of the planning unit as a whole. I further
proceed on the basis clearly recorded by the inspector that no one sought to
draw any distinction between the existing use at the date of application and
the use when the buildings were almost entirely occupied by the GLC. In the
result, as the inspector pointed out in para 2.25 of his report, ‘the issue to
be determined comes down to a comparison between the use when County Hall was occupied
by the GLC and an ‘ordinary office use”. In a sentence, the LRB’s contention
throughout has been that the use always was as offices, while the opposing
authorities have contended that it was sui generis capable of being
described as use as the seat of London-wide local government. As will shortly
appear, the Secretary of State accepted the inspector’s view which he put thus:
‘That the primary use of the building was for the exercise of local government
statutory functions’.
To some
extent, this issue has been bedevilled by imprecisions of language and labels.
For convenience’s sake, however, I shall describe the competing cases as being
between office use on the one hand and London governmental use on the other.
The inspector and the Secretary of State accepted this latter view, which
carried with it the conclusion that the office (or administrative) use of the
majority of the accommodation was ancillary to the London governmental use.
Having further, and as I believe by that stage inevitably, concluded also that
the proposed change from London governmental use to office use would be a
material change of use, the section 53 appeal failed.
So that the
grounds of the LRB’s challenge to this decision may be understood, it is
necessary at this stage to relate first the inspector’s main conclusions on
this part of the case and then the relevant passage from the Secretary of
State’s decision letter:
The
inspector’s report
2.82. It is
quite clear that one has to look at the character of the ‘existing’ use, by which
all parties mean the use as it was in the time of the GLC. Where one has a
complicated situation as is the case at County Hall, it is agreed that one
needs to determine the primary purpose of the use. In a sense, the nature of
the activities which went on in the Complex are well known: they consisted of
the execution of certain London-wide governmental functions, which involved
both meetings and decision-making by elected councillors and substantial
administrative activity by officers, the latter generally performing their
duties in rooms which could be classified as offices.
2.83. I agree
with the LRB that the identity of an occupier does not itself alter the
character of the use of land or buildings. That is evident from the decision in
Shephard v Buckinghamshire County Council. If the existing use of
the planning unit here was and is as offices, then it matters not that these
were local government offices. There will clearly sometimes be occasions where
a building occupied by part of a local authority will be in office use, as for
example where a Council department is located in a physically distinct building
clearly used for office purposes. At the same time, however, the identity of
the occupier may in some cases be connected with the nature of the activities
carried on and therefore with the character of the use itself.
The inspector
then, in para 2.84, explained why he regarded various descriptive documents
from the planning history of the site to be of limited importance only ‘because
it must principally be a question of what the
use’. I note in passing Mr Carnwath’s suggestion that that does scant justice
to the LBL’s description of the use of County Hall in a letter dated July 16
1986 as being ‘local government offices’, but, in my judgment, there is nothing
in that point.
I can pass
over paras 2.85-2.87, save to note that the inspector, while observing that
‘just under 60 per cent of the floor space is used for activities which may be
described as office type activities’, remarked, to my mind justifiably, that
that might not ‘tell one a great deal about the primary use of the unit’.
Para 2.88
begins thus:
Undoubtedly
the overall use of the complex can be characterised as an administrative one,
in the sense that it is administering things, in this case certain local
government services and functions.
That is a
sentence upon which the LRB place great reliance. I shall return to it.
I must recite
the whole of paras 2.89-2.91 as follows:
2.89. There
are certain characteristics of the existing use which are not to be found in
conventional offices. These derive largely from the fact that the use has been
by a democratically elected body. Mr Dodsworth for the LRB acknowledged in
cross-examination that the first floor of the Main Building has been the heart
of the Complex, and whilst such anthropomorphic expressions can be misleading,
in the present case it does give a proper indication of the importance
realistically attaching to the activities carried on in the Council Chamber and
the Committee Rooms. An essential part of the use was decision making in a
public forum, necessitating a debating chamber with voting lobbies, press
gallery and all the paraphernalia of party politics. This characteristic
permeated the Committee Rooms. While the floorspace occupied by such activities
may have been far less than the areas occupied for more conventional office
activities, the latter as Mr Dodsworth again acknowledged were really there
because the decision making process required servicing by officers.
2.90.
Moreover, it was because these buildings were being used as the headquarters of
an elected local government body that there was such a significant degree of
public involvement in and public access to the buildings. It will be clear from
the facts set out earlier that the public access to and use of the Complex has
been considerable. Partly this is as a result of the statutory rights possessed
by the public to obtain access to Council and Committee meetings and to
documents such as the Planning Register, and the fact that those rights existed
and were exercised is clearly of importance. But as the LRB acknowledged
through their Counsel, one has to have regard to the actual use made by the
public, whether by right or otherwise, as well as simply to their rights to
attend certain functions. It seems that the public visited County Hall in large
numbers principally because it was being used for the purpose of governing
London, at least in terms of various strategic functions, and governing with
elected members responsible to the public. The evidence indicates that they
came to see members or officers on a range of matters: education, highways,
certain housing matters, etc.
2.91. This
fact of the extensive public use of and access to these buildings is in itself
important, as is the use that has been made of parts of the buildings for
public meetings of voluntary and local organisations. But it also seems to me
that it gives an indication that the primary use of these buildings was and
indeed is different from that of a conventional office. I conclude that the
main purpose of the use has been a governmental one, albeit confined to London,
but with the distinct characteristics of an elected government use: such a use
has characteristics of public debate and decision making, administering
services, responding to queries from the public, together with a range of other
public and ceremonial activities. The fact that Parliament
by such a body as occupied and occupies this Complex and to inspect certain of
its documents is a recognition of the fact that such bodies have a different
role to perform from that of other organisations. That in turn reflects in the
character and purpose of the use to which these buildings have been put.
Finally, in
para 2.92, the inspector says:
There is no
doubt that use of the Complex or any part of it as offices unrelated to local
government would involve a change of use, and I conclude that as a matter of
fact and degree such a change would be material.
The
Secretary of State’s decision letter
The relevant
part of the Secretary of State’s decision letter reads thus:
The Secretary
of State notes that much of the floor space is used for office type activities.
However he accepts the Inspector’s view that the primary use of the building
was for the exercise of local government statutory functions. The distinct
characteristics of these functions is sufficiently different from commercial
office use to support the conclusion that the present or last use of the
planning unit should properly be regarded as sui generis.
