Material change of use — Change of use of local government buildings to offices — Application for determination under section 53 of the Town and Country Planning Act 1971 — Application for planning permission — Inspector recommending refusal of appeal against failure to determine that no material change of use had occurred — Inspector recommending refusal of planning permission — Secretary of State accepting inspector’s recommendation on section 53 determination — Secretary of State rejecting inspector’s recommendation regarding planning permission — Secretary of State granting planning permission for office use — Whether Secretary of State applied the right tests — Whether decision irrational — Whether Secretary of State had failed to give clear reasons
County Hall in
London has been used for local government and related purposes since it was
built. Office accommodation occupies substantially more than 50% of the
available space and the remainder has been used for uses peculiar to local
government such as the Council Chamber, lobbies and committee rooms. 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 the County Hall complex as offices would
not constitute or involve development of land. The second application was for
planning permission to change the use of the complex to office use if such a
change be determined as involving development. The local planning authority
failed to decide either application within the time-limit and the London
Residuary Body appealed to the Secretary of State for the Environment. The
inspector appointed by the Secretary of State recommended the dismissal of the
first appeal; in his view a change of use to office use would involve
development. He recommended that planning permission be granted for office use
of the complex other than the Main Block but should be refused for the Main
Block of the complex, which was required for local government purposes. By his
decision letter, the Secretary of State accepted that a change of use to office
use would involve development as the local government use was a use sui
generis, was not within the Use Classes Order and would involve a material
change of use. But he rejected the inspector’s recommendation to refuse
planning permission and himself granted planning permission for the use of the
whole complex as
decision of the Secretary of State under section 247 of the Town and Country
Planning Act 1971 and contended that a change of use of the complex to offices
would not involve development. In a related motion, put on behalf of the local
planning authority, Lambeth London Borough Council, and the statutory bodies
occupying the complex, the Secretary of State’s decision to grant planning
permission was challenged under section 245 of the Town and Country Planning
Act 1971 on four grounds: (1) there had been a breach of rule 12 of the Town
and Country Planning (Inquiries Procedure) Rules 1974, in that the Secretary of
State differed from the inspector on a finding of fact; (2) the decision was
irrational, contrary to the Wednesbury principles; (3) the Secretary of
State had failed to apply the relevant test in determining the weighing of two
competing needs; and (4) the Secretary of State had failed to give adequate
reasons as required by rule 13 of the 1974 rules.
Simon Brown J
([1988] 2 PLR 79) dismissed the appeal under section 247 of the 1971 Act and
allowed the application under section 245. The London Residuary Body appealed
that decision in relation to the section 53 determination and the section 247
appeal; and the Secretary of State appealed the decision in relation to the
section 245 application.
The appeals were allowed in respect of the decision on the section 247 appeal
and the matter remitted to the Secretary of State with the opinion of the
court.
The Secretary
of State misdirected himself in law by introducing a significant additional
factor into his reasoning process which had not featured in the inspector’s
reasoning. He referred in his decision letter to the difference between local
government statutory functions and commercial office use. Office
use within class B1 of the Use Classes Order 1987 is not confined to commercial
offices. Either the Secretary of State mistakenly regarded the inspector as
having ruled that non-commercial offices were not offices within class B1 or he
adopted an incorrect reference to commercial office as an additional reason of
his own: see p 114.
However,
having regard to the special features of the activities carried on in the
complex, the inspector was entitled to regard the predominant use of the
complex as not being use as an office in the relevant sense but as being a use sui
generis. He was so entitled, even though he recognised that the floorspace
occupied for the purpose of the use having these special features was far less
than the areas occupied for more conventional office activities. The Secretary
of State was entitled to support his decision not so much on the bare ground
that the primary use of the complex was for the exercise of local government
statutory functions but by reference to the combination of functions identified
and referred to by the inspector: see pp 115-117. There was the additional
possibility that the complex had a mixed or composite user. The Secretary of
State was entitled to adopt the inspector’s conclusion that as a matter of fact
and degree the use of any part of the complex as offices unrelated to local
government would involve a material change of use: see p 117H.
