Appellants intending to convert London property – Council serving enforcement notices alleging change of use from residential accommodation to temporary sleeping accommodation – Whether change of use exempt from section 25 of Greater London Council (General Powers) Act 1973 – Appeals dismissed
The appellant wished to convert 55 Park Lane, London, a large 1930s custom-built block of flats previously used for normal residential occupation, into luxury accommodation for short-term visitors for business or other purposes. Westminster City Council’s planning policy was to protect existing housing stock, to secure the maximum residential accommodation and to permit changes from residential to other uses only in the most exceptional circumstances. Policy H2A of the unitary development plan provided: “The City Council will normally refuse planning permission for the use of residential accommodation as temporary sleeping accommodation and will be vigilant in taking enforcement action against such uses.”
The policies were reflected in section 25 of the Greater London Council (General Powers) Act 1973 (as amended), under which the use as temporary sleeping accommodation of any residential premises in that area of Greater London involved a material change of use for the purposes of what was, at that time, section 22(1) of the Town & Country Planning Act 1971 and, subsequently, section 55(1) of the consolidating Act of 1990.
In reliance on section 25 of the 1973 Act, the council served an enforcement notice for each flat, alleging change of use from permanent residential accommodation to use for short letting purposes within the meaning of the 1973 Act. The notices required the appellant within three months to cease using the flats in this way. Two appeals made by the appellant, on the grounds that planning permission ought to be granted, that there was no breach of planning control and that a longer time for compliance should be permitted, were dismissed. The appellant accepted that the flats were residential premises and that the change of use was to temporary sleeping accommodation. However, it was contended that, by virtue of section 55(2)(f) of the 1990 Act, a change of use of land from a purpose of any class to another purpose of the same class was not to be taken to involve development of land. It was submitted that the Town and Country Planning (Use Classes) Order 1987 (UCO) applied, under which the lawful use of the flats as “dwelling-houses” fell into the same class as temporary sleeping accommodation. Therefore, it was submitted, development had not occurred and section 25 of the 1973 Act did not apply. It was accepted that until the 1987 UCO, section 25 of the 1973 Act would have succeeded in bringing within planning control the material change of use complained of, namely temporary sleeping accommodation, and that the interpretation of the 1987 UCO contended for by the appellant would have the effect of emasculating section 25 of the 1973 Act.
Held: The appeal was dismissed.
Section 25 of the 1973 Act was entirely unaffected by the subsequent statutory activity. First, it had not been repealed, either expressly or by implication. Section 25 was a provision in primary legislation and its only purpose was to require that, in Greater London, planning permission was required for the change of use from residential to temporary accommodation. The UCO was secondary legislation, and the general rule was that specific statutory rights, such as section 25, were not cut down by subordinate legislation passed under the vires of a different Act. Secondly, even if the UCO had the force of primary legislation, it could not have affected section 25 because of the presumption that, where the literal meaning of a general enactment covered a situation for which specific provision was made by an earlier enactment, the situation was intended to continue to be dealt with by the specific provision rather that the later general one. Thirdly, it was clear that neither the draftsman of section 25, nor those who subsequently had to consider it in 1983, 1987 and 1990, had ever intended section 25 to be emasculated. Accordingly, it could be concluded that section 25 made “the use as temporary sleeping accommodation of any residential premises in Greater London… a material change of use”. When construing the uses of land permitted by section 55(2)(f) of the 1990 Act, as an exception to section 25 of the 1973 Act, use as temporary sleeping accommodation had to be construed as applying only to uses outside Greater London.
David Mole QC (instructed Hammond Suddards) appeared for the appellant; Philip Sales (instructed by the Treasury Solicitor) appeared for the first respondent; David Holgate QC (instructed by the solicitor to Westminster City Council) appeared for the second respondents.
Thomas Elliott, barrister
