‘Material considerations’ — Abolition of Greater London Council — Application for planning permission to use County Hall for hotel, residential and general office use — Inspector finding need to retain main block for London governmental use — Secretary of State rejecting recommendation and granting permission for general office use — Whether Secretary of State applied correct test — Whether competing needs appropriate test — Town and Country Planning Act 1971, section 29(1)
County Hall in
London had been used for local government and related purposes since it was
built, first by London County Council and then by the Greater London Council
(‘GLC’). It comprised four blocks, the Main Block, the North Block, the South
Block and the Island Block. On the abolition of the GLC by the Local Government
Act 1985, County Hall became vested in the London Residuary Body (‘LRB’). Three
local government bodies, the Inner London Education Authority (‘ILEA’), the
London Fire and Civil Defence Authority (‘LFCDA’) and the London Waste
Regulation Authority (‘LWRA’), were entitled to use parts of County Hall for
such periods as the LRB should determine. The 1985 Act empowered the LRB to
dispose of any land held by them in such manner as they wished and, further,
required them to dispose of any land not required by them for carrying out
their functions. The LRB gave notice to the three bodies requiring vacant
possession by March 31 1988, and in October 1986 they applied to the local
planning authority, Lambeth London Borough Council (‘Lambeth’), for planning
permission to develop the Main Block for mixed hotel, residential and general
office use and the other blocks for general office use. At the same time they
submitted an application under section 53 of the Town and Country Planning Act
1971 (section 64 of the Town and Country Planning Act 1990) for a determination
that the future use of the County Hall complex as offices would not constitute
or involve development of the land. Lambeth failed to decide the applications
within the prescribed period and the LRB appealed to the Secretary of State for
the Environment under section 37 of the 1971 Act. The appeals were opposed by Lambeth,
ILEA, LFCDA and LWRA.
The inspector
appointed by the Secretary of State recommended dismissal of the appeal on the
section 53 application, taking the view that a change of use to office purposes
unrelated to local government would constitute a material change of use. He
recommended that planning permission be granted for office use of the complex
other than the Main Block but that the application in respect of the Main Block
be refused on the ground that a compelling need to retain it for London governmental
use outweighed any need to put it to office use. By his decision letter dated
October 20 1987 the Secretary of State accepted the inspector’s recommendation
on the section 53 application and on the parts of County Hall other than the
Main Block but rejected in part his recommendation in respect of the Main Block
and granted conditional planning permission for general office use, though not
for hotel and residential use. LRB appealed to the High Court under section 247
of the 1971 Act against the Secretary of State’s section 53 determination;
Lambeth and the statutory bodies occupying the complex applied under section
245 of the 1971 Act to quash the decision to grant planning permission for
office use of
had failed to apply the correct test in weighing the need to preserve the
existing use against the need for and desirability of the proposed new use and
that he had failed to give adequate reasons for his decision.
On March 28
1988 Simon Brown J ([1988] 2 PLR 79) dismissed the appeal under section 247 but
allowed the applications under section 245 on the sole ground that the
Secretary of State had failed to give proper reasons for his decision as
required by rule 13 of the Town and Country Planning (Inquiries Procedure)
Rules 1974 (SI 1974 No 419). LRB appealed to the Court of Appeal against the
dismissal of their section 247 appeal and both the LRB and the Secretary of
State appealed the decision in relation to the section 245 application. On July
20 1989 the Court of Appeal ([1989] 3 PLR 105) allowed the section 247 appeal
but dismissed the section 245 appeals holding, contrary to the view taken by
Simon Brown J, that while the Secretary of State’s reasoning was adequately
stated in his decision letter, he had not properly applied the competing needs
test in determining whether planning permission for general office use should
be granted. LRB appealed further to the House of Lords against the dismissal of
their appeal under section 245. The respondents to the appeal were Lambeth and
ILEA.