2. The appeals
were dismissed in respect of the section 245 application.
The reasons
given by the Secretary of State for disagreeing with the recommendation of the
inspector, that planning permission should be refused, may be briefly stated:
see p 121. However, the Secretary of State misdirected himself in law in
applying the competing needs test. The Secretary of State accepted that the
application of the test pointed strongly to the need to preserve the existing
use and that the proposed change would cause demonstrable harm to the interests
of local government users of the Main Block. However, he placed too high a
burden of proof on the local government users when he decided that the
presumption in favour of planning permission was still not rebutted because it
had not been shown that the existing use of the Main Block was the only
means of accommodating them satisfactorily: see pp 121E-122.
to in the judgments
Centre 21
Ltd v Secretary of State for the Environment
[1986] 2 EGLR 196
ELS
Wholesale (Wolverhampton) Ltd v Secretary of
State for the Environment [1987] JPL 844
Lewis v Secretary of State for the Environment (1971) 70 LGR 291;
23 P&CR 125, DC
Rogelan
Building Group Ltd v Secretary of State for the
Environment [1981] JPL 506
Shephard v Buckinghamshire County Council (1966) 64 LGR 422; 18 P
& CR 419
Snook v Secretary of State for the Environment (1975) 33 P &
CR 1; [1976] EGD 769; 237 EG 723, [1976] 1 EGLR 148; [1976] JPL 303, DC
Tessier v Secretary of State for the Environment (1976) 31 P &
CR 161
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, HL
Westminster
City Council v Great Portland Estates plc
[1985] AC 661; [1984] 3 WLR 1035; (1984) 50 P & CR 34; [1985] JPL 108; sub
nom Great Portland Estates plc v Westminster City Council [1984] 3
All ER 744, HL
Appeals
against decisions of Simon Brown J under sections 247 and 245 of the Town and
Country Planning Act 1971
These were two
sets of related appeals against the decisions of Simon Brown J ([1988] 2 PLR
79). Five appeals were by the London Residuary Body; to the first appeal the
Secretary of State for the Environment, Lambeth London Borough Council and the
Inner London Education Authority were respondents, and to the remaining four
appeals Lambeth London Borough Council, Inner London Education Authority,
London Fire and Civil Defence Authority and the London Waste Regulation
Authority were respondents. Four appeals were by the Secretary of State, to
which Lambeth London Borough Council, Inner London Education Authority, London
Fire and Civil Defence Authority and the London Waste Regulation Authority were
respondents. Simon Brown J dismissed the appeals brought under section 247 of
the Town and Country Planning Act 1971 seeking to quash a decision of the
Secretary of State accepting a recommendation of his inspector, whereby an
appeal against a deemed refusal to determine an application under section 53(1)
of the 1971 Act within the due time be dismissed. He allowed an application
under section 245 of the 1971 Act seeking to quash a decision of the Secretary
of State whereby he rejected his inspector’s recommendation, in an appeal
against a deemed refusal by the local planning authority to grant planning
permission, that planning permission be refused.
QC and John Howell (instructed by Linklaters & Paines) appeared for the
London Residuary Body.
Fitzgerald QC and John Hobson (instructed by the solicitor to the Inner London
Education Authority) appeared for that authority and Lambeth London Borough
Council.
Ouseley and Alison Foster (instructed by the Treasury Solicitor) appeared for
the Secretary of State for the Environment.
Fire and Civil Defence Authority and the London Waste Regulation Authority were
not present and were not represented.
following judgments were delivered.