In the next
paragraph, the Secretary of State accordingly accepted the inspector’s
conclusion that the use did not come within the relevant provisions of the Use
Classes Order and continued that he accepted
the
Inspector’s view that, as a matter of fact and degree, the proposed use of the
whole of all or any of the buildings in the complex for office purposes,
unrelated to any local government statutory function, would involve a material
change in the use of the land
and would thus
constitute development for which planning permission is required.
For reasons
which I do not think it necessary to state, I have no doubt that in the main
the Secretary of State was adopting his inspector’s report and reasoning upon
this part of the case. On that basis, Mr Carnwath in his most able argument for
the LRB challenges the Secretary of State’s decision on essentially two broad
bases: first, he submits that the inspector himself can be seen to have erred
in law and, second, he contends in the alternative that, even if the inspector
did not err in law, the Secretary of State himself can be seen to have done so.
Before considering these arguments in turn, it is convenient to relate briefly
what all parties before the court agree to be the correct approach in law to
the issue whether or not some particular change of use would be material.
A number of
authorities were cited: Westminster City Council v British Waterways
Board [1985] AC 676, Westminster City Council v Great Portland
Estates plc [1985] AC 661, Lewis v Secretary of State for the
Environment (1971) 23 P&CR 125 and Snook v Secretary of State
for the Environment (1977) 33 P&CR 1.
These plainly
establish that what has to be considered is the character of the use of the
land, that is to say, the character of the activities carried on upon it. The
following are therefore irrelevant in determining what the use was or may
become: (a) the identity of the occupier or person who carries on the
activities; (b) the particular purpose why he carries on those activities; (c)
the ownership or source of supply of any materials employed in those
activities; (d) the destination elsewhere of the products of those activities;
and (e) activities elsewhere even if related to activities on the land in
question.
Although,
however, all those matters are irrelevant in themselves, it may well be that
some at least are capable of illuminating the character of the activities
undertaken on the land. This, I have no doubt, is what the inspector
was referring to at the end of para 2.83, when he said: ‘The identity of the
occupier may in some cases be connected with the nature of the activities
carried on and therefore with the character of the use itself.’ The point is brought home in the last two sentences
of para 2.91 already quoted.
The essence of
Mr Carnwath’s argument is really this. There is no such use known to the law or
capable of recognition in planning law as ‘use for the exercise of local
government statutory functions’ or indeed London governmental use or any such
use however described. The very conclusion that this is the present use
of the site betrays, submits Mr Carnwath, that the inspector and the Secretary
of State have both fallen into the error of determining the use of the site by
reference to the subjective purpose of the activities being pursued on it
rather than, as is clearly the correct approach, by reference to an objective
determination of the real character of the activities themselves.
True, Mr
Carnwath recognises, the inspector from time to time in his report clearly
directs himself correctly upon the required approach: where, for instance, he
uses the language of ‘the character of the use’ and ‘the nature of the
activities which went on’. But, the argument runs, it is plain that he
nevertheless from time to time slips into an erroneous subjective ‘purpose’
test, this being evident if not from the express language of the report, then
at least from its intrinsically wrong approach.
This is said
to be demonstrable from the first sentence of para 2.88, where the inspector
reaches what Mr Carnwath submits ought to have been the decisive conclusion
that ‘undoubtedly the overall use of the Complex can be characterised as an
administrative one’, the very hallmark of office use. But then, having answered
the only real question, he strays into what are suggested to be essentially
unhelpful and misleading other areas which cannot in truth affect the essential
character of the use of the site. In particular, it is submitted that he errs
first in suggesting that there can be any relevance in the fact that the use
was by a ‘democratically elected body’, and then again in suggesting that the
‘more conventional office activities . . . were really there because the
decision making process required servicing by officers’. All offices, Mr
Carnwath submits, are bound to be related to a decision-making process and it
is unhelpful to ask which services the other. It distracts from the central
question: what is the complex as a whole doing?
Similarly, it
is wrong to compare the use with that of a ‘conventional office’, as the
inspector does in paras 2.89 and 2.91. Once the essential use is recognised to
be that of administration, that must necessarily be an office use, however
unconventional may be the underlying purposes for which it is carried on.
In support of
these submissions is cited Shephard v Buckinghamshire County Council
(1966) 18 P&CR 419. Goff J (as he then was) was there concerned with an
application by a landowner for a declaration that a particular use of land did
not constitute development. This required him to determine whether the previous
use had been as offices. That previous use was by the United States Air Force
as a signals unit, the basement rooms being used primarily for the receipt of
secret telecommunications and the operations carried out on the premises
involving office and administrative functions in connection with military
purposes. Many of the rooms were used as offices, but there were also a lecture
room, a conference room and some sleeping accommodation for airforce personnel.
Goff J
directed himself ‘that one must look at the unit as a whole and see what is the
predominant nature of the user’ — clearly the correct approach. He finally came
‘to the conclusion that I must treat this as an administrative
relevant concept being there, as here, ‘use as an office for any purpose’. Mr
Carnwath invokes that decision to two ends, first, as helpfully illustrating
the correct approach to the determination of a use, namely, to find ‘the
predominant nature of the user’ and, second, to establish that, however
unconventional may be the purpose of the activity, once the use is treated ‘as
an administrative unit of some kind’, the conclusion that there was an office
use must follow.
I reject all
these arguments. In my judgment, there is no basis for concluding that this
able and experienced inspector in truth confused the question of subjective
motives or intentions (that is, the occupiers’ underlying purpose) with what
was the objective character of that use, the crucial question for his
consideration. In so far as the inspector uses in his report the language of
‘principal purpose of the use’ or ‘primary purpose of the use’, to my mind he
is doing so perfectly properly and indicating no more than a search for the
true objective nature of the use. I further reject the contention that, having
expressed a view that ‘undoubtedly the overall use of the complex can be
characterised as an administrative one’, the inspector was thereby bound to
conclude that this was an office use, or that Shephard’s case is
authority for any such proposition. In my judgment, the inspector was well
entitled to regard that observation merely as a step en route to consideration
of the ultimate question whether or no there were sufficient and sufficiently
material non-office characteristics of the use to make the use as a whole
something different.
