Town and Country Planning Act 1971–Refusal by planning authority of permission for change of use from residential to office use–Decision upheld by Secretary of State, quashed by Willis J, but restored by Court of Appeal–Whether the desirability of preserving an existing permitted use (for housing) a proper ground for refusal of planning permission–Observations on. Granada Theatres Ltd v Secretary of State for the Environment–"Question of much importance in planning law"
This was an
appeal from a decision by Willis J on October 19 1976 quashing a decision by
the Secretary of State for the Environment, who had held that Guildford Borough
Council had acted correctly in refusing planning permission for the use as
offices of and part of premises in Guildford known
existing permission for residential use.
Harry Woolf
(instructed by the Treasury Solicitor) appeared on behalf of the appellant, the
Secretary of State for the Environment; Michael Mann QC (instructed by Wedlake
Bell) represented the respondents, Clyde & Co; Guildford Borough Council
took no part in the proceedings.
Giving the
first judgment, SIR DAVID CAIRNS said: This is an appeal from the judgment of
Willis J in a planning case. Guildford Borough Council refused permission for
change of use of part of a building from residential to office use. From that
refusal, there was an appeal to the Secretary of State for the Environment.
There was a local inquiry and the inspector recommended that the appeal should
be dismissed. The Secretary of State accepted that recommendation and dismissed
the appeal. There was then an application to the High Court under section 245
of the Town and Country Planning Act 1971 to quash the decision of the
Secretary of State. Willis J heard the application, acceded to it and quashed
the decision. The Secretary of State appeals to this court. The building
concerned is Miller House, Bedford Road, Guildford, Surrey.
I take this
statement of the facts from the judgment:
The building
under consideration comprises the eastern half of a block originally intended
by the owners, Messrs Miller, as their principal office since they needed some
space urgently. Their application took the form of offices for the western half
and eight flats with garages for the eastern half. This was a device to avoid
the need to obtain an office development permit for the whole block and the
consequent delay.
I interpose
this explanation: before planning permission can be given for use of premises
as an office, an office development permit must be obtained from the Secretary
of State unless the area of the floor space of the proposed office is within
the "exemption limit," which is now 10,000 sq ft: see sections 73 to
75 of the Act of 1971 and an order made by the Secretary of State under section
75(a). The floor space of the whole of Miller House was about 20,000 sq ft, but
the floor space of the western half was under 10,000 sq ft.
I now go back
to the judgment:
In the result
the western half has been built and occupied. The eastern half was built at the
same time because it seemed sensible to do so although it had become clear that
the western half was sufficient for Messrs Miller’s office requirements. The
flats have not been completed, and the mode of construction would permit either
of offices or flats. There is thus no actual residential accommodation in the
building, but the permitted use is for residential purposes and therefore permission
was needed to change that use to office purposes to accommodate the appellants.
The
appellants (Clyde & Co) are a very well-known firm of solicitors in the
City of London specialising in marine insurance. Their need to expand could not
be satisfied in the City. They therefore followed a then government
encouragement to decentralise. Under the advice of the Location of Offices
Bureau they moved a number of partners and staff to Guildford in 1969. They
came to need more and better accommodation and finally were able to obtain a
lease of the eastern half subject to obtaining an office development permit,
which has been granted, and planning permission.
The ground on
which the inspector recommended refusal of permission is contained in paragraph
48 of her report from which I read:
The appeal
premises were erected as a result of a planning permission granted in respect
of an application in which they were indicated as eight flats with garaging on
the ground floor. The flats if completed would provide a reasonable standard of
accommodation and although the immediate external environment might be poor
they would be suitable for small adult households. There is a shortage of
housing accommodation in Guildford, at least in the public sector, and hence
the loss of residential accommodation is to be resisted save in the most
exceptional circumstances. I am not convinced therefore, despite the strength
of the appellant company’s case, that the loss of the eight flats that would be
provided by the appeal premises can be justified.
