Planning permission made subject to a condition requiring existing office accommodation, at present used for extraneous purposes, to be ancillary to the buildings on the development site–Condition valid–Intended to promote planning authority’s office policies both outside and inside the area covered by the permission–Held fairly and reasonably to relate to the permitted development
This was a
summons by AI & P (Stratford) Ltd, of 9 Grafton Street, London W1, seeking
a declaration that a condition attached to a planning permission granted to the
company by the defendants, the London Borough of Tower Hamlets, was void and of
no effect.
Mr M H Spence
(instructed by Wigram & Co) appeared for the plaintiffs, and Mr A D Dinkin
(instructed by the solicitor to the council) represented the defendants.
Giving
judgment, PHILLIPS J said: The plaintiffs, AI & P (Stratford) Ltd, claim by
originating summons a declaration that condition 5 of a planning permission
granted by the defendants and dated June 28 1974 is void. By their defence the
defendants, the council of the London Borough of Tower Hamlets, who are the
relevant planning authority, deny that the condition is void, and in the
alternative claim that if it is void the planning permission itself is null and
void by reason of the invalidity of the condition.
The planning
permission relates to premises at East Cross Centre, Waterden Road, Tower
Hamlets. The development which is permitted is the erection of two warehouse
units and one industrial unit, being the first phase of development proposals
for the site. Condition 4 provides that the welfare accommodation in the
existing welfare office block shall be retained as welfare accommodation and
not used for any other purpose. Condition 5, which is the disputed condition, provides
that the office accommodation in the existing welfare office block shall only
be used as ancillary to non-office uses on the site. It is common ground that
the word ‘site’ in that condition refers to the whole area, including what I
may call the new units and the old units. Condition 6 provides that the portion
of the proposed building set apart as offices shall not be used otherwise than
as ancillary to the main use of the premises.
There is a
plan, which is exhibit 2 to the affidavit of Mr T J Davies [the development
manager to the plaintiff company], and is a copy, I think, of the plan annexed
to the permission. What that shows is that before the permission there was an
existing industrial building subdivided into parts and that there were existing
offices. On the plan the existing offices are outlined in red, and there is
additionally shown in dark solid grey the newly-permitted development, which
consists of two blocks of warehouses and some blocks of industrial units. Only
the first one of these was permitted by this permission, being the first phase
of the proposed development. The whole of that is outlined by a black line, and
the whole of the area within that black line, as I understand it, is the ‘site’
referred to in condition 5. Therefore, it is to be seen that there is within
the site both old development–for which there were presumably permissions which
had been in operation for some time–and the newly-permitted development. It is
also the case that included in the newly-permitted development was a small
element of office accommodation to be used as ancillary to the newly-permitted
warehouse and industrial units, but that is not separately shown on the plan.
The effect,
then, of condition 5 is that what I have called the existing offices (which are
so marked in the plan) are required thenceforth only to be used as ancillary to
non-office uses on the site. That is to say, they are to be used as offices
ancillary to existing industrial buildings, or to the newly-permitted warehouse
and industrial units. What is complained of is this: it is said that the
condition attached to this permission cuts down the plaintiffs’ rights as
owners in respect of their own existing offices, which are not part of the
newly-permitted development. The relevant statutory provisions are sections 29
and 30 of the Town and Country Planning Act 1971. That is a consolidation Act,
and the provisions to which I am about to refer date from the beginning of the
post-war extension of the town and country planning legislation in the Act of
1947. Section 29 provides:
Subject to
the provisions of sections 26 to 28 of this Act and to the following provisions
of this Act, where an application is made to a local planning authority for
planning permission, that authority in dealing with the application shall have
regard to the provisions of the development plan, so far as material to the
application, and to any other material considerations, and (a) subject to
sections 41, 42, 70 and 77 to 80 of this Act, may grant planning permission
either unconditionally or subject to such conditions as they think fit, or (b)
may refuse planning permission.
Section 30
provides:
Without
prejudice to the generality of section 29 subsection (1) of this Act,
conditions may be imposed on the grant of planning permission thereunder (a)
for regulating the development or use of any land under the control of the
applicant (whether or not it is land in respect of which the application was
made) or requiring the carrying out of works on any such land, so far as
appears to the local planning authority to be expedient for the purposes of or
in connection with the development authorised by the permission.
It is common
ground that the wide words of section 29 and section 30 have to be interpreted
in the light of the decided cases. I have been taken by Mr Spence and Mr Dinkin
most helpfully through the various cases. There is, I think, no need for me to
make any citation from them, because there is no real controversy as to what
the true position is. But they, and in particular Pyx Granite Co v Ministry
of Housing and Local Government [1958] 1 QB 554, Kingston upon Thames
Royal London Borough Council v Secretary of State for the Environment
[1973] 1 WLR 1549, and the cases therein cited, with the others to which I have
been referred, establish that the wide words of sections 29 and 30 have to be
read subject to these limitations, that a condition cannot be justified, and
will if necessary be declared invalid by the courts, if it is arbitrary or
whimsical, if it is inserted for some ulterior purpose, or if it is
unreasonable; provided always that in the latter case it is so unreasonable
that it can be said that no reasonable planning authority would attach it to
the permission. Putting the same thing positively, in order to be valid a
condition must be reasonably related to the development in the planning
permission which has been granted; or, to use other similar language from the
cases, the condition must fairly and reasonably relate to the permitted
development. For example, in most cases, to require the applicant for planning
permission to abandon the use of different and distant premises owned by him as
a condition of the grant of permission for other premises would usually not be
a proper condition.
