Town and Country Planning Act 1971 — Application under section 245 to quash decision of Secretary of State for the Environment upholding refusal of planning authority to grant planning permission — The permission sought was for certain works, but the substantive issue was whether planning permission was required for a change of use from a yacht club to a restaurant and dining-club with dancing facilities — The premises in question consisted of two arches beneath the railway line running south from Putney Bridge Station over the Thames, and some adjoining land — The premises had been used in the past for a club connected with boating and the last lawful use before the premises were gutted by fire in 1979 was as a yacht club — The Secretary of State had agreed with the inspector’s recommendation that the refusal of planning permission should be confirmed on the ground that the proposed use was materially different from the previous use — It would have no connection with the recreational use of the river and would be much more intensive in terms of opening hours and in providing for dancing — It was now argued that the Secretary of State was in error, as a social club was a social club, whatever the community of interest which bound members together — Mann J rejected this submission — There may be, and there were here, materially different uses, in planning terms, between social clubs — It was a matter of fact and degree in each case — Appeal dismissed
This
application under section 245 of the 1971 Act was made by Stephen John Burkmar
and arose from the refusal of the London Borough of Hammersmith and Fulham to
grant planning permission in respect of Railway Arches 75 and 76 and adjoining
land at Ranelagh Gardens. The Secretary of State had dismissed Mr Burkmar’s appeal
from this refusal.
Michael H
Johnson (instructed by Owen White & Catlin) appeared on behalf of the
applicant); John Laws (instructed by the Treasury Solicitor) represented the
Secretary of State; A Kelly (instructed by the Solicitor, London Borough of
Hammersmith and Fulham) represented the borough.
Giving
judgment, MANN J said: There is before the court an appeal under section 245 of
the Town and Country Planning Act 1971. The decision of the Secretary of State
which it is sought to impugn is dated July 27 1983. That decision arises out of
the refusal by the London Borough of Hammersmith and Fulham to accede to an
application for planning permission made by the present appellant on December
30 1981. In that application, the appellant sought a planning permission for
certain works which would have enabled Railway Arches 75 and 76 and adjoining
land at Ranelagh Gardens to be used as a restaurant dining-club with boating
facilities. No permission was sought for a change of use. The only permission
sought was in relation to works.
The refusal
which gave rise to the appeal was dated April 7 1982 and was confined entirely
to reasons relating to use. It is common ground between the parties that the
substantive issue at the inquiry was whether or not the proposed restaurant
dining-club use was a use which required planning permission. The appellant
said that it did not because it was within the established use and thus would
not constitute a material change. The local authority asserted to the contrary.
The local authority also asserted that even if there were established use
within which the proposal could be accommodated, that use had been abandoned.
The Secretary
of State determined the point of abandonment adversely to the local planning
authority and that point is no longer in contention.
The inquiry
was held by a Mr J M Daniel on March 1 and 2 1983. He prepared a full report
dated April 28 1983. He found facts in para 60 of his report. I must read the
first eight of these. They are:
1. The premises subject to the appeal are two
arches (nos 75 and 76) beneath the railway line running south from Putney
Bridge Station over the River Thames. Internally they were gutted by fire in
1979 and have not been repaired or used since.
2. The intention is to refurbish and extend
the arches slightly to enable them to be used as a restaurant dining-club, with
about 2,000 members. The premises, which would be fully air-conditioned and
soundproofed, would provide seating for some 105 diners, and have two bars and
two open eating and drinking patio areas. A small dance-floor would also be
provided.
3. The remainder of the open area of the site
would be utilised to provide a small car park and some very limited storage
space for rowing boats and canoes. A valet parking service would be provided
for members.
4. There are records to show that the premises
have been used as a club connected with boating, and for some other purposes,
including a caretaker’s flat and storage, since 1919. The records do not
include any details of occupation during and immediately after the second world
war, and there is no specific evidence about the actual use taking place on
July 1 1948, although there is no reason to believe that it was other than a
club connected with a recreational use of the river as claimed by the
appellant.
5. There is a record of a tenancy commencing
in February 1950 for the purpose of a yacht club, and on July 21 1962 the
Fulham Yacht Club was granted a registration certificate under the Licensing
Act 1961. There is also a record that Fulham Yacht Club vacated the premises on
September 30 1965. There is thus little doubt that on December 31 1963 the
premises were being used as a yacht club.
