Town and Country Planning Act 1971–Application to quash decision of Secretary of State dismissing an appeal against refusal of planning authority to grant permission for erection of a rear extension to two adjoining properties originally designed for a mixture of commercial and residential uses–Secretary of State’s decision attacked on various grounds all of which were rejected by the judge–A complaint that the Secretary of State had not taken into consideration the fact that the extension had already been construed was rejected on the ground that the application was for permission to erect, not to retain an existing structure–A criticism that the inspector had failed to record that the extension constructed without permission was in fact immune from enforcement procedure (because more than four years had elapsed since completion) was likewise rejected–The matter had not been the subject of argument before the inspector and had not been brought to the attention of the Secretary of State–Other criticisms based on allegations of failure to deal with an issue as to established use rights and to give adequate reasons in the decision letter also rejected–Application dismissed
In these
proceedings the applicants, Chris Fashionware (West End) Ltd, sought an order
to quash the decision of the Secretary of State upholding a refusal by the
London Borough of Tower Hamlets to grant planning permission for the erection
of an extension at the rear of 88 and 90 Newark Street in the borough.
C J
Lockhart-Mummery (instructed by Sears & Co) appeared on behalf of the
applicants; J M Sullivan (instructed by the Treasury Solicitor) represented the
first respondent, the Secretary of State; the second respondent, the London
Borough of Tower Hamlets, was not represented and took no part in the
proceedings.
Giving
judgment, FORBES J said: In this case Mr Lockhart-Mummery moves on behalf of
the applicant, Chris Fashionware (West End) Ltd, for an order that the decision
of the first respondent, the Secretary of State for the Environment, given on
February 14 1978, should be quashed. That was a decision dismissing an appeal
by the applicant against the refusal by the second respondents to grant certain
planning permissions. The second respondents, the London Borough of Tower
Hamlets, are not represented in these proceedings.
There is
something of a history to this matter. The premises with which we are concerned
are nos 88 and 90 Newark Street in the East End of London and, of course, in
the London Borough of Tower Hamlets. I need not, I think, go over a description
of the premises: they are part of an island block and they are obviously of
Victorian origin, and constructed in what appears at first sight to be a rather
curious way. They are constructed and designed to have on the top or third
floor of each of those properties a workroom, and on the remaining floors,
originally, residential uses.
There is no
doubt when one reads the papers that this is one of those areas in which the
original mixed residential and commercial use of that character has
considerably changed and there is a very great deal more commercial use in the
area than there was when these houses were originally built. The kind of
commercial activity and light industrial activity which goes on is that
associated with the clothing trade.
The situation
is that in 1964 the present applicants became the tenants of these two
properties and in 1972 I think they erected an extension across the rear yard
of both premises. They did that without planning permission and also, I gather,
it infringed the London Building Act. Proceedings were taken and the local
authority secured the demolition of that extension under the London Building
Act. In March 1973 the present applicants applied to erect a further rear
extension to the property and in fact began to construct that extension during
1973, without waiting for planning permission. In 1973–there were various other
planning applications made at round about the same time–the planning applications
were refused and there was the usual planning appeal in 1975.
I should
mention the four applications for planning permission shortly. There were two
for the change of use of portions of no 90: the first for a change of use of
the ground floor from residential to ancillary showrooms, the second a change
of use of the second floor from residential to use as a clothing workshop.
There were two applications for planning permission for works: one was for
alterations to the ground floor and elevation of both 88 and 90 by way of
putting up a shop front; and the fourth was for the erection of the rear
extension to both premises which I have already mentioned–and for its use as a
clothing workshop.
Those
applications were refused and there was a planning appeal in 1975. The
inspector who conducted that appeal, I am told, completely failed to consider
the works applications–the extension to the back and the shop front–at all and
this court on January 14 1977 quashed the decision of the Secretary of State
and the matter was remitted to the Secretary of State, who recovered his
jurisdiction in the matter, so that in 1977 there was a further inquiry into
these four applications.
The inspector
who held that inquiry sat on July 11 and 12 and reported on, I believe, August
1 and the Secretary of State gave his decision by a letter of February 14 1978
dismissing the applicant’s appeal.