In paras
2.89-2.91 the inspector focused on a number of physical characteristics of the
complex which, as he indicated, both intrinsically and together with their
inevitable impact upon the character of the day-to-day use of the site and the
extent of public participation in that use, enabled him to conclude as a matter
of objective planning judgment that this complex had a distinctive use not
properly to be described as office use, the office activity being merely
ancillary to this other use.
In short, I
have no doubt that the singular features of County Hall, and in particular of
the main building, both as to its physical construction and, yet more
particularly, as to its precise use, were well able to justify the conclusion
that the complex had a London governmental use. This approach seems to me
wholly consistent with authority; for instance, Panayi v Secretary of
State for the Environment (1985) 50 P&CR 109, where the Secretary of
State was held to have been entitled to conclude that there could be a material
change of use when a building containing four self-contained flats became,
without any structural alteration, a hostel for homeless persons. That change,
observed Kennedy J,
could give
rise to important planning considerations and could affect, for example, the
residential character of the area, strain the welfare services, reduce the
stock of private accommodation available for renting and so forth. The fact
that, in the broadest sense, the property continued to be used for residential
purposes does not mean that there could not have been a material change of use.
In my judgment,
it is plain that if such considerations as those can produce a material change
of (residential) use, so too can the readily more striking considerations in
this case justify a decision that the use of County Hall is not as an office,
but is rather sui generis.
I turn,
therefore, to the Secretary of State’s decision letter, which Mr Carnwath
submits introduces two new phrases into the reasoning underlying the decision
such as to indicate a wrong approach in law at least by the
statutory functions’. That, the argument goes, of itself shows that the
Secretary of State had regard to the type of occupant and the underlying
purpose of the use rather than to the predominant nature of the use itself. I
disagree. It seems to me perfectly plain that in that passage the Secretary of
State was doing no more than use his own descriptive label for the sui
generis use which, accepting the inspector’s view as expressly he did, he
found to exist on the site. The second fresh term introduced by the Secretary
of State was that of ‘commercial office use’ in the sentence contrasting use
for local government statutory functions with office use. The inspector had
spoken of ‘conventional’ office use. As I have stated, Mr Carnwath complains
even of that. But even if that phrase does not betray an erroneous approach,
then, the submission runs, assuredly ‘commercial’ office use does.
It cannot
possibly be right to rule out of office use all premises devoted to other than
commercial ends: Lewis v Secretary of State for the Environment
and Shephard v Buckinghamshire County Council are ample authority
for that. This seems to me to be the high point of Mr Carnwath’s challenge. But
I conclude that it does not succeed. Infelicitous though I regard the phrase to
be, I have not the least doubt that, in the context of the decision as a whole,
the Secretary of State was doing no more than characterising in loose language
the concept of generally recognised office use (assuming, indeed, that this was
not merely a careless, perhaps even typographical, error).
I come finally
to Mr Carnwath’s contention that neither the inspector nor the Secretary of
State gave any reason whatever for their final conclusion that future use of
the site for offices unrelated to London governmental use would involve a
material change in use. In my judgment, on the facts of this particular case,
that further question was in reality already determined by the conclusion
arrived at on the main part of the appeal. The inspector’s whole process of
reasoning in reaching the view that the primary use was London governmental use
entailed the necessary conclusion that office use is materially different,
because the reasoning involved above all a contrast between those two separate
uses. Given that it is necessarily implicit in the Use Classes Order itself
that change from one office use to another may well involve a material change
of use (and would thus require planning permission but for the provisions of section
22(2)(f) and the Use Classes Order), it is surely inconceivable in a
case such as this that the inspector and Secretary of State, having found
differences in the character of the use sufficiently significant to preclude
the categorisation of the present use as offices, could conclude other than
that a change to office use would indeed be material.
That, then,
disposes of the section 247 appeal: it fails.
The
section 245 application
I turn now to
the section 245 applications made by LBL, ILEA, LFCDA and LWRA, whom together I
shall refer to as the opposing authorities. There being inevitably a good deal
of overlap between the grounds and arguments of these various authorities, I
propose to deal with them compendiously, although to a limited extent the differences
between them are relevant. Cumulatively they advance essentially four distinct
grounds of challenge to the Secretary of State’s decision, contrary to his
inspector’s recommendation, to grant planning permission for office use of the
Main Block. It is only the Main Block which is in question on this part of the
case: the Secretary of State accepted the inspector’s recommendation that
planning permission for office use should be granted for the various other
blocks within the County Hall complex. The dispute concerns the Secretary of
State’s decision to reject his inspector’s recommendation that there should be
no office use permission for
need to retain it for London governmental use.
The four
grounds may be summarised crudely as follows: (i) an alleged breach of rule 12
of the Inquiries Procedure Rules 1974, a ground dependent upon the Secretary of
State’s having differed from the inspector on a finding of fact; (ii) a Wednesbury
challenge on the basis of irrationality; (iii) a failure in arriving at the
decision to apply the relevant test, despite having correctly identified it;
and (iv) a reasons challenge.
Before I
consider these grounds in detail, it is once again necessary, burdensome though
this be to the judgment as a whole, to recite a good deal from the inspector’s
report as well as the relevant passages from the decision letter.
The
inspector’s report
In paras 4.1
and 4.2 the inspector quoted the well-established principle of planning law now
enshrined in Circular 14/85 as follows:
There is
therefore always a presumption in favour of allowing applications for
development, having regard to all material considerations, unless that
development would cause demonstrable harm to interests of acknowledged
importance.
In para 4.2 he
continued thus:
If there is a
need for a particular proposed development or if there are planning benefits
which would derive from it, those would be relevant and may outweigh any
planning objection that has been made out to the proposal, but unless a valid
planning objection has been established there is no burden upon an applicant to
demonstrate need or planning benefits.
In para 4.7
the inspector identified the determining planning issues to include the
following: ‘(i) whether there is a valid objection on office policy grounds to
the office proposals’ and he readily concluded there was not; ‘(ii) whether and
to what extent there is a need for office development in this area . . . (ix)
whether there is an over-riding need to preserve the existing local
governmental use of the complex or any part of it’.