The only legal
requirement to be followed by a local planning authority or, as the case may
be, by the Secretary of State in determining a planning application was that
prescribed by section 29(1) of the Town and Country Planning Act 1971 (section
70(2) of the 1990 Act), namely to have regard to the provisions of the
development plan, so far as material to the application, and to any other
material considerations. The amount of weight to be given to any material
consideration was a matter for the judgment of the Secretary of State: see pp
7D and 11 A-B. The desirability of preserving an existing use of land is a
material consideration under section 29(1), provided there is a reasonable
probability that such use will be preserved if permission for the new use is
refused, but there was no warrant in the authorities for the view that a
competing needs test existed in law and fell to be applied as a matter of legal
obligation: see pp 7G-8C and 11A. It was a matter for the Secretary of State to
form his own judgment whether any planning objections were of sufficient
importance to overcome the presumption in favour of development: see p 8C-D.
The Secretary of State had taken into account all relevant considerations and
he was entitled to decide, in the exercise of his judgment, that any need to
retain the Main Block for the use of ILEA and the other bodies was not
sufficiently important to justify refusing planning permission: see p 7E-F.
Decision of
the Court of Appeal [1989] 3 PLR 105 reversed in part.
to in the opinions
Clyde
& Co v Secretary of State for the
Environment [1977] 1 WLR 926; [1977] 3 All ER 1123; (1977) 75 LGR 660; 35
P&CR 410; [1977] EGD 892; 244 EG 1024, [1977] 2 EGLR 148; [1977] JPL 521,
CA
Westminster
City Council v British Waterways Board
[1985] AC 676; [1984] 3 WLR 1047; [1984] 3 All ER 737; (1984) 83 LGR 113; 49
P&CR 117; [1984] EGD 213; 272 EG 1279, [1984] 2 EGLR 109; [1985] JPL 102,
HL
Appeal against
decision of the Court of Appeal
This was an
appeal by the appellants, the London Residuary Body (‘the LRB’), by leave of
the Court of Appeal, against that part of the decision of the Court of Appeal
(Slade, Lloyd and Stocker LJJ) ([1989] 3 PLR 105) on July 20 1989 dismissing an
appeal by the LRB against an order of Simon Brown J dated March 28 1988 ([1988]
2 PLR 79) whereby he had granted applications under section 245 of the Town and
Country Planning Act 1971 by, inter alia, the present respondents,
Lambeth London Borough Council and the Inner London Education Authority, to
quash a decision of the Secretary of State for the
State had rejected his inspector’s recommendation, in an appeal against a
deemed refusal of planning permission by the local planning authority, and had
granted planning permission for the change of use of County Hall to office use.
Carnwath QC and John Howell (instructed by Linklaters & Paines) appeared
for the appellants, the London Residuary Body.
Fitzgerald QC and John Hobson (instructed by the chief solicitor to Lambeth
London Borough Council and the solicitor to the Inner London Education
Authority) appeared for respondents.
Their lordships
took time for consideration.
following opinions were delivered.
LORD KEITH
OF KINKEL: My lords, this appeal is concerned with
a contest about planning permission for general office use of the Main Block of
County Hall, formerly the seat of the Greater London Council (‘the GLC’). The
GLC was abolished by section 1 of the Local Government Act 1985, and by virtue
of article 14 of the Local Government Reorganisation (Property etc) Order 1986
County Hall was vested in the London Residuary Body (‘the LRB’). Under article
11 of that order three bodies were entitled to use parts of County Hall for
such periods as the LRB should determine. These bodies were the Inner London
Education Authority (‘ILEA’), the London Fire and Civil Defence Authority
(‘LFCDA’) and the London Waste Regulation Authority (‘LWRA’). By para 7(2) of
Schedule 13 to the Act of 1985 the LRB were empowered to dispose of any land
held by them in such manner as they wished and further were required to dispose
of any land not required by them for carrying out their functions. Except with
the consent of the Secretary of State, any such disposal, otherwise than by way
of short tenancy, was required to be for a consideration not less than the best
that could reasonably be obtained. By section 67 of the Act of 1985 the LRB
were required, subject to certain exceptions, to use their best endeavours to
secure that their work was completed as soon as practicable and in any event by
April 1 1991.