SLADE LJ: There are before this court five appeals by the London Residuary
Body (‘the LRB’) and four appeals by the Secretary of State for the Environment
from a judgment of Simon Brown J delivered on March 28 1988, now reported at
[1988] 2 PLR 79. They relate to two sets of decisions of the Secretary of State
given in a planning matter by letter dated October 20 1987. The respondents to
the first of LRB’s appeals are the Secretary of State, Lambeth London Borough
Council (‘LBL’) and the Inner London Education Authority (‘ILEA’). The
respondents to the other four appeals of the LRB are respectively LBL, ILEA,
the London Fire and Civil Defence Authority (‘LFCDA’) and the London Waste
Regulation Authority (‘LWRA’). The respondents to the four appeals of the
Secretary of State are
respondents’ notices have been served. In the event, however, LFCDA and LWRA
have withdrawn their respondents’ notices and are not represented before this
court.
The appeal
concerns County Hall, situated in Lambeth. I gratefully adopt the judge’s
description of this property at p 81D and the circumstances in which the
relevant planning applications were made:
[County Hall]
has long been the centre of London government. It was the headquarters first of
the London County Council, then of the Greater London Council. When that body
was abolished by the Local Government Act 1985 it became vested in the London
Residuary Body (LRB). It consists of four blocks: the Main Block, the North
Block, the South Block and the Island Block, the first three being linked to
the fourth (which, as its name implies, is surrounded by roads) by a high-level
bridge and pedestrian subways. The main building is listed Grade II*. It is 10
storeys high, including the basement and subbasement. The principal floor
contains many splendid rooms, notably the Council Chamber, the ambulatory, the
lobbies, the conference hall and many fine committee rooms. These and other
reception and meeting facilities account for some five per cent of the floor
space within this main building. Office accommodation accounts for nearly 50
per cent.
The remaining
floorspace is for storage, building maintenance, various support facilities and
other ancillary accommodation. The North Block consists essentially of 11
storeys of mundane office-type accommodation. The South Block consists of nine
storeys of similar accommodation. The Island Block provides modern and mostly
open-plan office accommodation. Taking the complex of four blocks as a whole,
office accommodation occupies substantially more than 50 per cent of the
available space.
Past and
present use of the complex has involved very extensive public access to the
buildings, with tens of thousands of visitors each year. The public come for
various reasons, some exercising statutory rights of attendance at meetings and
the like, others coming to use County Hall’s many different public facilities.
The complex is presently occupied, as to some 57 per cent by the LRB, some 26
per cent by the Inner London Education Authority (ILEA) and some three per cent
by other bodies, including public authorities such as the London Fire and Civil
Defence Authority (LFCDA) and the London Waste Regulation Authority (LWRA). The
remaining 14 per cent odd is vacant.
The LRB is
obliged by law to dispose of such of its property holdings as it does not
require for carrying out its functions and to do so at the best price
reasonably obtainable. To that end, it has been seeking vacant possession of
the complex; the last notice to quit expires imminently on March 31 1988.
Further to that end, it wishes to market County Hall as a site available for
various uses. That wish prompted a number of planning applications. So far as
now relevant, those included first, an application pursuant to section 53(1) of
the Town and Country Planning Act 1971 (‘the 1971 Act’) for a determination
that future use of the complex as offices would not constitute or involve
development of the land and, second (assuming, contrary to the LRB’s intention,
that such future use would constitute or involve development), an
application for planning permission to make that change of use to office use.
The London
Borough of Lambeth (LBL), the local planning authority, having failed to decide
those applications within due time, the LRB appealed to the Secretary of State.
The Secretary of State appointed David Keene QC as the inspector. An inquiry
was held, beginning in April 1987 and lasting seven weeks. It was followed in
August 1987 by a careful and detailed 227-page report, which concluded with the
inspector recommending both dismissal of the appeal under section 53 and
refusal of planning permission for change of use of the main building (and of
the complex as a whole because and in so far as it includes the main building)
to use as offices.