As to the
second of those issues, the inspector’s conclusions were set out in para 4.14
of his report as follows:
The Local
Planning Authority produced convincing evidence that the demand for office
floorspace currently in the WDP area is not strong. I do not set great store by
the findings arrived at on past appeals in the area, because the most recent of
those is now some two and a half years old and conditions in the office market
in London can change radically over that time span. But the evidence of
unimplemented permissions and vacant buildings suggests that the office market
in this area is fairly slack. Moreover, it was acknowledged by Mr Eve for the
LRB that most office occupiers prefer new office floorspace to conversions. It
is proper to consider the office market not purely in terms of demand in some
unspecific way but in relation to types of floorspace. Richard Ellis and
Partners have advised the LRB that the Main Building is incapable of sufficient
adaptation or refurbishment so as to be suitable for an efficient office
occupier, and that the North and South Blocks would not be regarded as prime
office properties. All of this leads me to conclude that, while the Island
Building might let without much difficulty as office floorspace, the need and
demand for office floorspace of the kind which the rest of the Complex would
provide in this part of London is slight. As I have already indicated, this is
not to be seen as an objection as such to the proposals, but it will be
relevant if there are valid planning objections to them.
Having then
considered a number of other issues, determinative of additional applications
not the subject of the challenges now before the court,
In para 4.75 he noted:
the main
thrust of the submissions . . . that there is an existing need to retain County
Hall or some part of it in local government type use to meet the requirements
of a number of bodies which are providing local government services for London
as a whole, usually as successor bodies to the GLC. This then is an argument as
to an existing need to retain a use, which is said to outweigh the proposed
uses.
In para 4.76
he summarised the relevant legal principles as follows:
There is no
doubt that the retention of an existing use is capable of being a material
planning consideration and may be sufficient to warrant refusal of an application.
This the LRB conceded, and it is in any event well established by authority.
Cases such as Clyde & Co v Secretary of State for the Environment
[1977] 1 WLR 926 have made it clear that the desirability of preserving an
existing use may be a material planning consideration when a proposal is made
to change that use. That Court of Appeal decision was broadly endorsed by the
House of Lords in Westminster City Council v British Waterways Board
[1985] 1 AC 676. The test applied in such cases appears to be two-fold: first,
one has to determine whether the need for and desirability of preserving the
existing use outweighs on its planning merits the need for and desirability of
the proposed new use or uses. Secondly, as was emphasised by Lord Bridge in the
latter case, for an objection along these lines to succeed it has to be shown
that on the balance of probability if permission is refused for the proposed
use or uses, the land in dispute will be effectively put to the existing use.
As will
shortly appear, that second limb of the test presented no problem in this case.
In para 4.79
the inspector observed that ‘The degree of need to preserve County Hall in its
existing use can only be assessed by examining the position and requirements of
bodies such as ILEA, the LFCDA, the LWRA and others.’
From the four
pages of the report which deal in great detail with ILEA’s position and
requirements I take the following conclusions:
4.81. There
is no doubt on the evidence which I heard that its [ILEA’s] responsibilities
are very extensive and complex . . . it is clear . . . that Parliament intended
that [it] . . . should discharge its functions ‘economically, efficiently and
effectively’. I have no doubt that in order to be able to achieve those
objectives, it is necessary for a body such as ILEA to be located centrally and
with access to good public transport.
4.82. I
accept that the great bulk of the supporting accommodation for the officers of
ILEA ought to be located in close proximity to wherever the decision-making
processes by members are conducted. Any other arrangement would lead to
inefficiency . . .
4.90. . . .
If ILEA’s requirements are to be met in a reasonably modern building other than
County Hall, it requires approximately 600,000 square feet of net lettable
floorspace, preferably in a single building. It is also clear that such a
building should either possess already the specialised features required by a
large local authority such as ILEA, for example a debating chamber, with public
gallery, committee rooms, etc, or be capable of adaptation at reasonable cost.
It is also necessary that such a building be located centrally within London
and have good access by public transport. The evidence indicates that no such
building currently exists or is likely to exist in the near future. Whether or
not one might become available through the workings of the market or through
the carrying out of development elsewhere is impossible to predict. No reliance
can be placed on such possibilities to meet ILEA’s needs.
4.91 In contrast, the Main Building of County Hall
would provide all the accommodation and facilities required by ILEA. As many
objectors pointed out, the building was purpose-designed and purpose-built for
use by such a body, that is to say, an elected local authority with public
decision making meetings plus a ‘civil service’. It seems to have all the
attributes required by ILEA. In fact, it has rather more space than ILEA would
require, although perhaps not as much as might appear at first sight . . . .
In para 4.92
the inspector turned to deal with the needs of the LFCDA, ‘another of these
local authorities for the purpose of the legislation which imposes a duty to
provide for public access to meetings and documents’. He concluded:
that the
LFCDA does have a need to use the facilities provided at County Hall, although
the degree of need is less extreme than in the case of ILEA. In terms of the
other accommodation required, the LFCDA currently occupies about 10,000 square
feet at County Hall, and if the authority was to continue to meet there then it
would seem necessary for a similar amount of accommodation to be provided for
them.
The needs of
LWRA were considered in the following three paragraphs. The inspector noted
that it, too, is a local authority with decision-making by indirectly elected
members and with public rights of access to meetings and documents. It occupies
about 12,500 sq ft of space. It, too, needs to be accommodated in Central
London, in a place enjoying good communications and chamber-type facilities.
The inspector observed that ‘while it would not be impossible to find some
alternative premises that could be adapted to meet the requirements of this
authority, it would be difficult and the resulting accommodation would be
likely to be deficient in certain respects.’
He concluded ‘that the LWRA has a need for accommodation of the type
currently available at County Hall, though once again the degree of need is not
as acute as that of ILEA.’
The next
paragraph reads:
4.96. There
are a number of other bodies providing London-wide services which might be
accommodated with greater efficiency within County Hall. Many such bodies need
to consult and liaise with one another, so that there are advantages in such a
shared location. ILEA, the LFCDA and the LWRA are amongst the organisations
which need to co-ordinate their activities and for which common support
facilities, such as catering facilities, are advantageous.
I must now
relate in their entirety paras 4.101 to 4.103 as follows:
4.101 Despite the abolition of the GLC, there
continue to exist a number of London-wide services provided by successor bodies
to the GLC. Such services include education, fire and civil defence, and waste
regulation, but are not confined to those. A number of these successor bodies,
significant in terms of their accommodation requirements, operate through
decision-making by directly or indirectly elected councillors, meeting in
sub-committees, committees and full Authorities. For that purpose they require
debating chambers and committee rooms with suitable arrangements for officers
and press to attend, as well as space for members of the public who have a
statutory right to attend such meetings. Such organisations need accommodation
for officers nearby to provide support services for the members. They need to
be centrally located. There are advantages in such bodies being located in the
same building or at least in reasonable proximity to one another. This promotes
their efficient operation, facilitating the necessary liaison between them and
enabling common services to be provided, all of which is to the benefit of the
general public of London.