The LRB gave
notices to ILEA, LFCDA and LWRA determining the periods for which they were
entitled to occupy parts of County Hall on various dates between March 31 1987
and March 31 1988. An application by ILEA for judicial review of the notice
relating to it failed both in the Divisional Court and in the Court of Appeal.
In October
1986 the LRB presented to Lambeth London Borough Council (‘Lambeth’) as local
planning authority various applications for planning permission related to
County Hall. County Hall comprises the Main Block, the North, the South and the
Island Blocks and the Addington Street Annexe. For the main block the LRB
sought permission to develop for mixed hotel, residential and general purpose
office use and for the other blocks they sought permission for general office
use. At the same time the LRB submitted applications for determination under
section 53 of the Town and Country Planning Act 1971 whether the use of the
whole of County Hall (apart from the Addington Street Annexe) for office
purposes unrelated to any local government use would constitute development of
land so as to require planning permission under Part III of the Act of 1971.
Lambeth failed to make a decision on the various applications within the
prescribed period, and so the LRB appealed to the Secretary of State under
section 37 of the Act of 1971 as though the applications had been refused. The
LRB’s appeals were opposed by Lambeth, ILEA, LFCDA and LWRA.
A public local
inquiry beginning on April 28 1987 was held by Mr David Keene QC as inspector
appointed by the Secretary of State for the Environment. Mr Keene reported on
August 25 1987. He recommended that
that the use of County Hall or any part of it for office purposes unrelated to
local government would constitute a material change of use. As regards the
appeals on the planning applications, Mr Keene recommended that the
applications for permission to use for general office purposes the parts of
County Hall other than the Main Block should be refused. He took the view that
there was a compelling need that the Main Block should be retained for London
governmental use.
In a decision
letter dated October 20 1987 the Secretary of State accepted the inspector’s
recommendation on the section 53 applications and on the parts of County Hall
other than the Main Block. As to the Main Block, however, he rejected in part
the inspector’s recommendation and granted conditional planning permission for
use for general office purposes, though not for hotel and residential use.
There were
then appeals to the High Court by Lambeth, ILEA, LFCDA and LWRA on the one hand
and by the LRB on the other hand. The LRB appealed under section 247 of the Act
of 1971, seeking to have the Secretary of State’s decision on the section 53
application set aside. The other bodies appealed, under section 245 of the same
Act, for a quashing of the Secretary of State’s decision to grant planning
permission for the Main Block. The Secretary of State was one of the
respondents to both appeals. In the High Court Simon Brown J on March 28 1988
gave judgment dismissing the LRB’s appeal under section 247 and allowing the
appeal of the other bodies under section 245 [[1988] 2 PLR 79]. The sole ground
upon which he allowed the latter appeal was that the Secretary of State’s
reasoning was not adequately stated in his decision letter. He rejected various
other contentions of the appellants, in particular the contention that the
Secretary of State had misdirected himself in law as to the nature and correct
application of the true test of determining whether or not planning permission
should be granted. The LRB and the Secretary of State appealed to the Court of
Appeal. At this stage LFCDA and LWRA dropped out of the proceedings. On July 20
1989 the Court of Appeal (Slade, Lloyd and Stocker LJJ) gave judgment [[1989] 3
PLR 105]. They allowed the appeal under section 247 by the LRB upon the section
53 applications, setting aside the Secretary of State’s determination and
remitting the matter to him for reconsideration in the light of the opinions of
the court. On the other hand they dismissed the appeals by the LRB and the
Secretary of State under section 245 holding, contrary to the view taken by
Simon Brown J, that while the Secretary of State’s reasoning was adequately
stated in his decision letter, yet he had not properly applied the correct test
for determining whether planning permission for general office use should be
granted.