The Secretary
of State agreed with the inspector’s conclusions and therefore dismissed the
appeal. Willis J quashed that decision because the only ground for it was the
desirability of retaining the permitted housing use and this, the judge held,
was not a proper consideration on which to found the decision. The first ground
of appeal is that the learned judge erred in law in so holding. The second
ground of appeal is that the Secretary of State was entitled to take into
account (a) that the premises were erected as a result of planning permission
for flats or garages, (b) that the flats if completed would provide a
reasonable standard of accommodation, (c) that there was a shortage of housing
in Guildford and (d) that in the circumstances the loss of eight flats could
not be justified.
The basis for
the judge’s decision was his interpretation of section 29(1) of the Act of
1971, which provides, so far as is material, as follows:
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.
That
subsection provides the matters to which the local planning authority is to
have regard, and by reason of section 36(3) the Secretary of State has to deal
with the matter on the same basis. Clearly, the "material
considerations" which the Secretary of State has to have regard to must be
considerations material to the application. It is common ground that they must
be planning considerations. Mr Woolf, on behalf of the Secretary of State,
contends that the desirability of providing housing is indeed a planning
consideration, and that it must be material to consider the factor in deciding
whether to permit a change of use which would intensify an existing shortage of
housing accommodation.
The appeal
raises a question of much importance in planning law, upon which there is no
direct authority except a decision of His Honour Judge Stabb, sitting as a
deputy High Court Judge, made without any argument being heard because of a
concession which was made. We were told by Mr Woolf that until that decision it
was always assumed that in considering whether planning permission should be
given for change of use it was necessary to balance the desirability from a
planning point of view of the proposed use against the existing permitted use.
Mr Mann for Clyde & Co, however, did not accept that that was so, and
pointed out that Willis J, with his great experience in this field, does not
seem to have thought that any established practice was being upset by Judge
Stabb’s decision or by his own decision.
It is common
ground that the range of matters which the Secretary of State must take into
consideration is wide. To illustrate how wide it is, Mr Woolf drew our
attention to certain authorities. In Fawcett Properties Ltd v Buckinghamshire
County Council [1961] AC 636, a case under the Town and Country Planning
Act 1947, corresponding to section 29(1) of the 1971 Act, permission had been
given for the building of certain cottages on condition that they were only to
be occupied by people who were or who had been engaged in agriculture. Lord
Denning said at p 678:
Next I turn
to the question of ultra vires. The local planning authority is
empowered to grant permission to develop land "subject to such conditions
as they think fit." But this does
not mean that they have an uncontrolled discretion to impose whatever
conditions they like. In exercising their discretion they must, to paraphrase
Lord Greene’s words in the Wednesbury case, have regard to all relevant
considerations and disregard all improper considerations, and they must produce
a result which does not offend against commonsense; or to repeat my own words
in the Pyx case, the conditions, to be valid, must fairly and reasonably
relate to the permitted development: or yet again, to borrow
authority which is entrusted with a discretion must act reasonably, see Westminster
Corporation v London & North Western Railway Co, Roberts v Hopwood;
and I take it that if the authority acts reasonably the result will be
reasonable. Out of these various shades of meaning I am not sure that the last
is not the best: for it puts planning conditions on much the same footing as
by-laws made by a local authority, to which they are so closely akin. Indeed, I
see no difference in principle between them. As with by-laws, so with planning
conditions. The courts can declare them void for unreasonableness but they must
remember that they are made by a representative body in the public interest.
When planning conditions are made, as here, so as to maintain the green belt
against those who would invade it, they ought to be supported if possible. And
credit ought to be given to those who had to administer them, that they will be
reasonably administered; see Kruse v Johnson.
In Stringer
v Minister of Housing and Local Government [1970] 1 WLR 1281 Mr
Justice Cooke upheld a decision to refuse planning permission for a building
which interfered with the working of the Jodrell Bank telescope. He said at p
1294, letter G:
It may be
conceded at once that the material considerations to which the Minister is
entitled and bound to have regard in deciding the appeal must be considerations
of a planning nature. I find it impossible, however, to accept the view that
such considerations are limited to matters relating to amenity. So far as I am
aware, there is no authority for such a proposition, and it seems to me to be
wrong in principle. In principle, it seems to me that any consideration which
relates to the use and development of land is capable of being a planning
consideration. Whether a particular consideration falling within that broad
class is material in any given case will depend upon the circumstances.
