Material change of use — Change of use of local government building to offices — Tests to be applied — Whether competing needs test exists as a matter of law — Appeal allowed
The London Residuary Body made two applications to the local planning authority: the first was under section 53(1) of the Town and Country Planning Act 1971 for determination that the future use of County Hall, London, as offices would not constitute or involve development of land. The second application was for planning permission to change the use of the premises to offices if indeed such a change involved development. Both applications were deemed refused and the LRB appealed to the Secretary of State for the Environment.
Simon Brown J ([1988] 2 PLR 79) (1) dismissed an application under section 247 of the 1971 Act against the determination of the Secretary of State that a change of use from local government offices involved development because of the sui generis nature of the prior local government use; and (2) allowed an application under section 245 of the 1971 Act against the Secretary of State’s decision to grant planning permission on one of the grounds advanced. One of the appeals by the LRB was allowed, but their appeals under section 245 of the 1971 Act and all the appeals by the Secretary of State were dismissed by the Court of Appeal ([1990] 3 PLR 105). The LRB appealed.
Held The appeal was allowed.
The Court of Appeal, in taking 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, fell into an error of law. All that section 29(1) of the 1971 Act 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 a material consideration is a matter of judgment for the Secretary of State.
A competing needs test does not exist in law and the cases of Clyde & Co v Secretary of State for the Environment [1977] 1 WLR 926 and Westminster City Council v British Waterways Board [1985] AC 676 are not to be interpreted as laying down such a test. There is no statutory justification for it.
Robert Carnwath QC and John Howell (instructed by Linklaters & Paines) appeared for the appellants, the London Residuary Body; and Michael Fitzgerald QC and John Hobson (instructed by the solicitors to the Lambeth Borough Council and the Inner London Education Authority) appeared for the respondents.