4.102 Not only is the Main Building at County Hall
purpose-designed and purpose-built for such functions, but there is no other
accommodation
Building is eminently suitable to meet these identified requirements.
4.103 The need to retain such an existing use does
not extend beyond the space which can be provided by the Main Building. It is
not a need which amounts to an objection to the change of use of any other
building. The requirements of the principal bodies which have a need for such
accommodation would not quite take up the totality of the floorspace in County
Hall’s Main Building, but that does not rob this objection of its force. One
cannot expect mathematical exactitude between the space provided and the space
required: it is enough that there is an overriding need for the great bulk of
the space in the Main Building to be occupied for the existing use and there
seems little doubt that in practice the remaining limited amount of
accommodation would readily be taken up for that use by some of the other
bodies providing London-wide services. I conclude therefore that there is a
valid planning objection to the proposed changes of use of the Main Building
because of the need to retain the existing use of that building for
London-governmental activities. There is no such valid planning objection to
the proposed changes of use of any of the other buildings within the appeals
site.
From the final
summary of the inspector’s conclusions I must quote two further paragraphs, as
follows:
5.1.9 There is a compelling need to retain the
existing London governmental use of the Main Building of County Hall. There
continue to be a number of London-wide services provided by successor bodies to
the GLC, including ILEA, LFCDA and LWRA, and such bodies have special
accommodation requirements such as debating chambers, committee rooms and
nearby officer accommodation, for which the Main Building of County Hall is
admirably suited. Such bodies need the type of accommodation described in a
Central London location, and no other reasonably suitable accommodation to meet
their requirements exists. This need to retain the existing use applies to the
Main Building of County Hall and is a serious objection to the proposed changes
of use of that building. The need, however, does not exist on a scale which
requires the preservation of the existing use of any of the other buildings at
County Hall. No objection on these grounds can therefore be sustained to any of
the proposals other than those in respect of the Main Building.
5.6 The issue therefore on the proposal to change
the use of the Main Building to an office use is one of competing needs. Not
only was there no evidence of any significant need for more office floorspace
in this locality, but the LRB’s own advisers have cast doubt on the suitability
of this building for providing efficient floorspace. It seems quite clear that
the need to continue the existing use of the building outweighs any need to put
it to an office use, and I so conclude . . . .
The
Secretary of State’s decision letter
In the section
of the letter headed ‘Need to preserve the existing use’, the Secretary of
State first recited verbatim the two-fold test which the inspector had set out
in para 4.76 of his report. As to the latter test — that on the balance of
probability if permission is refused for the proposed use or uses, the land in
question will be effectively put to the existing use — the Secretary of State
noted (and apparently accepted) ‘the Inspector’s advice [in para 4.103] that,
if planning permission were refused, the space in County Hall could be taken up
by bodies such as ILEA, the LFCDA and LWRA’. That particular reference to
County Hall was plainly intended to denote the Main Building only. No more need
be said on that aspect of the matter.
The decision
letter then continued crucially:
1. The test
as to whether in planning terms the desirability of preserving the existing use
outweighs the merits of the proposed new uses is clearly a matter of judgment
and balance. In making his assessment the Inspector has drawn
debating chambers, committee rooms and space for associated support services
and to the desirability of a central location.
2. Whilst the
Secretary of State agrees that organisations such as those referred to by the
Inspector will require meeting rooms and other such accommodation he does not
accept that this need be of the scale and character of that existing at County
Hall. The Greater London Council was a London-wide authority with a broad range
of responsibilities, many of which have now been transferred to the boroughs or
other bodies which are not located in County Hall. The functions of those
bodies currently in County Hall are far more restricted than were those of the
GLC geographically or in terms of their duties. Moreover they do not
necessarily bear a close relationship to each other. The location of such
bodies in the same building might be convenient, in that certain facilities may
be shared, but it is quite feasible for each body to make its own separate
arrangements.
3.
Furthermore, whilst the Main Building of County Hall may be well suited to the
accommodation needs of ILEA and other successor bodies to the GLC the Secretary
of State does not accept that it represents the only solution. In reaching this
view the Secretary of State has had regard to the evidence presented at the
inquiry by ILEA (including the letter to Sir Godfrey Taylor, LRB, dated 13th
March, 1987) regarding alternative premises under consideration. It seems clear
that, given the range of buildings and sites then under consideration, there
are properties which may not be tailor-made to meet a local government use but
could nevertheless be adapted.
4. To
summarise the Secretary of State agrees with the Inspector that the retention
of an existing use is capable of being a material planning consideration. He
also accepts that the accommodation of ILEA and other bodies in County Hall may
meet their requirements satisfactorily but, on the evidence, the Secretary of
State does not consider it to be the only means of meeting those requirements.
He therefore disagrees with the Inspector’s conclusion that there is an
overriding need for the Main Building to continue in its existing use.
(Those four
paragraphs I have numbered 1-4 for convenience, although they are not numbered
in the letter.)
In the next
section of his letter headed ‘Office Use’ the Secretary of State recited the
presumption from Circular 14/85. He then noted the inspector’s opinion that the
need and demand for office floorspace which the complex, including the Island
Building, would provide is slight, and continued: ‘However he takes the view
that the question of need and demand is a matter to be determined by the market
and is anyway difficult to assess for a unique building such as this.
Accordingly it is not a matter to which he attaches any great weight in the
context of these appeals.’
I omit the
next paragraph, which goes merely to the absence of other planning objections.
The final relevant paragraph runs thus:
For the
reasons set out earlier the Secretary of State does not agree with the
Inspector that the advantage of retaining the Main Building for local
government activities is an overriding consideration and that office use should
be refused on those grounds. In his judgment such considerations on their own
are not of sufficient weight to result in refusal of the applications for
offices in an area and in a building suitable for such use. He accordingly
considers that planning permission for office use is justified.
I turn to deal
with the four main grounds of challenge.