By his
decision letter dated October 20 1987, the Secretary of State accepted the
first of those recommendations, and accordingly determined the section 53
appeal against the LRB, which has impugned this first set of his decisions. He
determined that proposals to use the whole or any of the buildings in the
County Hall complex for office purposes unrelated to any local government
statutory function would constitute or involve development of the land for
which an application for planning permission would be required under Part III
of the Town and Country Planning Act 1971, having regard to the provisions of
the Town and Country Planning General Development Orders 1977 to 1985.
The second set
of decisions embodied in the Secretary of State’s letter have been impugned by
LBL, ILEA, LFCDA and LWRA. These were decisions by which he rejected the
inspector’s recommendation regarding planning permission and himself granted
planning permission for use as offices for any purpose of (a) the entirety of
County Hall, including the Main Block, and (b) the Main Block alone
The Secretary
of State’s decision was followed by (a) a notice of motion on behalf of LRB
pursuant to section 247(1) of the 1971 Act challenging his determination that
planning permission was needed; and (b) notices of motion pursuant to section
245(1) of the 1971 Act on behalf of each of LBL, ILEA, LFCDA and LWRA challenging
the grant of such planning permission.
The learned
judge dismissed LRB’s motion, but allowed the respective motions of LBL, ILEA,
LFCDA and LWRA and quashed the decision of the Secretary of State notified by
his letter of October 20 1987 in so far as it granted planning permission for
the use as offices for any purpose of, first, the entirety of County Hall,
including the Main Block, and, second, the Main Block alone. He did so on the
grounds that the Secretary of State had failed to give adequate reasons for his
decision pursuant to the duty imposed on him by rule 13(1) of the Town and
Country Planning (Inquiries Procedure) Rules 1974 (‘the 1974 rules’) and that
the interested authorities had been substantially prejudiced by this failure.
In the first
of its five appeals, LRB (with the leave of the judge) challenges the part of
the judge’s judgment by which he dismissed its motion and held that planning
permission was needed. In its other four appeals, LRB challenges that part of
the judge’s judgment by which he allowed the respective motions of LBL, ILEA,
LFCDA and LWRA and quashed the Secretary of State’s decision in so far as it
granted the relevant planning permission. In his four appeals the Secretary of
State challenges the same part of the judge’s judgment.–
By their
respondents’ notices, LBL and ILEA submit that the judge’s judgment, quashing
the Secretary of State’s decision in so far as it granted the relevant planning
permission, should be affirmed on the following additional and/or alternative
grounds, namely: (1) an alleged breach of rule 12 of the 1974 rules, a ground
dependent upon the Secretary of State having differed from the inspector on a
finding of fact; (2) an alleged failure by the Secretary of State to apply the
relevant test, despite having correctly identified it; and (3) a Wednesbury
challenge based on the asserted irrationality of the Secretary of State’s
decision.
No issues
arise in respect of the North Block, the South Block and the Island Block of
County Hall. In accordance with the inspector’s recommendation, the Secretary
of State granted planning permission in respect of these blocks and, save to
the extent that the LRB contend that no such permission was required, his
decision in this respect is not challenged. The dispute centres on the Main
Block.
As did the
learned judge, I will begin by considering the LRB’s section 53 determination.
The
section 53 determination
By virtue of
section 53(1) of the 1971 Act:
If any person
who proposes . . . to make any change in the use of land, wishes to have it
determined whether . . . the making of that change, would constitute or involve
development of the land, and, if so, whether an application for planning
permission in respect thereof is required under this Part [III] of this Act,
having regard to the provisions of the development order . . . he may . . .
apply to the local planning authority to determine that question.
Commonly,
therefore, two separate questions may arise for determination under section 53,
namely: (a) whether the making of the proposed change in the use of the land
(in this case use as ‘an office’) would constitute or involve ‘development’;
and (b) if it would, whether an application for planning permission is required
in respect of such development under Part III, having regard (inter alia)
to the provisions of the development order.
Only the first
question is relevant to the section 53 determination in the present case. Both
in the court below and in this court, the LRB has accepted that if use for
office purposes unrelated to any local government function would constitute or
involve development, an application for planning permission would be required
in respect of it.