The LRB, with
leave granted by the Court of Appeal, now appeal to your lordships’ House
against the Court of Appeal’s dismissal of their appeal under section 245. The
Secretary of State has dropped out. Lambeth and ILEA, jointly represented, are
respondents. No appeal is taken by them against that part of the Court of
Appeal’s order which dealt with the section 53 applications, nor do they
challenge that court’s finding on the adequacy of the Secretary of State’s
reasoning.
Section 29(1)
of the Act of 1971 is the provision which empowers local planning authorities
to grant planning permission. It provides:
Subject to
the provisions of sections 26 to 28 of this Act, and to the following
provisions of this Act, 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,
considerations, and —
(a) subject
to sections 41 and 42 of this Act, may grant planning permission, either
unconditionally or subject to such conditions as they think fit; or
(b) may
refuse planning permission.
Section 36 of
the Act deals with appeals to the Secretary of State against a refusal of
planning permission. Subsection (5) provides that, inter alia, section
29(1) shall apply in relation to such an appeal as it applies in relation to an
application for planning permission which falls to be determined by a local
planning authority.
It is to be
observed that section 29(1) does not lay down any legal requirement to be
followed by the local planning authority, or, as the case may be, by the
Secretary of State in determining an application for planning permission, other
than that of having regard to the provisions of the development plan and to any
other material considerations.
The inspector,
however, in arriving at his recommendation against the grant of planning
permission for general office use of the Main Block, applied what may be
described as a ‘competing needs’ test. In his summary of conclusions he
expressed the matter thus:
5.5 So far as the proposed change of use of the
Main Building to office use is concerned, the damaging consequences of that
proposal are more limited. It need not cause harm to the character of the
building as a listed building, although it should be made clear that modern,
efficient office floorspace is most unlikely to be created without causing such
significant harm. The office use would for this reason have to be of a similar
style to that which currently exists in the office-type parts of this building.
No valid office policy objections exist to such a use, as has already been
indicated, nor would there be harmful consequences for the locality.
5.6 The issue therefore on the proposal to change
the use of the Main Building to an office use is one of competing needs. Not
only was there no evidence of any significant need for more office floorspace
in this locality, but the LRB’s own advisers have cast doubt on the suitability
of this building for providing efficient office floorspace. It seems quite
clear that the need to continue the existing use of the building outweighs any
need to put it to an office use, and I so conclude. Indeed, there was some
suggestion at one stage that it might perhaps be right to grant the planning
permission sought, because so limited would be the demand for office floorspace
here by outside bodies that organisations such as ILEA would be able
successfully to bid for the building in the open market. I cannot see that this
can be a proper reason for granting permission. Logically it cannot be right to
grant permission for use A, despite a need for use B, simply because it seems
unlikely that permission for use A would be implemented.
5.7 In the event, I conclude that the application
to use the Main Building for office purposes should be refused . . .
In his
decision letter the Secretary of State, under the heading Need to preserve
the existing use, said:
The Secretary
of State notes the significance which the Inspector attaches to this in his
conclusions.
In dealing
with the question as to whether the existing use is capable of being a material
planning consideration which may be sufficient to warrant refusal of an
application the Inspector referred to two tests. These are that:
i. the
need for and desirability of preserving the existing use outweighs on its
planning merits the need for and the desirability of the proposed new use or
uses;
ii. on
the balance of probability, if permission is refused for the proposed
use or uses, the land in dispute will be effectively put to the existing use.
On the latter
test the Secretary of State notes the inspector’s advice that, if planning
permission were refused, the space in County Hall could be taken up by bodies
such as the ILEA, the LFCDA and the LWRA.
He went on to
say that whether in planning terms the desirability of preserving the existing
use outweighed the merits of the proposed new uses was a matter of judgment and
balance and to consider the importance of the Main Block being retained for the
accommodation of ILEA and other successor bodies to the GLC and concluded:
To summarise
the Secretary of State agrees with the Inspector that the retention of an
existing use is capable of being a material planning consideration. He also
accepts that the accommodation of ILEA and other bodies in County Hall may meet
their requirements satisfactorily but, on the evidence, the Secretary of State
does not consider it to be the only means of meeting those requirements. He
therefore disagrees with the Inspector’s conclusion that there is an overriding
need for the Main Building to continue in its existing use.
