A Kensington property owner who claimed his neighbour had exploited a loophole to secure planning permission to convert office premises into residential accommodation, together with a new basement extension, has won a ruling quashing the decision.
As a result, neighbour Zipporah Lisle-Mainwaring says that – if she succeeds in securing a fresh permission – it will cost her hundreds of thousands of pounds more to build a smaller extension than she would have been able to, as a result of the Royal Borough of Kensington and Chelsea’s new policy on basement developments.
Lisle-Mainwaring had sought to have the planning permission upheld, even after the communities secretary took the decision not to defend his inspector’s decision last July to grant consent for a change of use of the three-storey 19 South End, London W8, from Class B8 (storage and distribution) to residential, as well as construction of the subterranean extension.
Niall Carroll, of 18 South End, successfully claimed that the inspector had wrongly gone ahead and treated the existing use as B8, rather than B1, without informing interested parties and giving them the opportunity to make representations on the point.
On behalf of Carroll, Richard Harwood QC argued that Lisle-Mainwaring, in claiming that the true use of 19 South End was B8 rather than B1, was seeking to exploit a “loophole” in Kensington and Chelsea’s core strategy, and avoid policy protections aimed at preventing conversion of offices to residential accommodation.
Though she accepted that at the time of the initial refusal by Kensington and Chelsea, in July 2013, the site was B1 office use, her agents informed the planning inspectorate in May 2014 that it was by that point in B8 use.
Quashing the decision, Supperstone J said: “In my judgment the first defendant acted unfairly in failing to give the claimant an opportunity to comment on whether there had been a change of use from B1 to B8 and the merits of the appeal if the proposal was considered as B8 to C3, rather than B1 to C3. I agree with Mr Harwood that the effect of the change in the basis of the appeal from B1 to B8 was so significant that the inspector should have brought it expressly to the attention of the claimant and given him an opportunity to make representations.
“I accept Mr Harwood’s submission that substantial prejudice was caused to the claimant because if he had been given the opportunity to make representations on whether the building was in B8 use and on the merits of a change from B8 to C3 he could have made a number of points that, in my view, may have affected the outcome of the appeal.
He said that the inspector acted unlawfully in amending the description of the development sought, with the result that the appeal was “determined on a different basis without first giving the claimant an opportunity to comment on the change or its effect”.
He ruled that Carroll had “suffered substantial prejudice”, and rejected Lisle-Mainwaring’s claim that the permission should not be quashed because of the prejudice she would suffer because any renewed application after the adoption of Kensington and Chelsea’s new policy on basements would have to take it into account. This, she claimed, would mean that the building will need to be redesigned and it will “cost hundreds of thousands of pounds to build a lesser building than she is able now to build”.
Finding that she shared a substantial part of the blame for the errors in the appeal process, as her agents only informed the inspector late in the day that the building was in B8 use rather than B1, the judge said: “ I reject the third defendant’s contention that any prejudice to herself from the changes in basement policy should displace the normal principle that unlawful decisions should be quashed.”
Lisle-Mainwaring submitted a second planning application in December 2013 for demolition of the existing building and change of use from B8 to C3 residential. Council members rejected an officer’s recommendation and refused that application.
The judge said that, last month, an inspector granted a second planning permission on appeal, and a further challenge to that decision is pending.
But the judge said: “In my judgment the second appeal decision is so influenced by the first appeal decision that it is not possible to conclude that if the first decision had been different the same result would have been reached in the second appeal.”
Carroll v Secretary of State for Communities and Local Government Planning Court (Supperstone J) 17 February 2015
Richard Harwood QC (instructed by Mishcon de Reya) for the claimant
Timothy Morshead QC (instructed by Richard Max & Co LLP) for the third defendant