Section 22(1)
of the 1971 Act, so far as relevant, defines ‘development’ as including ‘the
making of any material change in the use of any buildings or other land’.
However,
section 22(2) provides:
The following
operations or uses of land shall not be taken . . . to involve development . .
.
(f) in the case of buildings . . . which are
used for a purpose of any class specified in an order made by the Secretary of
State . . . the use of the buildings . . . for any other purpose of the same
class.
The Town and
Country Planning (Use Classes) Order 1987 (SI 764) (‘the 1987 order’) provides
by article 3(1) that:
. . . where a building or other land
is used for a purpose of any class specified in the Schedule, the use of that
building or that other land for any other purpose of the same class shall not
be taken to involve development of the land.
The Schedule
to the order specifies a number of classes, of which I mention two. Class A2,
headed ‘Financial and professional services’, reads:
Use for the provision
of —
(a) financial services, or
(b) professional services (other than health
or medical services), or
(c) any other services (including use as a
betting office) which it is appropriate to provide in a shopping area,
where the
services are provided principally to visiting members of the public.
Class B1,
headed ‘Business’ (so far as need be quoted), reads:
Use for all or
any of the following purposes —
(a) as an office other than a use within class
A2 (financial and professional services),
(b) for research and development of products
or processes, or
(c) for any industrial process,
. . .
The 1987 order
came into operation on June 1 1987, revoking and superseding the Town and
Country Planning (Use Classes) Order 1972. It is common ground that the Secretary
of State was right to regard the 1987 order as the relevant order for the
purpose of the section 53 determination.
Accordingly,
if the LRB were to establish that the making of the proposed change in the use
of the County Hall complex would not constitute or involve ‘development’, they
had to submit and establish either:
(A) that the future use of the complex as offices
would not constitute a ‘material change’ in the use of the complex (in which
case they could rely on section 22(1) of the 1971 Act); or
(B) that the use of the complex hitherto has been
use for the purpose of an ‘office’ within the meaning of the 1987 order (in
which case they could rely on section 22(2)(f)).
It is common
ground that, in considering these two main submissions, what has to be
considered is the character of the use of the land, ie the character of the
activities carried on upon it. Furthermore, there has been no challenge to the
inspector’s statement that ‘where one has a complicated situation as is the
case at County Hall, it is agreed that one needs to determine the primary
purpose of the use’: see para 2.82 of his report. Goff J expressed the same
thought in Shephard v Buckinghamshire County Council (1966) 18
P&CR 419 at p 422 in saying ‘one must look at the unit as a whole and see
what is the predominant nature of the user’.
Simon Brown J
(at [1988] 2 PLR 83) recorded certain further points which have been common
ground, namely:
(1) the inspector and the Secretary of State were
entitled to regard the relevant planning unit as the whole complex;
(2) they were entitled also to regard the
planning use of each of the individual buildings within the complex as being
that of the planning unit as a whole;
(3) no one sought to draw any distinction between
the existing use at the date of the application and the use when the buildings
were almost entirely occupied by the GLC.
The inspector
dealt with submission (B) above, before dealing with submission (A). The
following passages from his report sufficiently indicate the route which led to
his answer to submission (B):
2.25 . . .
the issue to be determined comes down to a comparison between the use when
County Hall was occupied by the GLC and an ‘ordinary office use’.
2.82 . . . In
a sense, the nature of the activities which went on in the Complex are well
known: they consisted of the execution of certain London-wide governmental
functions, which involved both meetings and decision-making by elected
councillors and substantial administrative activity by officers, the latter
generally performing their duties in rooms which could be classified as
offices.