Mr
Lockhart-Mummery now comes to this court with what is now a reamended notice of
motion complaining of a number of matters. The first matter of which he
complains is that the Secretary of State failed to have regard to a material
consideration, namely, the fact that a rear extension of 88 and 90 had actually
been constructed over four years prior to the decision and had been in use as a
trading workshop during such period. That complaint was based on two passages
in the decision letter (and I want to take this as shortly as I may). The first
is in paragraph 6 of the decision letter and reads as follows:
According to
the evidence a single-storey rear extension covering the whole of the previous
rear yards of 88 and 90 Newark Street had already been erected without planning
permission some three years ago, before the appeal was lodged. Ground-floor
alterations do not appear to be the same as those which were the subject of the
application for permission but carried out in March 1977 without planning
permission.
That last is a
reference to the shop-front point and is not relevant to this issue.
The view is
taken that the nature of the existing rear extension and ground-floor
alterations and the question of whether they are acceptable are both irrelevant
to the present appeal, which must be determined on the basis of the planning
application originally submitted without reference to intervening developments.
The second
passage occurs in paragraph 7 when, after dealing with other matters concerned
with the extension, the Secretary of State’s letter goes on:
As stated
above, the acceptability of this extension, which has in fact been erected at
the rear of the premises, is not before the Secretary of State in the context
of the appeal.
Mr
Lockhart-Mummery for the applicant makes the point that it is clear from those
two passages that the Secretary of State has completely disregarded the
existence of the rear extension and, of course, the fact that, because it is
not only there but has been used as a clothing workshop since its completion,
the question of how far, in planning terms, it is an acceptable piece of development
is a matter about which there is actual, as opposed to hypothetical,
experience.
I am not
entirely happy that I understand what the Secretary of State meant by the words
‘the question of whether they are acceptable is irrelevant to the present appeal.’ What the term ‘acceptable’ is meant to deal
with I am not at all sure, but it seems to me that the only sensible way one
can regard that word is to take it that it must mean acceptable in some regard
which is a relevant consideration for the Secretary of State to have in mind,
and from that point of view it seems to me that the only way one can therefore
construe it is as meaning acceptable in planning terms.
The point
therefore is reduced to this. One of the applicant’s arguments at the inquiry
was that there was some years’ experience of the impact in planning terms of
this extension and that, having regard to that experience, it could be regarded
as acceptable in planning terms. That being the applicant’s argument, it seems
to me that it was a relevant argument for the Secretary of State to consider;
and it is clear that the Secretary of State has taken the view that he should
not consider it because it was not before him in the context of the appeal.
In answer to
that argument, Mr Sullivan, for the Secretary of State, points out that the
actual application here was for the erection of a rear extension: it was not,
he says, an application for the retention of an existing one, which would have
been a possible application for the applicants in this case to have made; and
that, having regard to that matter, the Secretary of State is right in taking
the view that the question of the acceptability of the extension which has been
already erected is not a matter which is before him. He is not concerned, in other
words, with the question of the retention of an acceptable or unacceptable
extension, he is concerned with an application for the erection of a new one.
It is fair to say that Mr Sullivan says that that is a comparatively narrow and
technical approach and not one which he would be best pleased to succeed. He
takes a second point, which is that this is a case where the omission to take a
relevant matter into account is one which operates in favour of the appellants
and not to their detriment; and he refers me to a passage from the judgment of
Megaw J, as he then was, in a case called Hanks v Minister of Housing
and Local Government [1963] 1 QB 999 at p 1020. It is a passage which I may
abbreviate perhaps in this way:
If the
authority fails to take into account as a relevant factor something which is
relevant, and which is or ought to be known to it, and which it ought to have
taken into account, the exercise of power is normally bad. I say ‘normally’
because I can conceive that there may be cases where the factor wrongly taken
into account, or omitted, is insignificant, or–
and this is
the passage upon which Mr Sullivan relies–
where the
wrong taking into account, or omission, actually operated in favour of the
person who later claims to be aggrieved by the decision.