1. The
alleged breach of rule 12
Rule 12, so
far as relevant, provides:
(2) Where the Secretary of State — (a)
differs from the appointed person on a finding of fact . . . and by reason
thereof is disposed to disagree with a
which is at variance with any such recommendation without first notifying the
applicant, the local planning authority and any section 29 party who appeared
at the inquiry of his disagreement and the reasons for it and affording them an
opportunity of making representations in writing within 21 days . . . .
To found a successful
ground of challenge, not only must the opposing authorities establish a breach
of rule 12 but they must also establish ‘that the interests of the applicant
have been substantially prejudiced by a failure to comply with . . . the
relevant requirements’, as provided for by section 245(4)(b) of the 1971
Act.
The main
arguments upon this ground of challenge concern the extent to which the
Secretary of State differed from his inspector on findings of fact. To decide
this, it is necessary to determine first in what precise regard the Secretary
of State disagreed with his inspector and, second, whether that disagreement
was properly to be regarded as a difference upon a finding of fact. While the
objecting authorities submit that there are a number of separate findings by
the inspector with which the Secretary of State has disagreed, Mr Laws, for the
Secretary of State, supported in this by Mr Carnwath, submits that there is but
a single expressed disagreement, namely, ‘with the Inspector’s conclusion that
there is an overriding need for the main building to continue in its existing
use’, as related in para 4 of the letter. This disagreement is then repeated in
the ‘Office Use’ section of the letter thus: ‘For the reasons set out earlier
the Secretary of State does not agree with the Inspector that the advantage of
retaining the main building for local government activities is an overriding
consideration and that office use should be refused on those grounds.’
I accept Mr
Laws’ submission in this regard. Attracted though at first I was by Mr
Fitzgerald’s and Mr Barnes’ submissions that the Secretary of State in paras 2
and 3 was disagreeing with other of the inspector’s findings of fact, closer
analysis persuades me that it is not so. Where in para 2 the Secretary of State
‘does not accept that this (the relevant organisations’ requirements for
meeting rooms and other such accommodation) need be of the scale and character
of that existing at County Hall’, I conclude that Mr Laws is right in his
contention that (assuming, as Mr Barnes asserts, this reference to County Hall
was, as in the earlier passage I have mentioned, intended to denote solely the
Main Building), the Secretary of State was doing no more than point out that
the objecting authorities’ functions were far more restricted than the old GLC,
so that they did not need public rooms of the scale and character of those
contained within the principal floor of the Main Building. The inspector never
concluded to the contrary. Once it is recognised that this passage says nothing
about ILEA’s requirements of approximately 600,000 sq ft of floorspace and so
forth, the objectors’ point dissolves. Similarly, I reject the objecting
authorities’ submissions that the inspector ever found as a fact that it is not
‘quite feasible for each body to make its own separate arrangements’, or that
‘the only solution’ to the objecting authorities’ needs is to accommodate them
within the Main Building at County Hall.
Was, then, the
single identified disagreement between the Secretary of State and his inspector
a disagreement upon a finding of fact or was it, as Mr Laws submits, rather a
disagreement upon an expression of opinion, essentially a matter of
judgment? This is the antithesis recognised
by the Court of Appeal in the well-known case of Lord Luke of Pavenham v
Minister of Housing and Local Government [1968] 1 QB 172. Albeit this
approach is often easier to state than to apply, I have no doubt that Mr Laws
is right also in this regard; as he submits, the very concept of overriding
need implies an exercise of
different considerations. There is no reason to conclude from the language of
the decision letter that the Secretary of State disagreed with his inspector
upon any matter of primary fact or upon the inferences to be drawn from such
facts, or indeed upon the relevance of the considerations in play. Rather the
Secretary of State at the end of the day was merely expressing a different
overall preference to his inspector: unlike his inspector, to avoid a refusal
of planning permission, he was prepared to put up with all the difficulties,
disadvantages and deficiencies which he clearly understood the objecting
authorities would experience in meeting their requirements otherwise than in
the Main Building of County Hall.
But it must be
recognised, and this becomes of considerable relevance in regard to other
grounds of challenge, that Mr Laws’ submission, and my decision, that the only
one of the inspector’s conclusions with which the Secretary of State disagreed
was upon the final question of judgment as to the ‘overriding need for the Main
Building to continue in its existing use’, inevitably carries with it these
consequences: first, that the Secretary of State must be taken to have accepted
all the inspector’s conclusions (a) about the manifest advantages of the
objecting bodies using the Main Building in the future because of the
inevitable problems that must result from their being unable to so do, and (b)
as to there being no need or even desirability for future office use of the
Main Building; and, second, that the Secretary of State must be taken to have
decided that the general presumption set out in the circular should
nevertheless prevail; in other words, that he was not prepared to treat it as
overridden unless it was shown that the requirements of the objecting
authorities (which he recognised to exist) could ‘only’ be met in the Main
Building and not elsewhere.
It follows
from what I have already said that, in my judgment, there was here no breach of
rule 12. It is, therefore, unnecessary to express any concluded view upon the
issue whether or not any relevant applicant suffered substantial prejudice.
Such prejudice would have had to be established by LBL, no other objecting
authority being a section 29 party or otherwise falling within the protection
of rule 12. Given, however, as is plain from the inspector’s report, that all
these authorities were running their cases in harness, had the Secretary of
State told LBL ‘of his disagreement and the reasons for it’, LBL would, in my
judgment, inevitably have notified the other objecting authorities. Thus each
would have had the opportunity of seeking afresh to persuade the Secretary of
State to their view. Accordingly, I am inclined to accept that substantial
prejudice would have been established. There being some intelligible prospect
that the LBL would have benefited from compliance with the rule, such
prospective benefit is indeed surely implicit in the very existence of the
rule.
To the extent
that Mr Laws argued to the contrary, on the footing that the objecting
authorities had not only enjoyed but had taken the fullest opportunity already
to put their case on the facts in detail, I am inclined to regard that
submission as underlining the correctness of my earlier conclusion that in
truth the Secretary of State here is not to be taken to have disagreed with his
inspector on anything that can properly be regarded within rule 12 as a finding
of fact in the first place. I turn, therefore, to the next ground of challenge.
2.