2.83. I agree
with the LRB that the identity of an occupier does not itself alter the
character of the use of land or buildings. That is evident from the decision in
Shephard v Buckinghamshire County Council. If the existing use of
the planning unit here was and is as offices, then it matters not that these
were local government offices. There will clearly sometimes be occasions where
a building occupied by part of a local authority will be in office use, as for
example where a Council department is located in a physically distinct building
clearly used for office purposes. At the same time, however, the identity of
the occupier may in some cases be connected with the nature of the activities
carried on and therefore with the character of the use itself.
2.87 . . . In
the present case, it is known that just under 60% of the floor space is used
for activities which may be described as office type activities . . .
That proportion of floor space may not . . . tell one a great deal about the
primary use of the unit . . .
2.88.
Undoubtedly the overall use of the Complex can be characterised as an
administrative one, in the sense that it is administering things, in this case
certain London Government services and functions. That, however, may not take
one very far, because it would also be possible to describe the activities
carried on in the Houses of Parliament as administrative ones, in the sense
that they are involved in part of the administration of Central Government.
2.89. There
are certain characteristics of the existing use which are not to be found in
conventional offices. These derive largely from the fact that the use has been
by a democratically elected body. Mr Dodsworth for the LRB acknowledged in
cross-examination that the first floor of the Main Building has been the heart
of the Complex, and whilst such anthropomorphic expressions can be misleading,
in the present case it does give a proper indication of the importance
realistically attaching to the activities carried on in the Council Chamber and
the Committee Rooms. An essential part of the use was decision making in a
public forum, necessitating a debating chamber with voting lobbies, press
gallery and all the paraphernalia of party politics. This characteristic
permeated the Committee Rooms. While the floorspace occupied by such activities
may have been far less than the area occupied for more conventional office
activities, the latter as Mr Dodsworth again acknowledged were really there
because the decision making process required servicing by officers.
2.90.
Moreover, it was because these buildings were being used as the headquarters of
an elected local government body that there was such a significant degree of public
involvement in and public access to the buildings. It will be clear from the
facts set out earlier that the public access to and use of the Complex has been
considerable. Partly this is as a result of the statutory rights possessed by
the public to obtain access to Council and Committee meetings and to documents
such as the Planning Register, and the fact that those rights existed and were
exercised is clearly of importance. But as the LRB acknowledged through their
Counsel, one has to have regard to the actual use made by the public, whether
by right or otherwise, as well as simply to their rights to attend certain
functions. It seems that the public visited County Hall in large numbers
principally because it was being used for the purpose of governing London, at
least in terms of various strategic functions, and governing with elected
members responsible to the public. The evidence indicates that they came to see
members or officers on a range of matters: education, highways, certain housing
matters, etc.
2.91. This
fact of the extensive public use of and access to these buildings is in itself
important, as is the use that has been made of parts of the buildings for
public meetings of voluntary and local organisations. But it also seems to me
that it gives an indication that the primary use of these buildings was and
indeed is different from that of a conventional office. I conclude that the
main purpose of the use has been a governmental one, albeit confined to London,
but with the distinct characteristics of an elected government use: such a use
has characteristics of public debate and decision making, administering
services, responding to queries from the public, together with a range of other
public and ceremonial activities. The fact that Parliament has seen fit to
confer rights on the public to attend the sort of meetings held by such a body
as occupied and occupies this Complex and to inspect certain of its documents
is a recognition of the fact that such bodies have a different role to perform from
that of other organisations. That in turn reflects in the character and purpose
of the use to which these buildings have been put.
Thus, as I
read his decision, the essential grounds upon which the inspector, in answer to
submission (B) above, decided that the use of the complex hitherto has not been
for the purpose of an ‘office’ within the meaning of the 1987 order were that
hitherto:
the main
purpose of the use has been a governmental one, albeit confined to London, but
with the distinct characteristics of an elected government use: such a use has
characteristics of public debate and decision making, administering services,
responding to queries from the public, together with a range of other public
and ceremonial activities.