The point
which Mr Sullivan takes is that the inspector’s view of the impact of this
extension can be gathered from the very end of the very last paragraph of this
report, which reads in these terms:
All aspects
of the development in this case in my view tend to consolidate and/or intensify
the existing use of 88 and part 90.
If I may
explain parenthetically, the existing use of 88 and part 90 was for commercial
or light industrial purposes, and the inspector goes on:
and thus
further detract from the environment of the locality to the detriment of
existing and future residential occupants.
Mr Sullivan
says it is quite clear from that passage that had the Secretary of State taken
into account this matter, namely, the acceptability or non-acceptability in
planning terms of the extension which had in fact been erected, all he had to
go on was that rather swingeing passage from the inspector’s report and, in
those circumstances, the Secretary of State would have been bound to have taken
the view that in planning terms the non-acceptability of such would be highly
detrimental to the applicant’s case.
Despite Mr
Sullivan’s disclaimer or partial disclaimer of the merits of this first point,
I would prefer to say in this case that the Secretary of State was right here
in taking the view that he should not take into account the fact that a rear
extension had already been erected, because the application which was in front
of him was indeed for the erection of a new rear extension.
I do not think
that the two paragraphs are very happily phrased, but if one had to quash a
decision because the Secretary of State’s decision letter was unhappily phrased
I fear that it perhaps might be that few decision letters would manage to
escape. It is very easy, sitting up here, of course to criticise the wording of
some of these letters, but I am sure that those who have to draft them have to
do quite a lot of them quite quickly and, on occasions, there is excuse for not
perhaps using the most felicitous of language.
Having said
that, I think that there is not anything really in the first ground of appeal
in this case. I think that the Secretary of State was right in taking the
strict view that he had not got in front of him an application to retain an
existing extension which was, in his view, the relevance of the argument from
the existence of the already constructed extension. He took the view that the
application in front of him was for the erection of a new rear extension and on
that application the existence of the existing one was indeed irrelevant. It
was after all an application for works not for change of use: any question of
impact or acceptability in planning terms would, in the circumstances of this
case, be a question directed therefore to the impact or acceptability of the
extension as a structure and not of its use once constructed.
The second
ground in the notice of motion is concerned with a matter which Mr
Lockhart-Mummery has abandoned, and so that need not trouble us.
The third
ground is divided into two because there has been an amendment. It arises from
this fact. Part of the evidence given in this case was given by the chief
planner employed by the London Borough of Tower Hamlets, Ian Draper. As is
common in these cases, the whole of his proof of evidence was put in front of
the inspector. It is a longish proof: it runs to 15 foolscap pages. Embedded in
it, in the middle of p 7, is one sentence which I shall read. It refers and is
referring to the construction of the rear extension which, as I have already
indicated, was begun and, indeed, completed by the applicant without the
benefit of planning permission. The sentence reads in this way:
The applicant
proceeded with the construction works and began using the extension as a
cutting room in October 1973.
That that
sentence appears in Mr Draper’s proof and that, in all probability, that
sentence was read by Mr Draper to the inspector is accepted by Mr Sullivan for
the purposes of these proceedings and I do not therefore have to deal with the
sometimes difficult question of precisely what kind of evidence, if any, should
be admitted in proceedings of this sort; but on that acceptance Mr
Lockhart-Mummery builds a very considerable argument. What he says is, first,
that the inspector failed to record and report that fact; and, secondly, in
effect, that had the inspector reported and recorded that fact it would have
been a material consideration for the Secretary of State to take into account
because the law is (and I need not, I think, go into it) under section 87(3) of
the Town and Country Planning Act 1971 that the extension then achieved the
status of being immune from enforcement procedure. Enforcement procedure can
only be taken within four years of the completion of the building operation. So
that by October 1977 the four years were up and the extension achieved its
immunity.