The decision
letter continued under the heading Office Use — Main Block, North
Block, South Block and Island Block:
In
considering the applications for this and the other uses the Secretary of State
has had regard to the principle set out in Circular 14/85, para 3 quoted by the
Inspector. This is that:
There is therefore always a presumption
in favour of allowing applications for development, having regard to all
material considerations, unless that development would cause demonstrable harm
to interests of acknowledged importance.’
The Secretary
of State notes the inspector’s comment that the South Bank is identified in the
GLDP as a preferred location for offices and that one of the reasons for that
seems to have been because of its proximity to Waterloo Station and to
underground stations.
The Secretary
of State has also noted the inspector’s opinion that the need and demand for
office floorspace which the complex, excluding the Island Building, would
provide in this part of London is slight. However, he takes the view that the
question of need and demand is a matter to be determined by the market and is
anyway difficult to assess for a unique building such as this. Accordingly it
is not a matter to which he attaches any great weight in the context of these
appeals.
The Secretary
of State accepts the inspector’s advice that the proposed change of use of the
Main Building to offices, and the other office proposals for the complex, are
acceptable in listed building and conservation area terms. For the reasons set
out earlier the Secretary of State does not agree with the Inspector that the
advantage of retaining the Main Building for local government activities is an
overriding consideration and that office use should be refused on those
grounds. In his judgment such considerations on their own are not of sufficient
weight to result in refusal of the applications for offices in an area and in a
building suitable for such use. He accordingly considers that planning
permission for office use is justified.
Simon Brown J,
in the course of his judgment, expressed the opinion that the Secretary of
State, in making his decision, had accepted that it was correct to apply a
competing needs test, as reflected in the words ‘whether in planning terms the
desirability of preserving the existing use outweighs the merits of the
proposed new uses’. He went on to find that the Secretary of State had failed to
apply that test but to hold that it was not in any event a correct test to
apply. He observed that the test necessarily implied that provided only some
weight was to be attached to the desirability of retaining the existing use and
provided also that there was no weight to be found in the merits of the
proposed new use,
permission must necessarily be refused. This would mean that where there was no
such demonstrable need or desirability the presumption in favour of
development, referred to in the decision letter, would be overridden in any
case where there existed some desirability, however slight, in the retention of
the existing use. In effect, the Secretary of State had decided, as matter of
judgment, that the desirability of retaining the existing local government use
of the Main Block was not sufficiently important to overcome the presumption in
favour of allowing development.
The Court of
Appeal took the view that the competing needs test was the correct test to
apply in determining applications for planning permission and that it was only
in a situation where the competition was evenly balanced as between the
desirability of the existing use and that of the proposed new use that the
presumption in favour of permitting development could be allowed to prevail.
The Court of Appeal therefore held that the Secretary of State had misdirected
himself in law because he must necessarily have accepted, and indeed did
accept, that the desirability of retaining the existing local governmental use
strongly outweighed the desirability of general office use, and yet had allowed
the presumption to prevail.
The Court of
Appeal thus held that the competing needs test existed as a matter of law, so
as to impose a binding legal requirement upon the Secretary of State. My lords,
I have no doubt at all that the Court of Appeal themselves fell into an error
of law in so holding. All that section 29(1) of the Act of 1971 requires is
that the Secretary of State should have regard to the provisions of the
development plan, so far as material to the application, and to any other
material considerations. The amount of weight to be given to any material
consideration is a matter for the judgment of the Secretary of State. In the
present case the provisions of the development plan, so far as material, were
not inconsistent with general office development. Other material considerations
were the degree of desirability of retaining the existing local governmental
use, the degree of demand for general office use and of the desirability of
that use, and the policy presumption in favour of permitting a proposed
development. The Secretary of State took into account all these considerations.