Mr Spence, on
behalf of the plaintiffs, puts his argument under two heads. First, he says
condition 5 does not reasonably relate to the development to be carried out,
because (a) it is an attempt to require the plaintiffs to restrict the use of
the office building (that is, the existing office building) as a condition of
obtaining permission to carry out the development applied for. I think that
that contention is too widely framed, because the mere fact that such a
requirement–that is to say, the restriction of the use of existing
premises–was attached as a condition of the obtaining of permission would not
necessarily, by itself, render the condition void, unless it can further be
said that the condition so attached did not relate to the permitted
development. And I think that in the end Mr Spence accepted that comment on
this part of his submissions, and he broadened submission (a) by saying that
what the defendants were here trying to do was to obtain an incidental
advantage of a purely negative character by preventing in the future the
existing offices being used for general office purposes without any benefit to
or connection with the permitted development: and that in effect what they were
doing was trying to obtain by other and improper means what could only properly
be obtained by a section 52 agreement. The submission continues in (b) of its
first head: ‘because the condition is not expedient for the purposes of, or in
connection with, the development authorised by the permission.’ Secondly, Mr Spence submits that condition 5
is unreasonable in that it seeks to deprive the owners of their existing use
rights in another building on the site. I think he may want to add, or anyhow
make the rider, ‘and to do that without compensation.’ That contention, apart from being stated, has
not been further advanced in argument in this court, for the reason that there
is authority to the contrary in the Divisional Court in the case of the Kingston
Royal London Borough Council. But Mr Spence puts it forward because if this
case should go further he may wish to argue the point hereafter.
So really the
matter comes down to (b) of counsel’s first head, which I will repeat because
it is the heart of the case: ‘the condition is not expedient for the purposes
of, or in connection with the development authorised by the permission.’ Before going any further, it is necessary to
note that there is here an unresolved question of fact, that is to say, the
extent to which the existing offices, or the existing welfare office building,
have over the last few years been used for purposes ancillary to the existing
industrial building, and how far they have been used for what I would call
extraneous office purposes. That is a matter in dispute between the same
parties. Not only is it in dispute between them, but it is the subject of
different litigation proceeding elsewhere. It is obviously a matter of great
importance, because (without going into details) the extent to which it has
been used for extraneous office purposes may determine the extent to which the
plaintiffs will be able to use the existing office building for such purposes
in the future. That question remains to be determined by the pending litigation
between these parties, and during the course of this case I have been somewhat
concerned whether I can properly decide the question before me without knowing
the answer–the factual answer to that matter. In the end I have come to the
conclusion that I can, and that it is possible to determine the validity of
this condition without knowing the answer to this question. From a practical
point of view, I think it makes the problem more difficult, because one’s mind
the whole time is slightly wondering precisely what the actual user in the last
few years has been. And to some extent, of course, that question lies at the
back of Mr Spence’s submissions, because in effect what he is saying here is
that it is wrong for the planning authority to be able to tell the owner of a
building, who has used it for extraneous office purposes, in the future to cease
such user and to use it for office purposes ancillary either to the old
existing industrial buildings, or to the new ones. But certainly I think no
injustice can be done if I test the validity of the plaintiffs’ contentions by
assuming for present purposes what really is the most favourable position from
their point of view, namely that the existing offices have for some time past
not been used (anyhow exclusively) as ancillary to the existing industrial
buildings. On that assumption, and against the background where I have
indicated, I come to the question whether condition 5 is fairly and reasonably
related to the permitted development, reminding myself that the permitted
development is the two blocks of warehouse units and the first phase of the
industrial units, and bearing in mind, as Mr Spence points out, that the
existing offices are part of the old development and are at the opposite end of
the site from the newly-permitted development.
The
plaintiffs’ contentions, in elaboration of the submissions which I have read,
are that this condition has been inserted as a means of supporting and
advancing the defendants’ policy as the planning authority of the restriction
of office development and of confining it as far as possible to certain
particular selected areas. To some extent that is obviously factually true, but
the real question is this: whether that is the only purpose of the condition,
or whether as well as having that purpose it relates also to the permitted
development. There are available to the court in the determination of this
question as well as the matters which I have already indicated, certain
additional matters in the planning permission, and certain matters in the
affidavit of Mr John David Hume, who is the director of development of the defendant
planning authority. I have already read conditions 4, 5 and 6, but the planning
permission also sets out the reasons for the insertion of those conditions.