Irrationality
I can take this
very shortly. Mr Hobson submits that given the inspector’s clear conclusions
and recommendations refined from an impeccable analysis of the facts, it was
wholly unreasonable for the Secretary of State to reject them. The
submission can perhaps be put at its strongest — although I am not sure that it
was put quite this way — by direct reference to the language of the presumption
as set out in the circular. For the Secretary of State to decide that this
presumption should prevail, he must have concluded that loss of the existing
use would not ’cause demonstrable harm to interests of acknowledged
importance’. Thus the Secretary of State must have decided that the need to
adapt and make do with whatever accommodation became available to the opposing
authorities, although plainly short of the ideal represented by County Hall,
would not harm their interests, the importance of which I have not the least
doubt that he acknowledges.
Certainly this
might at first blush be thought a somewhat surprising conclusion. Given,
however, the acknowledged high political content of the judgments to be made in
this case, not least as to the difficulties and disadvantages to be regarded as
reasonable and acceptable in the way of relocating and accommodating bodies
such as ILEA, it seems to me impossible to categorise the Secretary of State’s
decision as irrational, that is, ‘so outrageous in its defiance of logic or of
accepted moral standards that no sensible person who had applied his mind to
the question to be decided could have arrived at it’: see Lord Diplock’s speech
in Council for the Civil Service Unions v Minister for the Civil
Service [1985] 1 AC 374 at p 410. That said, one cannot but be struck by
the strength and cogency of the inspector’s conclusions in this case and the
narrowness of the Secretary of State’s contrary judgment: that the bare
presumption in favour of planning permission should prevail unless preservation
of the existing use alone could meet the requirements of the relevant bodies.
On any view, such a judgment postulates a very great weight in favour of the
presumption and very little weight in favour of the benefits of retaining the
Main Building for use by the opposing authorities, there being no demonstrable
need for the proposed new office use. As I have already said, this
consideration is of some importance when it comes to determining later grounds
of challenge.
3. Failure
to apply the relevant test
As I have
already related, the test extracted from the authorities by the inspector and
repeated by the Secretary of State was as follows: ‘One has to determine
whether the need for and desirability of preserving the existing use outweighs
on its planning merits the need for and desirability of the proposed new use or
uses.’
The Secretary
of State then, when remarking in para 1 that it is ‘clearly a matter of
judgment and balance’, restates it thus: ‘Whether in planning terms the
desirability of preserving the existing use outweighs the merits of the
proposed new uses.’ It is this test
which he then purports to apply.
The argument
advanced in the main by Mr Fitzgerald for ILEA that, having correctly
identified the test, the Secretary of State then failed to apply it, involves
two separate contentions: first, that it was the correct test and, second, that
it was not then applied. I take these in the reverse order.
The stated
test involves weighing two competing needs, one against the other: that of the
opposing authorities to be housed in future in the Main Building of County Hall
on the one hand and that, if any, for such building to be used in future as
offices on the other. By ‘need’ I refer also to the desirability of retaining
the building for the authorities’ future use or of changing it to office use.
Need obviously shades into desirability as part of a spectrum of benefit. At
one end is absolute need, a total impossibility for the authorities to continue
at all if the Main Building be lost to them. At the other end is such manifest
advantages in retaining the building for their use as to constitute at least
plain desirability. That such desirability, short of need, is
permission for a change of use is clear from the decisions in Clyde & Co
v Secretary of State for the Environment and Westminster City Council
v British Waterways Board, to which the inspector referred in para 4.76
of his report. The judgments in both cases, indeed, use the language of
desirability rather than need.
In the instant
case there was clearly no doubting that, even if it were not in the fullest
sense necessary for the authorities to be accommodated in the Main Building in
future, this was at the very least desirable. Thus there was some weight to be
placed in that scale. Equally there was no doubting but that neither need nor
desirability was demonstrated in favour of a future office use. As the
Secretary of State said: ‘The question of need and demand is a matter to be
determined by the market and is any way difficult to assess for a unique
building such as this’. Thus there was no weight whatever to be put in the
opposing scale. True, the Secretary of State observed, after the passage just
cited, ‘accordingly it is not a matter to which he attaches any great weight in
the context of these appeals’. But it neither is nor could be suggested that
the Secretary of State was thereby indicating that he attached any weight at
all to this consideration. To have done so, moreover, would, in my judgment,
have involved a clear and fatal further disagreement with the inspector.
All this,
indeed, is accepted by Mr Laws. What he contends is not that the Secretary of
State found merit in the proposed office use in the sense of need or even
desirability for this, but rather, as I have earlier endeavoured to indicate,
that he found the merits of retention insufficient to outweigh the presumption,
namely, the general presumption in favour of granting planning permission where
no planning objection arises (save only for the desirability of retaining the
existing use). So far as it goes, Mr Laws’ contention is, in my judgment,
sound. But, to show that the Secretary of State applied the stated test, the
argument has to go further. Mr Laws has to submit that when the Secretary of
State refers to ‘the merits of the proposed new uses’, he should be taken to be
referring, irrespective of whether there be any merits of the proposed new uses
(in contradistinction to an absence of planning objections to them), to the
general presumption. I reject this argument. In my judgment, the test
formulated by the Secretary of State was simply not this. The language used
cannot sustain such a construction. The test formulated was one of respective
merits, competing needs. In saying this, I make plain that I have not
overlooked the wealth of authority upon the proper approach to decision
letters, plainly establishing that they must not be construed as statutes or
contracts, but rather as directed to a well-tutored audience.
I turn,
therefore, to the necessary further limb of this third ground of challenge: the
contention that the Secretary of State erred in not applying this test because
in law it is the correct test. Certainly, as stated, it is the test which the
inspector thought was to be found in the authorities and which the Secretary of
State explicitly adopted although, as I have just indicated, he then failed to
apply it. But is it the correct test? In
my judgment it is not. As formulated, it necessarily implies that provided only
some weight is to be attached to the desirability of retaining the existing use
and provided also there is no weight to be found in the merits of the proposed
new use (because there is no demonstrable need or desirability for them),
planning permission must inevitably be refused. In other words, the test as
formulated involves that the presumption, if unbolstered by any demonstrable
need or desirability for the proposed change of use, is overridden in any case
where there is established some desirability in the preservation of the
existing use.
In my
judgment, this gives insufficient weight to the presumption and
material consideration into a necessarily valid objection. And, indeed, as Mr
Laws points out, the inspector himself, despite formulating the test as he did,
nevertheless throughout his report speaks in terms of a ‘valid planning
objection’ (see paras 4.2 and 4.103) and recognises that the desirability of
preserving the existing London governmental use must be ‘an overriding need’
(see paras 4.7(ix), 4.98 and 4.103). This I understand to refer to the need to
override the presumption rather than to override any merits there may be in the
proposed new uses.