He noted that the accommodation requirements of ILEA and the other bodies could
be met elsewhere and that the evidence of demand for general office use in the
locality was slight. At the end of the day he decided that any need to retain
the Main Block for the use of ILEA and the other bodies was not sufficiently
important to justify refusal of planning permission. That was a view which in
the exercise of his judgment he was fully entitled to take.
There is no
warrant in the authorities for the view that a competing needs test exists in
law and falls to be applied as a matter of legal obligation. In Clyde &
Co v Secretary of State for the Environment [1977] 1 WLR 926 it was
held that the desirability of retaining an existing use of land was a material
consideration proper to be taken into account under section 29(1) of the Act of
1971. In Westminster City Council v British Waterways Board
[1985] AC 676 this House, on a question under section 30(1)(g) of the Landlord
and Tenant Act 1954, held among other things that the board, as landlords of certain
premises, had established a reasonable prospect of success in their notional
application for planning permission for their intended use of these premises,
which was for a marina. The council had founded on the desirability of
retaining the existing use of the land, namely as a street cleansing depot, as
being a ground which made it unlikely that planning permission would be
granted. Lord Bridge of Harwich, in a speech concurred in by the rest of their
lordships, accepted, at p 682, that the desirability of preserving an existing
use
for a change of use. Later he said, at p 683:
In a contest
between the planning merits of two competing uses, to justify refusal of
permission for use B on the sole ground that use A ought to be preserved, it
must, in my view, be necessary at least to show a balance of probability that,
if permission is refused for use B, the land in dispute will effectively be put
to use A.
In my opinion
nothing in either the Clyde & Co case or in the Westminster
Council case is properly to be interpreted as laying down that the
competing needs test exists as a matter of law. Such a proposition would
involve putting an unwarranted gloss on the language of section 29(1) of the
Act of 1971. The most that can be extracted from the two cases is that the
desirability of preserving an existing use of land is a consideration material
to be taken into account under that subsection, provided there is a reasonable
probability that such use will be preserved if permission for the new use is
refused. If the Court of Appeal is right, it must follow that the presumption
in favour of development can in law receive effect only where other planning
considerations for or against a proposed use are evenly balanced. Such a
straitjacket cannot properly be imposed on the Secretary of State. It must be
left to him, in the exercise of a reasonable discretion, to form his own
judgment as to whether any planning objections are of sufficient importance to
overcome the presumption. This was the view taken, in my opinion correctly, by
Simon Brown J. It should be kept in mind that in the case of many individual
planning applications, for example to build a single house somewhere in the
country, there is no question of its being possible to prove a need for the
development. There may, however, be some planning objection to it which is not
of very great weight. In such a situation it must surely be open to the
determining authority to decide that the presumption may properly receive
effect and to grant planning permission.
My lords, for
these reasons I would allow this appeal.
LORD
BRANDON OF OAKBROOK: My lords, for the reasons
given in the speech of my noble and learned friend, Lord Keith of Kinkel, I
would allow the appeal.
LORD
TEMPLEMAN: My lords, by section 29(1) of the Town
and Country Planning Act 1971 as amended, a local planning authority and, on
appeal, the Secretary of State for the Environment, shall in dealing with an
application for planning permission:
. . . have
regard to the provisions of the development plan, so far as material to the
application, and to any other material considerations . . .
and may then
grant planning permission unconditionally or subject to conditions or may refuse
planning permission.