Mr
Lockhart-Mummery says that immunity, in effect, is a relevant and material fact
to which the first respondent should have had regard. He did not. Of course, no
complaint can really be made against the Secretary of State for failing to have
regard to this matter because no report about it and no evidence about it was
ever in front of him. I accept entirely–indeed it accords with one’s
experience–from Mr Sullivan that what is in front of the Secretary of State
when he takes his decision is not all the evidence but the inspector’s report
on the evidence and his conclusions and so on; so that nobody can really blame
the Secretary of State for not taking this matter into account: it was never
before him. That is the reason why Mr Lockhart-Mummery has to start by saying
it was the inspector who was at fault and the inspector who failed to record
and report this fact.
I have already
observed that it is only one sentence embedded in a 15-page proof; I also have
to observe (and Mr Lockhart-Mummery has accepted this) that at no stage in the
inquiry was any argument addressed to the inspector based on the fact that the
extension either had already achieved or would achieve immunity from enforcement
procedure by October 1977: It is easy to see why such an argument was not
addressed to the inspector: the inquiry was in July 1977. Had it been said at
that stage that immunity would be achieved by October 1977, I imagine that a
much less diligent local authority than Tower Hamlets would have been able to
start enforcement proceedings before the fatal date and no doubt there was no
desire to awaken the sleeping dog. No argument therefore was addressed to the
inspector based on this coming immunity.
I take the
view, quite apart from any question of procedure as to whether or not it is
competent in proceedings in this court to take points which were not taken at
the inquiry, that the matter goes deeper than that. This particular part of
this jurisdiction is concerned, broadly, with three points. First of all with
what might be called the Wednesbury principle, Associated Provincial
Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223: has or
has not the Secretary of State acted in a way that no reasonable Secretary of
State could be expected to act?
Secondly, questions of natural justice. Thirdly, the more ordinary
question of whether or not he has acted in accordance with the Town and Country
Planning (Inquiries Procedure) Rules and so on.
This is not a
rules point: this is a Wednesbury point at this stage. I do not see how
it can be argued that no reasonable Secretary of State could have disregarded
this particular point if this particular point has never, in fact, been brought
to his attention. Similarly, I do not think it could be said that an inspector
has failed in any way if he has not recorded a fact when there was not the
slightest indication from anybody that the fact was a matter of particular
relevance or that any argument was going to be based upon it.
I think the
whole of the argument of Mr Lockhart-Mummery on his grounds 3(a) and (b) fails
simply because no point was ever taken at the inquiry upon this matter and,
therefore, it cannot now be said that either the inspector or the Secretary of State,
in disregarding it, was acting unreasonably, as that word was explained by
Diplock LJ (as he then was) in Mixnam’s Properties Ltd v Chertsey UDC
[1964] 1 QB 214.
That was a
case concerned with by-laws, and at p 237 Diplock LJ had this to say:
Thus the kind
of unreasonableness which invalidates a by-law is not the antonym of
‘reasonableness’ in the sense in which that expression is used in the common
law, but such manifest arbitrariness, injustice or partiality that a court
would say: ‘Parliament never intended to give authority to make such rules;
they are unreasonable and ultra vires.’
In using the
term ‘unreasonably’ in relation to the Wednesbury principle I am to be
taken as using it in the sense so explained by Lord Diplock. So that I think
grounds 3(a) and (b) fail.
Then we go on
to 4 and 5, which can be run together. They arise in this way. There was an
argument, and considerable evidence, about the question of what was the established
use of these two houses. I need not go into it in any detail, but it is clear
when one reads the papers that there was some fairly forceful evidence called
by the applicants which showed that before January 1 1964 the whole of no 88
had in fact been used as commercial and light industrial premises and not for
residential use at all. The evidence in relation to 90 from the applicants was
less strong. In countering that, the local authority produced evidence,
consisting of rate returns and land-use maps and various other things,
indicating that, in their view at any rate, for a very short period perhaps
after January 1 1964 there was residential use in some parts of no 88. The
importance of January 1 1964, of course, being that so far as use is concerned
a use which existed before that date is commonly called an established use
because nothing can be done to stop it by enforcement procedure. If the use
started after that date, so far as use of the premises is concerned, there is
no bar to enforcement proceedings.
Although there
was argument about it (I strictly mean argument about whether or not 88 had
established use as commercial or light industrial), the inspector, having set
out the two differing pieces of evidence, declined to adjudicate between them.
