House in multiple occupation — Application for planning permission for change of use — Whether local authority housing policy a material consideration — Whether local authority seeking to transfer their statutory obligations to private sector
The respondent
applied to the Royal London Borough of Kensington and Chelsea (‘the council’)
for planning permission to change the use of 13 Collier Road, London SW5, from
a house in multiple occupation — containing some 20 bed-sitting-rooms — to
seven self-contained flats. The council failed to determine the application
within the prescribed period and the respondent appealed to the appellant, the
Secretary of State for the Environment, who dismissed the appeal. The view of
the council, namely that there was a need in the area for all types of
housing, including multiple occupation housing for those who required cheap
rented accommodation; and that the conversion into more expensive
self-contained accommodation and the consequent loss of housing of this kind
should be resisted, was accepted by the Secretary of State.
On the
respondent’s application to the High Court the decision of the Secretary of
State was quashed on the ground that it was based on a consideration which
should not have been taken into account, namely the policy of the council. The Secretary
of State appealed.
was allowed.
Material
considerations were those which served a planning purpose and a planning
purpose was one which related to the character of the use of the land. The
proposed change from multi-occupation to self-contained flats amounted to a
change in the character of the use of the land: see p26A-C.
Material
considerations were not confined to strict questions of amenity or
environmental impact and the need for housing in a particular area was a
material consideration within section 70(2) of the Town and Country Planning
Act 1990: see p26F.
There was no
sensible distinction to be drawn between a need for housing generally and a
need for particular types of housing, whether or not the latter could be
defined in terms of cost, tenure or otherwise. In each case the question was
whether, as a matter of planning for the area under consideration, there was a
need for housing which the grant or refusal of the application would affect:
see pp26H-27A.
Furthermore,
there was no evidence that the council, in formulating their policy, were
seeking to transfer and impose upon the private sector their own statutory
obligations with regard to the provision of housing: see p27C.
to in the judgments
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
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; [1985] JPL 102, HL
Westminster
City Council v Great Portland Estates plc [1985]
1 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
Appeal against
decision of Mr Roy Vandermeer QC
This was an
appeal against a decision of Mr Roy Vandermeer QC, sitting as a deputy judge of
the Queen’s Bench Division, who allowed an appeal by the respondent against the
decision of the appellant, the Secretary of State for the Environment, who had
dismissed the respondent’s appeal in respect of the failure of the Royal London
Borough of Kensington and Chelsca Council to determine the respondent’s
application for planning permission.
Drabble and Jonathan Karas (instructed by the Treasury Solicitor) appeared for
the appellant, the Secretary of State for the Environment.
Katkowski (instructed by Bennet Taylor Tyrrell) appeared for the respondent, Mr
Mitchell.
following judgments were delivered.
BALCOMBE
LJ: I will ask Saville LJ to give the first
judgment.
SAVILLE LJ: In this case Mr Mitchell applied to the council of the Royal London
Borough of Kensington and Chelsea for planning permission to change the use of
13 Collier Road, London SW5, from a house in multiple occupation (that is to
say a house containing some 20 bed-sitting-rooms) to seven self-contained
flats.
The council
did not determine this application within the prescribed period and Mr Mitchell
exercised his right under section 78 of the Town and Country Planning Act 1990
to appeal to the Secretary of State for the Environment. By letter dated March
6 1992, the Secretary of State dismissed the appeal and refused to grant
planning permission for this change of use.
It is clear
that the reason for this decision of the Secretary of State was that he
accepted the view of the local authority that there was a need in the area for
all types of housing, including, in particular, multiple occupation housing for
those who require cheap rented accommodation; and that the conversion into more
expensive self-contained accommodation and the consequent loss of housing of this
kind, which met or was capable of meeting Housing Act standards for multiple
occupation, should accordingly be resisted.
The Secretary
of State was satisfied on the balance of probabilities that if planning
permission were refused the house in question would continue to be used for
multiple occupation.
Section 70(2)
of the Town and Country Planning Act 1990 stipulates that in dealing with an
application for planning permission, the local planning authority shall have
regard to the provisions of the development plan so far as material to the
application ‘and to any other material considerations’. By virtue of section
79(4) of the same Act, the Secretary of State must do the same when determining
an appeal.
There was
nothing in the council’s then current development plan which specifically spelt
out the policy of the council to resist the change of use under consideration,
or the reasons for such a policy. It is clear, however, that the Secretary of
State correctly identified the current view and policy of the council and the
reasons for it, which were to be found in a draft unitary development plan
prepared by the council and, indeed, in the written submissions made by the
council on the matter of the application.