Thus the point
of difference between the inspector and the Secretary of State applies not as
to the correct approach in point of law but rather as to the weight to be
attached to the desirability of retaining the existing use. This the inspector
in para 5.1.9. refers to as ‘a compelling need’ and ‘a serious objection to the
proposed changes of use’. The Secretary of State plainly concluded otherwise.
True, in para 5.6 the inspector finally reverted to the language of ‘competing
needs’ and concluded that ‘it seems quite clear that the need to continue the
existing use of the building outweighs any need to put it to an office use, and
I so conclude’. But if, which I doubt, the inspector was there implying or
intending to suggest that any established need (however slight) for the
retention of the existing use would necessarily be sufficient to outweigh the
presumption then, for the reasons I have already given, I conclude that he was
wrong in law. That, therefore, disposes of the third ground.
4. The reasons
challenge
The duty of the
Secretary of State to give reasons arises under rule 13(1) of the 1974 Inquiry
Procedure Rules. As to the nature of the obligation, the authorities are clear:
see particularly In re Poyser and Mills’ Arbitration [1964] 2 QB 467
and Westminster City Council v Great Portland Estates plc [1985]
1 AC 661 at p 673. In all cases the reasons must be intelligible, proper and
adequate. They can be briefly stated, but they must deal with the substantial
points that have been raised. A decision will be challengeable for breach of
rule 13 only if there is something substantially wrong or inadequate in the
reasons given. Very often this ground is invoked in a last desperate effort to
unseat a decision when all else fails. In my judgment, it is a basis of
challenge which should be advanced sparingly, scrutinised critically and not
readily acceded to. That certainly is the approach to be adopted in the general
run of cases. With those principles in mind, I turn to the present case.
Here, where
the Secretary of State has disagreed with his inspector’s recommendation, the
obligation to give clear and cogent reasons assumes particular importance. This
is both a matter of common-sense and supported by authority: see, for instance,
Rogelan Building Group Ltd v Secretary of State for the Environment
[1981] JPL 506, where Glidewell J said: ‘But where, as here, the Secretary of
State on advice decided to disagree with the recommendation of his inspector,
it was particularly important that he should make his reasons for such
disagreement clear.’
Also relevant
to the extent of the duty in the instant case are these further considerations
which I have already touched upon when dealing with the various other grounds
of challenge: first, the cogency, clarity and comprehensiveness of this very
experienced inspector’s analysis, and the strength of his conclusions and
recommendation; second, the Secretary of State’s acceptance of the inspector’s
conclusions as to the manifest advantages to the objecting authorities of using
the Main Building (albeit the Secretary of State diluted this conclusion from
one of compelling need to something lower in the scale of desirability), and
acceptance also of the
the Main Building to be used in future as offices; and, third, in the result,
the Secretary of State’s perhaps somewhat surprising decision to reject the
inspector’s recommendation.
As I have
already sufficiently indicated, I am finally persuaded by Mr Laws’ arguments
that the basis of the Secretary of State’s decision must necessarily be that he
was not prepared to treat the general presumption in favour of planning
permission as overridden here unless it were shown that the requirements of the
objecting authorities could be met only by retaining the existing use of the
Main Building. The relentless logic of Mr Laws’ analysis leads me inexorably to
this conclusion. The decision is otherwise inexplicable. As it seems to me,
therefore, the great question arising for decision upon this ground of
challenge is this: is that process of reasoning sufficiently apparent from the
decision letter, assuming always a careful, unpedantic and well-tutored reader?
I
unhesitatingly conclude not. The presumption in Circular 14/85 is in essence no
more than a recognition of the long-standing and surely fairly obvious planning
principle that the onus in the first instance lies upon the local planning
authority to justify refusing a landowner permission to do what he wants on his
own land. Given that somewhat restricted role generally played by the
presumption, one would expect the Secretary of State’s approach here of placing
upon it such great weight and reliance as he did to find prominent reflection
in the decision letter. So far from that, however, the Secretary of State has
instead in para 1 indicated the wholly different approach implicit in the
formulated test, the test of competing needs.
The crucial,
indeed decisive, significance of the presumption and the ultimate irrelevance
to the final decision of the approach suggested by the test of competing needs
become apparent only upon deep analysis of the decision letter. Not only do
they not appear from the first few readings of the letter; rather the letter is
couched in terms plainly calculated to mislead the reader as to the approach
adopted and the true basis of the decision. And this in a case where the
Secretary of State has disagreed on the narrowest basis with the inspector’s
closely reasoned recommendation. I accordingly conclude that there exists here
a plain failure to give proper reasons for the decision.
Have the
opposing authorities suffered substantial prejudice as a result of this breach
of the rules? In my judgment, clearly
they have. Not only is prejudice generally to be inferred in such a case (see
in this regard also Rogelan Building Group Ltd v Secretary of State
for the Environment) but it is particularly apparent here. Not least this
is because at the end of the day there must remain lurking doubts as to the
correctness of my underlying conclusions (in favour of the Secretary of State
and the LRB) regarding the earlier grounds of challenge, namely, as to what was
in truth the precise area of disagreement between the Secretary of State and
his inspector and thus what was the real basis of this decision. For instance,
Mr Fitzgerald for ILEA submitted in response to Mr Laws’ analysis that by the
time the Secretary of State came to formulate the competing needs test, a
perfectly proper and sensible test even if one not strictly imposed upon him by
law, he had already considered the circular and should be regarded as having
recognised sufficient merit in retaining the existing use at least to negative
that. In a word, he contends that the test as formulated subsumed the effect of
the presumption. In this event, the test would have had to be applied. It is,
of course, implicit in my rejection of the third ground of challenge that I
disagree with this submission. But there remains the possibility that I am
wrong to do so. And such a possibility should not and would not exist but for
the manifest deficiencies of the reasoning contained within this decision
letter.
It therefore
follows that I uphold this fourth ground of challenge. Thus I quash the
decision letter in so far as it grants planning permission for the use as
offices for any purpose of, first, the entirety of County Hall, including the
Main Block, and, second, the Main Block alone.
The appeal
under section 247 was dismissed. The applications under section 245 were
allowed and the decision of the Secretary of State quashed with half costs
against the London Residuary Body in favour of Lambeth London Borough Council
and ILEA. Leave to appeal granted.