What he found as a fact was:
There is a
conflict of evidence as to residential use of part of 88 Newark Street in the
period 1962 to November 1964. Electoral Roll records indicate some residential
occupation, but this is denied by the leaseholder.
Then he goes
on to say that from November 1964 the present applicants, who then took over
the accommodation, used the whole of 88 for business purposes. There was no
dispute between the parties that the top floors of both 88 and 90 had existing
use rights for workshop purposes; but the inspector refused to adjudicate upon
this particular point relating to the other floors and left it more or less in
the air.
He did record
another facet of this argument, which was this. If 88 had established use as
commercial premises the only contribution to the residential or housing needs
of the Borough of Tower Hamlets which the two properties would make would be
that one could reconstruct the interior of no 90 so as to provide one
three-bedroomed dwelling-house whereas if the premises at no 88, other than the
top floor, had not established use rights for commercial purposes and were to
revert to residential then by a transverse development across both properties
one could provide three floors, each with one one-bedroomed dwelling-house in
it.
There was
agreement that the one possible development would have cost £5,000 and the
other £12,000. That was the upshot as I see it: that the extent to which these
two properties would assist in the residential difficulties of the borough would
depend upon the question of what was the established use of no 88. But it
should be remembered that no application was before the Secretary of State for
any change of use in relation to no 88. Indeed, it is obvious that it would not
be, because the contention of the applicants was that they already had a use
for commercial purposes established. The only matters concerned with use in
front of the Secretary of State were the changes of use of the ground and
second floors of no 90.
Against that
background, the applicant here complains–and this is what grounds 4 and 5
amount to even if put in slightly different ways on each of those grounds–that
the Secretary of State, first of all, it is said, wrongly failed or neglected
to determine whether the lower three floors in no 88 enjoyed established use
rights for light industrial purposes; and secondly, that the Secretary of State
failed to have regard to a material consideration, namely, the established use
rights of the lower three floors of no 88. But, once again, we have to
consider, first of all, whether the question of what were the established use
rights of the lower three floors of no 88 was a material consideration for the
Secretary of State. If it was a material consideration, one then has to look to
see whether it
not.
At one stage I
thought Mr Sullivan was seeking to suggest that there was a third point, namely
that, even if it was a material consideration and the Secretary of State ought
to have taken it into consideration and did not, there was no ground for
believing that his decision would have been different if he had. That I do not
think is an argument which is open to us at this time. The courts are very slow
to seek to interfere with the Secretary of State’s decision, except on the
ground that he has failed (on this aspect anyway) to take into account a
material consideration. It is no part of the court’s duty to consider what
weight a material consideration should be given by the Secretary of State: as
long as he takes the thing into account he is fully entitled to attach what
weight to it he pleases. I do not think it is open to the court to follow Mr
Sullivan along that particular line because that would be, it seems to me, to
seek to evaluate the weight to be given to a material consideration. Certainly,
I for one, am not willing to tread that path at all.
The difficulty
I think Mr Lockhart-Mummery is in on these last two grounds is very much the
same as I find him in in grounds 3(a) and (b). Where is the argument addressed
to the inspector? Because if there is no
argument addressed to the inspector, based on the relevance of the use of no 88
to the application for a change of use of no 90, then it does not seem to me
that the Secretary of State has gone wrong in deciding, as he did, that he was
not going to take this matter into account because, in fact, no application for
such change in relation to no 88 had been made. What he said about it is to be
found in paragraph 5 of the decision letter:
The question
of the extent to which number 88 enjoys established use rights as a light
industrial building is not one for the Secretary of State to determine in the
context of the appeal.
Now that is
right, it seems to me: there was no application before the Secretary of State
in relation to no 88. There could have been, as Mr Sullivan points out. If the
applicants had wished to have determined what the established use rights of no
88 were, they could have made an application under section 94 of the Act and
gone to appeal to the minister under section 95 and had their section 95 appeal
consolidated with the section 36 appeal which they were already pursuing, and
all the issues could then have been determined by the same inspector at the
same time. But they have not taken advantage of the section 94 procedure and so
it is right to say that the question of what was the established use of no 88
was not formally before the Secretary of State. The question is, was it
relevant to make some decision about this matter even though it was not
formally in front of him?