The question
which arises is whether the policy of the council was a material consideration
within the meaning of section 70(2) of the Act. Mr Roy Vandermeer QC, sitting
as a deputy High Court judge, concluded that this was not the case and quashed
the decision of the Secretary of State on the ground that that decision was
based on a
State now appeals to this court.
It is common
ground between the parties, as I understand it, that material considerations
are those which serve a planning purpose and that a planning purpose is one
which relates to the character of the use of land: see in particular the speech
of Lord Scarman in Westminster City Council v Great Portland Estates
plc [1985] 1 AC 661 at p670.
As will be
seen from the immediately preceding paragraphs of that speech, the same
considerations apply to the question whether there would be a material change
in the use of any buildings so as to make any such change a development within
the meaning of section 55, thus requiring planning permission under section 57.
In other words, a change in the use of a building which did not relate to the
character of the use of the land would not require planning permission, unless,
of course, it also involved other factors which amounted to development under
section 55.
It is accepted
on behalf of Mr Mitchell that the proposed change from multi-occupation to
self-contained flats amounts to a material change in the use of the building in
question, that is to say that such a change is a change in the character of the
use of the land.
Counsel’s
submission however, which the deputy judge seems to have accepted, is that the
decision of the Secretary of State was based upon the factor of price (that to
say the difference in rent payable for the two respective types of residential
accommodation) and tenure, namely the differences between the letting or
licensing arrangements for those two types and that since these factors have
nothing to do with the character or use of the land, they do not amount to
legitimate planning purposes.
In addition it
is suggested, and indeed the learned judge appears to have accepted, that what
in truth the Secretary of State has sought to do by withholding planning
permission is to cast some of the local authority’s public housing obligations
upon Mr Mitchell, which, again, is not a legitimate planning purpose.
It is
undoubtedly the law that material considerations are not confined to strict
questions of amenity or environmental impact and that the need for housing in a
particular area is a material consideration within the meaning of what is now
section 70(2) of the 1990 Act: see Clyde & Co v Secretary of
State for the Environment [1977] 1 WLR 926, approved by the House of Lords
in Westminster City Council v British Waterways Board [1985] AC
676.
On the law as
it presently stands, therefore, the need for housing in a particular area is a
planning purpose which relates to the character or the use of land. Given that
this is so, the proposition advanced on behalf of Mr Mitchell is that the need
for a particular type of housing in an area is not a planning purpose which
relates to the character of the use of land if that need is itself dictated or
generated by considerations of cost or type of tenure.
I cannot
accept this argument. To my mind there is no sensible distinction to be drawn
between a need for housing generally and a need for particular types of
housing, whether or not the latter can be defined in terms of cost, tenure or
otherwise. In each case the question
a need for housing which the grant or refusal of the application would affect.
The fact that
the need may be dictated by considerations of cost or type of tenure seems to
me to be immaterial. Indeed, were this not so, then it is difficult to see how Clyde
could have been decided as it was, for given enough money, it would
virtually always be open to those in need of housing in an area to obtain it.
In my
judgment, the fallacy in the argument is that it simply confuses the need for
housing (which on the authorities is a legitimate consideration) with the
reasons for that need and concentrates exclusively on the latter while
effectively ignoring the former.
I now turn to
the suggestion that the policy in question was calculated to transfer to the
private sector — in this case Mr Mitchell — the public housing obligations of
the council. Suffice it to say on this point that I can find nothing in the
material shown to us today to suggest that in formulating their policy the
local authority were seeking to transfer and impose upon the private sector
their own statutory obligations with regard to the provision of housing. In
those circumstances, I take the view that there is no substance in the second
point.
Accordingly, I
would allow this appeal.
SIR ROGER
PARKER: I agree.
BALCOMBE
LJ: In my judgment, it is unrealistic to say that
economic considerations do not relate to the character or use of land. I refer
to the document entitled PPG3 — Housing, issued by the Secretary of
State, para 38 of which, under the heading ‘Affordable Housing’ says:
A community’s
need for affordable housing is a material planning consideration which may
properly be taken into account in formulating development plan policies.
Para 4 of the
consultation paper issued in January 1993 develops that by saying:
On some sites
it would be possible by controlling density to encourage the developer to
provide a sufficient proportion of smaller houses at the lower cost end of the
market.
In my
judgment, these provisions recognise correctly that the density of permitted
development will inevitably have an effect on the cost and therefore on the
price of the houses likely to be erected on the land, but nevertheless are
matters relating to the character and/or use of the land.
In like
manner, to retain a house in multiple occupation is likely to provide housing
of a type and of a cost available to a particular section of the community.
For those
reasons, which are really no more than an elaboration of what Saville LJ has
said, I agree that this appeal should be allowed.
Appeal
allowed with costs here and below.