The principle
has been established and reaffirmed by Government circulars that:
There is
always a presumption in favour of allowing applications for development, having
regard to all material considerations, unless that development would cause
demonstrable harm to interests of acknowledged importance. (Circular 14/85,
para 3)
That principle
does not fetter the wide discretion conferred by section 29(1) of the Act of
1971 but assists uniformity of approach and protects the interests of
individual owners and developers. A proposed development may cause both
demonstrable good and demonstrable harm. For example, a developer may wish to
construct houses in an area of housing shortage on a playing field in an
area where there is also a shortage of recreational facilities. In that case
the planning authority must make up their mind as to the relative strengths of
the competing needs for houses and playing fields. The authority cannot
abdicate their responsibility by permitting housing merely because the
developer wishes to construct houses. But it is for the planning authority and
not the courts to weigh up the planning advantages and disadvantages of the
existing use and the proposed use of the land in question.
The subject of
the present appeal is the main building of the complex of buildings known as
County Hall. The complex was constructed for the accommodation of the London
County Council and was subsequently occupied by the Greater London Council
(‘the GLC’). The main building occupies 7.06 acres and provides over 900,000 sq
ft net internal floor space. Most of the floor space consists of offices but on
the first and principal floor there are splendid rooms including a council
chamber, an ambulatory and conference hall and committee rooms. County Hall was
purpose built and was eminently suitable for use by a large local authority for
their public functions and for their administrative functions. The planning
applications with which this appeal are concerned are applications to change
the use of the main building from offices for the purposes of local government
to use for offices generally. There are other applications for the use of
County Hall, or parts of County Hall, as an hotel but these applications are
not relevant to this appeal.
On April 1
1986 the GLC was abolished and their functions dispersed between other
organisations, principally to the London boroughs each of which occupy premises
in their own locality. By the Local Government Act 1985 and orders made
thereunder, the assets of the GLC, including County Hall, were vested in the
appellants, the London Residuary Body (‘LRB’). The Act imposed on the LRB a
duty to dispose of any land which was not required for the functions of the LRB
and such disposal must be at the best price reasonably obtainable. The LRB must
use their best endeavours to complete their work by March 31 1991, whereupon
the LRB will also disappear. So Parliament decided to get rid of the GLC and to
sell all their assets. To obtain the best price the lands of the GLC, including
County Hall, must be sold with vacant possession. By para 11 of the Local
Government Reorganisation (Property etc) Order 1986, the occupiers of County
Hall at the date of the abolition of the GLC became entitled to continue in
occupation as licensees but not as tenants. This gave the LRB power to obtain
vacant possession of County Hall for the purposes of sale. The LRB, in
pursuance of their duty, have given notice to all the occupiers to leave County
Hall and have entered into a contract to sell County Hall to a private
developer with vacant possession. Your lordships have not seen the contract but
were informed that the price depends on the grant and the date of grant of
planning permission, in particular the grant of planning permission for County
Hall to be used for office purposes generally. Applications in relation to the
whole of County Hall, with the exception of the main building, have been
granted.
The occupiers
of the main building, apart from the LRB, are the respondents, the Inner London
Education Authority (‘ILEA’), the London Fire and Civil Defence Authority
(‘LFCDA’) and the London Waste Regulation Authority (‘LWRA’). ILEA ceased to
exist on March 31 1990 and each borough council will, generally speaking, be
responsible for education in their own area. The LFCDA occupies 10,300 sq ft in
the main building out of 900,000 sq ft available. The LWRA uses the main
building for meetings of members of the LWRA and their committees and occupies
12,500 sq ft in the County Hall North Block. The licences of the LFCDA and LWRA
to use County Hall having been determined, alternative accommodation is being
provided.
The LRB
applied to the local planning authority, the respondent Lambeth Borough
Council, for permission to use the main block for office purposes unconnected
with any local government statutory functions. Such permission not being
forthcoming, the LRB appealed to the Secretary of State. A public inquiry was
instituted and the inspector was impressed by the argument that:
There is an
existing need to retain County Hall or some part of it in local government type
use to meet the requirements of a number of bodies which are providing local
government services for London as a whole, usually as successor bodies to the
GLC
The inspector
recommended that the planning application should be refused because:
The need to
continue the existing use of the building outweighs any need to put it to an
office use . . .
