A London judge ruled today on what he described as a “cautionary tale about how not to submit a planning application and its consequences”.
The dispute centres on the empty space directly above a penthouse flat in Westminster and is between the long leaseholder of the flat and its freeholder.
The flat, Flat 10 in apartment block 23-25 Mortimer Street, is owned by the claimant, Alan Bishop, under a 999-year lease that started in 1998.
According to the judgment, in 2016 Bishop obtained planning permission to extend his flat upwards. However, he failed to identify in their application that they were not the owners of the area above their flat and, after discussion with the freeholder, Mortimer London Ltd, he did not continue with the project.
However, in January Mortimer “appears to have instructed” a firm of architects to submit a planning application to build a new flat on top of Bishop’s penthouse, the judge, Charles George QC, said in the ruling.
The application was submitted in the name of “Mr Ullah” who was an associate of Mortimer. Ullah’s address was given as “Flat 10, 23-25 Mortimer Street”. The application certified that “nobody except myself/the applicant [is] the owner of any part of the land to which the application relates”.
“Owner” was defined as a person with a freehold or leasehold interest with at least seven years left on the lease.
The plans attached to the application showed that parts of the planned development included space demised to Bishop, the real leasehold owner of Flat 10.
An application notice was not served on Bishop or Flat 10. He found out about the plans until April 24 when a structural engineer working on the project visited the flat.
The next day, Bishop called the council to find out what had happened. He was told that he had not been send a consultation letter because the application stated that no lease longer than seven years was affected. The representative of the council said he had assumed Bishop had sold the flat.
Bishop said that his lease had 980 years to run, and that he had not sold the flat. The council representative, according to the judgment, said he would make some telephone calls. He called Bishop back later that same day to say that the freeholder had been instructed his agent to make the seven years statement. The council representative then said he was going on annual leave until 10 May, and would discuss it further then.
On 10 May, Bishop called the council representative and was told that “there was nothing” the representative “could do about the application, and asked him if he was considering a judicial review”.
By this time, the six-week deadline for submitting a judicial review claim was only seven days away, so Bishop instructed his solicitors to bring a judicial review without engaging the pre-action protocol.
The claim for judicial review was brought on two grounds. Firstly, it claimed that the applicant should have informed Bishop about the planned development. Secondly, it argued that the council should have notified Bishop about the application.
The council, according to the ruling, consented to the quashing of the planning permission on the first point, but not on the second.
In his ruling today, the judge did the same thing. He said that “even if the failures” of the freeholders “fell short of fraud/dishonesty, they constituted reckless behaviour.” He said that planning permission must be quashed.
However, the judge said that the council representative had a “wholly reasonable belief” that Flat 10 had been sold, and the application was being made by its new owner. There was not any “conspicuous unfairness” about the way the council acted, he said.
Alan Bishop v Westminster Council
Administrative Court (Charles George QC) 15 December 2017
