Listed building — Planning permission for office use — Development plan’s priority on residential character — Material considerations — Statutory duty of decision-maker — Decision-maker failing to consider special features under section 66(1) of Listed Buildings Act 1990 — Appeal allowed
No 48 Park Street, London W1, lay within the Mayfair conservation area. The basement, ground and first floors had planning permission for use as offices and were occupied by an airline company. There was a vacant flat on the second floor and an occupied maisonette on the third and fourth floors. The freehold was held by the Grosvenor Estate. Planning permission was granted for continued office use of the basement and ground floors of the building beyond 1990 and reversion of the first floor to residential use. The permission was subject to a section 52 agreement for the first-floor residential conversion, which was to be carried out within two years of approval of a conversion scheme. The plaintiffs held the headlease of the property until 2009 and sought temporary planning permission until then for the continued use of the first floor as offices.
The development plan for the area comprised the adopted 1982 district plan and the draft unitary development plan (UDP) deposited in 1991. Those plans placed the highest priority on providing residential accommodation and contained a specific temporary office policy. In relation to Mayfair the adopted policy required that renewal would not normally be granted at the expiry of temporary planning permission for office use. Reversion to residential use was required except where it could be shown that the premises could not be used or adapted for residential occupation. The substance of that policy was restated in the emerging UDP. Detailed criteria on practicable residential adaptation were whether: (1) residential conversion was physically possible; (2) it would result in an acceptable residential environment; and (3) the special quality of listed buildings would be seriously affected. The inspector concluded that there was no special circumstance which permitted an exception to the temporary office policy and refused planning permission.
Held The appeal was allowed and the matter was remitted for reconsideration.
1. Section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990 provided that in considering whether to grant planning permission for development which affected a listed building or its setting, the decision-maker should pay special regard to the desirability of preserving the building or its setting or any special architectural or historic interest which it possessed.
2. Section 54A of the Town and Country Planning Act 1990 provided that where, in making any determination under the Planning Acts, regard was to be had to the development plan, the determination should be made in accordance with the plan unless material considerations indicated otherwise.
3. Both provisions had to be observed by the decision-maker. However, it was far from clear that section 66(1) was applied. The inspector’s own findings indicated that he had applied the development plan test, but had not considered the different test under section 66(1). On the balance of probabilities the inspector was in breach of his statutory duty in the approach he adopted and the matter should be remitted for reconsideration.
Robin Purchas QC and Suzanne Ornsby (instructed by Tringhams) appeared for the applicants; Rhodri Price Lewis (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment; Timothy Corner (instructed by the solicitor to Westminster City Council) appeared for the second respondents.