In Collis
Radio Ltd v The Secretary of State for the Environment [1975] 29 P
& CR 390, the Divisional Court held that a consideration which could
properly be taken into account was that if a particular application was allowed
it might be difficult to resist a proliferation of applications.
In Luke (Lord)
of Pavenham v Minister of Housing and Local Government [1968] 1 QB
172, the issue was whether planning permission should be given for a new
building within a garden situated in a village where the council’s policy was
to preserve the size and character of the village unaltered. The local planning
authority refused planning permission. The inspector at the local inquiry
reported that a well-designed house in the position proposed would not harm the
countryside, but nevertheless the minister dismissed the appeal to him and
though his decision was quashed by Mr Justice Lawton it was restored by this
court. Lord Denning MR said at p 192, letter F: "This is planning policy,
and nothing else. The courts have no authority to interfere with the way the
minister carries it out."
These cases do
indeed show the great variety of kinds of consideration that the Secretary of
State can properly take into account. They certainly indicate that he cannot
confine his attitude to the question of whether the character of the building
or the proposed building is objectionable in itself or whether the use proposed
to be made of it is detrimental to the amenities. On the other hand, it is
right to say that in none of the cases I have cited so far was the desirability
of preserving the existing permitted use taken into account.
In 1975 two
applications were made by Granada Theatres Ltd for planning permission to
change the use of a cinema at Dartford and another at Bishop’s Stortford to
bingo halls. In each case the local planning authority refused planning
permission and there were appeals to the Secretary of State. In the Dartford
case the Secretary of State allowed the appeal on the ground that refusal of
planning permission for bingo could not ensure continued use as a cinema. On
the same day, the Secretary of State dismissed the appeal in the Bishop’s
Stortford case as a result of a petition by numerous children for the retention
of the cinema. The main reason why the planning permission was sought was that
the cinema had been uneconomical. The decision letter said: "After careful
consideration of all the evidence, however, it has been concluded on balance
that the council’s decision refusing permission on grounds of local amenity
should be upheld in present circumstances." The application to quash that decision came
before His Honour Judge Stabb sitting as a deputy High Court Judge. The
proceedings are reported in [1976] JPL 96. We have also been provided with a
transcript. The hearing was very short. Mr Dobry, for the applicants, explained
the grounds on which he relied. One was that the Secretary of State’s decision
was based upon the mistaken view that the refusal of the permission would
ensure the use of the building as a cinema. The other was that the Secretary of
State had acted contrary to the rules of natural justice in that he had taken
into account the petition without giving the applicants an opportunity to
comment on it. Mr Woolf, on behalf of the Secretary of State, consented to the
decision being quashed on both grounds. So far as the first ground was
concerned, he said that the Secretary of State accepted that planning control
could not be used to force the continuation of a use of premises for any
particular purpose and he accepted that the decision letter was ambiguous and
could be interpreted as having that effect.
That decision
is in no way binding on this court. Any persuasive force it would have is
greatly lessened by the circumstances. There was an alternative and conclusive
ground for quashing the order, so that the ground relevant in the present case
may not have been given the full consideration it otherwise would have had. The
proposition that planning control could not be used to enforce a particular use
was a correct one and, while I doubt whether the decision letter could really
be interpreted as an attempt to enforce such a use, it was on the basis of the
concession that it could be so interpreted that the order to quash was made. In
the Journal of Planning and Environment Law there is appended to the
report an anonymous comment describing it as a "remarkable and important
decision." The comment adds:
"In practice from a local planning authority’s point of view, the
cessation of a particular use may have as significant consequences as the
commencement of another use."