6. It is also clear from the records that a
so-called yacht club continued to operate until its disqualification under the
Licensing Act on February 15 1979, although there would appear to have been
short breaks in the club use in the period from the beginning of 1974 to that
time. However, there is no record of any other use taking place during that
time.
7. There is no record of a licence ever having
been granted by the Greater London Council for music and dancing at the appeal
premises.
8. There is no accepted planning definition of
a ‘club’, but the former club uses of the premises would appear to have been
connected primarily with recreational activities involving boating or yachting
on the river whereas the intended use would be primarily to provide facilities
for eating, drinking and dancing.
The inspector
formulated his conclusions and they are repeated in the Secretary of State’s
decision letter of July 27. In that letter, the Secretary of State said:
The inspector
said in his conclusions: ‘a. It seems to me that there are four matters, which
can each be considered separately, to be decided in this appeal. First, it must
be determined whether planning permission for the use now intended is in fact
required as although there is no formal application under section 53 of the
Town and Country Planning Act 1971 it has been submitted by the appellant that
it is not necessary.’
The Secretary
of State further recited the inspector’s conclusions as follows:
On the first
issue it seems to me from the evidence available that planning permission is
required for the proposed use. The somewhat scanty early records available show
that from 1919 onwards the premises were used mainly in connection with a
boating and yacht club, although there were some other ancillary or minor uses,
and there is no evidence about whether there were any gaps in the tenancies
during and immediately after the second world war. Records do not show
specifically the use that was taking place on July 1 1948, although there is no
reason for concluding that it was not a boating or yacht club. There seems to
be little doubt that on December 31 1963 the Fulham Yacht Club was in
occupation, and a yacht club use thus became an established use at that time.
Since then there has been no other use taking place although there would seem to
be reasons for concluding that the Ranelagh Yacht Club did not actually use the
premises in accordance with the objects of the club stated in the application
for a registration certificate under the Licensing Act in the period prior to
the certificate. However, apart from that point, it seems to me that planning
permission for the intended use would be required as it would be materially
different to the previous lawful or established use.
I then omit
some words. The Secretary of State then continued the recital:
In view of
the fact that the proposed restaurant dining-club use would have no connection
(other than for the provision of limited storage space for a few small boats)
with any recreational use of the river, and would be much more intensive in
terms of opening hours and in providing for dancing, it seems to me to be
materially different from the previous use, even though the yacht club had
facilities for serving food and drink to members and guests (but apparently not
for playing music or for dancing).
The inspector
recommended that the appeal should be dismissed. I do not rehearse his
observations in regard to other matters which were before him. They are not the
subject of consideration in this court.
In the
executive paragraph of his letter, that is to say, para 3, the Secretary of
State said this:
The Secretary
of State agrees generally with the inspector’s conclusions. He considers that,
as a matter of fact and degree, your client’s proposals for the use of the
appeal premises as a restaurant dining-club are sufficiently different from the
last lawful or established use, as a yacht club, to constitute a material
change of use. In this respect he therefore agrees with the inspector’s view
that planning permission for the proposed use is required.
The Secretary
of State then proceeded to refer to other matters and he concluded by
dismissing the appeal.
Before this
court, Mr Johnson seeks to fault the Secretary of State’s conclusion. He seeks
to do that by reference to the consideration that the inspector — and hence
derivatively the Secretary of State — should not have treated the yacht club as
being a different form of club from any other social club. He said that a
social club is a social club, whatever the community of interest which binds
the members together.
I cannot agree
with that submission. There is no use class ‘social club’. Social clubs may be
of varying species. The impact of a social club of one species may, from a
planning point of view, be different from the impact of a social club of another
species. If the impacts are materially different, there can be, in planning
terms, materially different uses. It seems to me that it is a matter of fact
and degree whether, in any particular case, to change from one form of social
club to another would be to effect a material change of use.
In my
judgment, there was ample material before the inspector and the Secretary of
State on which they could come, as a matter of fact and degree, to the
conclusion that the anterior use was materially different from the proposed
use. Accordingly, I conclude that the Secretary of State’s decision cannot be
faulted on a point of law in this respect.
The appeal
was dismissed, the appellant to pay the Secretary of State’s costs, but not the
local planning authority’s costs.