Mr Sullivan
points out that if the Secretary of State or, for that matter, the
inspector–perhaps more importantly the inspector–is to be asked to decide a
question of fact such as the established use of no 88 as a step along the road
to taking some decision, it puts or may put the Secretary of State in a
difficulty. Mr Sullivan puts forward the possibility that it might in
circumstances be unfair to the applicant. He suggests, for instance, that if
the Secretary of State in this case had decided to make a decision about the
established use rights of no 88, he might have made an informal decision which
went against the present applicant. If he had done that and the local authority
had then taken enforcement proceedings, encouraged no doubt by the favourable
view from their point of view–the favourable even though informal view of the
Secretary of State–it might be extraordinarily difficult for the Secretary of
State to deal with the matter if the enforcement proceedings were brought, he
already having, as it were, informally decided the matter against the
applicant.
One can well
see there are matters of that kind which might make it difficult for the
Secretary of State to take decisions on matters of this kind when they are not
formally before him for decision under section 95.
I return to
the question of what is the argument. Mr Lockhart-Mummery says that the only
possible reason for canvassing the question on both sides–and both sides
canvassed it–of what were the established use rights of no 88 was that there
was an argument that the retention in residential use of the ground and second
floors of no 90 was made less attractive from the planning point of view if no
88 had established use rights for light industrial purposes. Nowhere in the
inspector’s report can I find any record of such argument being addressed to
him, and I think Mr Lockhart-Mummery is constrained to accept that there is no
record of such an argument.
I do not accept
Mr Lockhart-Mummery’s premise that the only purpose for adducing that evidence
was to support such an argument. It seems to me that there is an alternative
reason which one can extract from the inspector’s report for the canvassing of
this question. That is simply this–I think I have already referred to it. If no
88 as a house, as it were, was going to remain in light-industrial use, one
particular rehabilitation of no 90 would be indicated, whereas if no 88 were
not going to remain in light-industrial use a different kind of residential
solution for nos 88 and 90 would be available. I do not think it at all follows
that one can supply the deficiency in the report–the deficiency that there is
no record of any argument such as Mr Lockhart-Mummery now puts forward–by
saying that the only purpose of adducing the evidence was to support such
argument.
I can find no
real suggestion in the report that the reason why this question was canvassed
was to support the argument which Mr Lockhart-Mummery now puts forward. I
therefore do not regard grounds 4 and 5 as made out at all.
At a very late
stage, and by amendment, Mr Lockhart-Mummery has been allowed to put in a new
ground 6. This is simply that the Secretary of State failed to give any or any
adequate reasons for failing to take into consideration the prior existence of
the rear extension and failing to determine the issue about the established use
rights of no 88. In the view I have formed of the matter, I do not think the
reasons question arises, because it seems to me that it certainly does not
arise on 4 and 5, because I am determining grounds 4 and 5 on the basis that no
argument was adduced to the inspector such as Mr Lockhart-Mummery now puts
forward and, therefore, the Secretary of State cannot be faulted for not taking
into consideration an argument which was not directed to the inspector.
So far as the
first point is concerned, that is, the failing to take into consideration the
prior existence of the rear extension, I think the Secretary of State has given
adequate reasons and, looked at in the way I have been looking at it, he has
also given adequate reasons, in effect, for refusing to determine any question
about the established use rights of no 88. In both cases he has put it on the
basis that the appeals he is determining must be looked at in the context of
the applications for planning permission. In the case of no 88 the only
applications relating to no 88 were the applications for the extension and for
the shop window. No applications for change of use were made. He has taken the
view, therefore, that a decision on the established use in no 88 was not before
him. I think he is right. Similarly, in relation to the rear extension, he has
taken the view, as I find, that the matter which was before him was for the
erection of a rear extension and not for the retention of an existing one and
he has–perhaps not as happily as he might in the second case, but nevertheless
sufficiently intelligently–expressed both those reasons in his decision letter.
For those
reasons I think that this application fails.
The
application was dismissed with costs.