The fact that
the refusal of planning permission for a change of use cannot ensure that a
current use which is a permitted use will continue was, as already indicated,
the ground of the refusal of planning permission in the case of the Dartford
cinema. It is equally true that whereas in the present case the permitted use
has not been started, the refusal of an application to change of use cannot
ensure that permitted use will ever be started. This was a point strongly relied
on. I do not find it a compelling argument. The need for housing is certainly a
planning consideration. If permission is given for office use, the permission
will almost certainly be implemented and the building will be unavailable for
housing. If permission for office use is refused, there is at least a fair
chance that the building will be used for housing rather than being allowed to
stand empty.
That the
desirability of preserving an existing use is a regular ground for the refusal
of planning permission was, Mr Woolf said, shown by the fact that planning
permission to build is frequently refused on the ground that land on which it
is sought to build is agricultural land. Mr Mann contends that such a
consideration is relevant only where there is a policy established by the
development plan. Thus, the London County Development Plan contains a provision
that permission will not, except in very special circumstances, be given for a
change from residential use. I can see no reason why either the local planning
authority or the Secretary of State should have to look for considerations of
policy only to the development plan. That is to ignore the
of his argument: "If there were an application for permission to set out a
little park on land on which at the time of the application there were three
occupied houses, must the Secretary of State confine his attention to the
merits of the park and disregard the loss of useful housing accommodation?" Mr Mann, consistently with his argument, had
to answer "Yes" and added that the right way to deal with the
situation would be by way of compulsory acquisition of the site. I can see nothing
in the wording of section 29 to compel this result and to my mind it makes much
better sense of the section to interpret it as imposing no such restriction on
the matters being considered.
As an
alternative, in case his broad argument fails, Mr Mann contends that on the
particular facts of this case planning permission should not have been refused.
The facts relied on are these. There are no existing flats. There was no
finding that permission for eight flats would be implemented. The applicant’s
case, not refuted in the respondent’s case, was that flats would be
uneconomical. The finding as to housing need was that the need was in the
public sector whereas the flats would be in the private sector. There was no
evidence that the local authority would acquire the property so as to bring the
flats into the public sector. These matters do not, in my opinion, make the
housing consideration immaterial. Miller House was erected in pursuance of
planning permission for office use in the western half and residential use in
the eastern half. This was a device in order to get office accommodation
quickly. It is not to be supposed that it was intended that the eastern half
should remain permanently empty. Whether buyers would be obtained would depend
on the price asked and there is no finding that the owners would be likely to
leave the flats unoccupied indefinitely rather than reduce the price
sufficiently to find buyers. The Secretary of State must have taken the view
that the provision of additional flats in the private sector would give some
relief to the public sector or alternatively that if the flats were not
fulfilling a useful purpose in private hands there might be compulsory
acquisition.
I treat with
the greatest respect the judgment of Willis J in such a matter as this, but
despite the clear and forceful arguments by Mr Mann in support of that
judgment, I have reached the conclusion that the learned judge’s decision was
wrong and that this appeal should be allowed and the decision of the Secretary
of State restored.
Agreeing, SHAW
LJ said: With all due respect to the great experience and high authority of the
learned judge in this field, I find it impossible as well as inexpedient to
read into the wording of section 29(1) of the Act of 1971 a restricted meaning
which would make a desirability of preserving an existing permitted use
irrelevant or immaterial in relation to applications for a change of use.
For the
reasons which have been fully stated in the judgment of Sir David Cairns, I
would allow the appeal.
Also agreeing,
STEPHENSON LJ said: I cannot think that Willis J would have reached the
decision to which he came had it not been for two things. The first is the fact
that the permitted use of the eastern block resulted from what the learned
judge called a "perfectly legitimate device," and secondly the decision
in the Granada case to which Sir David Cairns has referred. As regards
the first consideration, I would accept Mr Woolf’s submission that the planning
authority was presented with a bonus which was a relevant consideration under
section 29. As regards the second, I fully agree with the comments upon that
case and in particular upon the note to that case which has fallen from my
Lord.
The appeal
was allowed with costs in the Court of Appeal and the court below and the
decision of the Secretary of State restored. Leave to appeal to the House of
Lords was refused.