Condition 4 is the condition requiring the welfare accommodation to be
retained, and the reason given is to ensure that the welfare accommodation is
retained for the use of employees of future occupiers of the site. The site
includes, as well as the old existing industrial building, the newly-permitted
development, and the reasons given for conditions 5 and 6 are to ensure that
the development complies with this authority’s policy of restricting further
office development, and to ensure that these elements of the scheme conform to
the provisions of the initial development plans of Greater London in which the
site is allocated for industrial purposes.
Those reasons,
particularly 5 and 6, are perhaps not as clear as they might have been, and Mr
Spence draws attention to the different treatment of the welfare accommodation
and the office accommodation, because condition 4 and reason 4 make it clear
that the welfare accommodation is to continue to be available for the purposes
of the new development whereas condition 5 and reasons 5 and 6 (so counsel
contends) make it clear that the purpose of condition 5 is to restrict the use
of the existing office accommodation in pursuance of the planning authority’s
policy for offices, and that this has nothing to do with the newly-permitted
development. It seems to me, however, that it is at least possible from a
reading of conditions 4, 5 and 6 and reasons 4, 5 and 6 that the planning
authority had two purposes in mind: a general purpose, namely to reduce office
accommodation except in the appropriate areas, and a particular purpose, namely
to ensure that the existing office accommodation remained available to be used
for the purposes inter alia of the new development. It seems to me that
support for that interpretation is to be found in the affidavit of Mr Hume, to
which I have referred. In paragraph 9 Mr Hume says:
In my view it
would not have been a good time for planning practice to consider any part of
the proposals in the centre in isolation. In considering the section 72
application regard was had, inter alia, to (1) the need to retain
existing amenities and services on the site for the use of future occupiers,
and also (2) the need to ensure that development proposals would not result in
increase in office space off the site which would have been contrary to the
office policy of this council and the Greater London Council–
and then I
omit the rest of that paragraph. And in paragraph 11 Mr Hume says:
In the light
of these two factors, when the section 72 application was reported to this
council’s development committee, I
in the event of a varied planning application being submitted, a number of
conditions should be imposed, including a condition limiting the use of the
existing ancillary office welfare building to office and welfare units
ancillary to the main non-office uses of this site.
Then, and I
interpolate, he goes on to explain why:
My concern
was that if the offices were let independently [and that is what I call
extraneous offices] future industrial occupiers of the centre would need to
provide their own ancillary office space. This need to provide additional
office space could lead to the existing and proposed industrial and warehouse
space being used for office purposes thereby resulting in a net increase in
office floor space and a reduction in the industrial and warehouse floor space.
This would be contrary to the council’s planning policy of retaining and
encouraging industrial employment in the borough.
Mr Spence, of
course, comments that despite all that, what the planning authority are really
trying to do is to compel the plaintiffs to use their own property for purposes
for which they do not wish to use it. That is being done as a condition of the
grant of planning permission. In paragraph 16 Mr Hume continues:
This application
[that refers to the planning application which followed the section 72
application] in fact was made before the result of the section 72 application
was known. This application [and that of course is the one to which this
permission relates] is considered as the first phase development for the whole
centre, and I therefore recommended to the development committee the conditions
which previously had been approved by the committee and of which the applicants
had been informed as being suitable conditions to be imposed in the event of a
varied planning application being submitted.
The chronology
then was this: first of all the section 72 application, followed by the
planning application, and before that was granted, the result of the section 72
application was made known to the plaintiffs (whether or not they had known it
before, I do not know), followed on June 28 by the planning permission. The net
result of all that is, it is plain from this affidavit, that the same
considerations led to the imposition of this condition as led to it in the
section 72 application.
That evidence
by Mr Hume has not been challenged, and there has been no application to
cross-examine him. As I have already indicated, independently of that evidence
(so it seems to me) a possible interpretation of reasons 5 and 6 is along the
lines to which he deposes in the paragraphs of his affidavit which I have read.
Thus, it seems to me, one can see that the reason for the attachment of this
condition was that it was first of all intended to serve and promote the policy
of the planning authority and the Greater London Council for the control and
the restriction of office accommodation, but that it was intended to do this
not only in the existing offices themselves (and therefore outside the
particular area of the planning permission), but that it was intended to
implement those policies within that part of the site which is within the area
of the planning permission. It was hoped thereby to prevent what was intended
to be used in the future as warehouse and industrial accommodation from having
to be used, in part at least, for ancillary office purposes. Now, if that is
the right interpretation of the facts–and I find that it is–it seems to me that
inevitably condition 5 is a condition which in fact does relate to the
permitted development. That being so, the ground upon which it has been
attacked must fail. It is not said that this condition is so unreasonable that
no reasonable planning authority could have attached it; and, if it had been, I
do not think that that could have been made good. So I come to the conclusion
that this is a valid condition. In those circumstances I do not think that it
is necessary for me to say much about the contention of the defendants that if
it had been void, the whole planning permission itself would also be void. The
reason I do not think it would be useful to say anything about that is that one
can only deal with this contention when one knows precisely why, if it were the
case, the condition was void. Accordingly the conclusion is that in my judgment
the plaintiffs are not entitled to the declaration which they seek.
The summons
was dismissed with costs.