The Secretary
of State, disagreeing with the recommendations of the inspector, decided to
grant planning permission. He considered:
whether in
planning terms the desirability of preserving the existing use outweighs the
merits of the proposed new uses.
The Secretary
of State did not think that there were local government organisations which
needed accommodation of the scale and character of that existing at County
Hall. He thought that, in any event, accommodation for such organisations could
be found elsewhere. He concluded that the advantages of retaining the main
building for local government activities were not of ‘sufficient weight to
result in refusal of the applications for offices in an area and in a building
suitable for such use’.
Simon Brown J quashed
the decision of the Secretary of State on the ground that the Secretary of
State had failed to give proper reasons for his decision. In agreement with the
Court of Appeal, I am of the opinion that the Secretary of State stated clearly
that he granted planning permission because, in his view, the main building was
too large and too grandiose for the local government bodies which might
appropriately be accommodated there and that those bodies could be accommodated
elsewhere. The Secretary of State made it clear that he was not sufficiently
impressed by the arguments advanced in favour of maintaining the existing use
to refuse an application to use offices as offices in a building largely
composed of offices situated in an area of office development.
The Court of
Appeal, 58 P&CR 370, nevertheless upheld the decision of Simon Brown J to
quash the decision of the Secretary of State because, in the view of Slade LJ
at p 388*, if the Secretary of State had applied:
the competing
needs test to the facts found by the inspector, there was only one answer which
could properly and rationally have been given — namely, that the need for and
desirability of preserving the existing local government type use outweighed on
its planning merits both the need for and desirability of the proposed ordinary
office use.
*Editor’s
note: [1989] 3 PLR 105 at p 121E.
In the present
case there was evidence, supported by the inspector, that there was a need to
preserve the main building of County Hall as the home of local government
organisations. But the Secretary of State did not consider that the main
building was an appropriate home or a necessary home for such local government
organisations as needed a home after the abolition of the GLC.
maintenance of the main building for use by local government organisations were
not sufficient to outweigh the advantages of allowing the main building to be
used for offices generally in accordance with the wishes of the applicants for
planning permission. I do not understand or find statutory justification for
‘the competing needs test’. If there are advantages in refusing a planning
application and advantages in allowing the application the Secretary of State
determines the weight and balance of advantage bearing in mind the accepted
principle that ‘having regard to all material considerations’ the application
may be allowed ‘unless that development would cause demonstrable harm to
interests of acknowledged importance’.
In the present
case, the inspector, who recommends, took one view, and the Secretary of State,
who decides, took the opposite view. Subsequently, ILEA, which was the only
organisation worth considering, disappeared from County Hall and from
existence. By the Act of 1985, Parliament decided to change the organisation of
the local government of Greater London in a way which, in the opinion of the
Secretary of State, made County Hall redundant for local government purposes.
It is not for the court to question the wisdom of Parliament. It is not for the
court to order that the main building shall have a splendid future as the home
of local government and that the owners from time to time of the main building
shall be compelled to let the premises to local government authorities and no
one else, and to suffer offices to be occupied by public typists to the
exclusion of private typists. Consistently with the Act of 1985, the abolition
of the GLC and the abolition of the ILEA and the dispersion of their functions,
the LRB have secured and the Secretary of State has approved, that the main
building shall have no future as the home of local government. That is a
political decision and the planning decision follows inexorably. I would allow
the appeal.
LORD OLIVER
OF AYLMERTON: My lords, I have had the advantage of
reading in draft the speech delivered by my noble and learned friend, Lord
Keith of Kinkel. I agree with it and would allow the appeal for the reasons which
he has given.
LORD GOFF
OF CHIEVELEY: My lords, I have had the advantage of
reading in draft the speech of my noble and learned friend, Lord Keith of
Kinkel. I agree with it and for the reasons he gives I would allow this appeal.
Appeal
allowed. Lambeth to pay the appellants’ costs in the House of Lords and in
courts below, and the Secretary of State’s costs in courts below in respect of
the applications under section 245 of the Town and Country Planning Act 1971.