The inspector,
in para 2.92, then proceeded to deal very briefly with submission (A) above, as
to which he said:
There is no
doubt that use of the Complex or any part of it as offices unrelated to local
government would involve a change of use, and I conclude that as a matter of fact
and degree such a change would be material.
The relevant
parts of the Secretary of State’s decision letter read as follows:
The Secretary
of State agrees with the Inspector that the relevant ‘planning unit’ in these
cases is the whole of the County Hall Complex . . . He also agrees that the
planning use of each of the individual buildings within the Complex is that of
the planning unit as a whole. The Secretary of State notes that much of the
floor space is used for office type activities. However he accepts the
Inspector’s view that the primary use of the building was for the exercise of
local government statutory functions. The distinct characteristics of these
functions is sufficiently different from commercial office use to support the
conclusion that the present or last use of the planning unit should properly be
regarded as sui generis.
The Secretary
of State, having thus dealt with submission (B) above, dealt with submission
(A) as follows:
He accepts
the Inspector’s view that, as a matter of fact and degree, the proposed use of
the whole of all or any of the buildings in the Complex for office purposes,
unrelated to any Local Government statutory function, would involve a material
change in the use of the land from its present or last use by the GLC.
As Mr Ouseley,
on behalf of the Secretary of State, has rightly pointed out, an appeal from
the Secretary of State’s decision on the section 53 issue lay under section
247(1) of the 1971 Act only on a point of law. In his decision letter, before
dealing with any of the several specific issues calling for his determination,
the Secretary of State had said:
Whilst the
Secretary of State accepts a great deal of the substance of the Inspector’s
views, he does not accept in their entirety the conclusions he draws or all of
his recommendations.
The Secretary
of State added:
Whilst the
Secretary of State agrees with the Inspector’s recommendations on the section
53 determination, it should be noted that his decision has been made entirely
on the special facts of this particular case, and that a different conclusion
might be reached regarding the use of local government buildings in different
circumstances.
It is not
perhaps entirely clear how far the Secretary of State, in the concisely
expressed part of his letter dealing with the section 53 determination, was
intending to adopt the inspector’s report. The learned judge took the view (at
p 85) that ‘in the main the Secretary of State was adopting his inspector’s
report and reasoning upon this part of the case’. I agree that the Secretary of
State was in the main intending to do this. He plainly agreed with the
inspector’s conclusions on this part of the case. If he had intended to
disagree with his reasoning, he would surely have said so more clearly.
Nevertheless,
in the manner in which he expressed himself, the Secretary of State introduced
a significant additional factor into the reasoning process
footing betrayed a manifest misdirection in law on the part of the Secretary of
State. The essential ratio of his decision, as expressed by him, was
that: (a) the primary use of the complex was for the exercise of local
government statutory functions; and (b) the distinct characteristics of those
functions were:
sufficiently
different from commercial office use
— emphasis
added —
to support
the conclusion that the present or last use of the planning unit should
properly be regarded as sui generis.
It is worthy
of note that class B1 in the 1987 order bears the heading ‘Business’. However,
though the Secretary of State referred to the heading in his decision letter,
it does not appear that he attached any importance to it, and in this court it
has been common ground between counsel that it does not have the effect of
confining the reference to ‘office’ use in class B1 to commercial office use.
Thus, as Simon Brown J said (at p 88) it cannot possibly be right to rule out
of office use (within the meaning of the 1987 order) all premises devoted to
other than commercial ends. There could, for example, be no possible grounds
for excluding from the ambit of class B1 office premises used for administering
a charity: see also Shephard v Buckinghamshire County Council
(1966) 18 P&CR 419 on the facts of which use for military purposes was held
to constitute use as an ‘office’ within the meaning of the 1963 Use Classes
Order. The learned judge, however, said (at p 88C):
Infelicitous
though I regard the phrase to be, I have not the least doubt that, in the
context of the decision as a whole, the Secretary of State was doing no more
than characterising in loose language the concept of generally recognised
office use (assuming, indeed, that this was not merely a careless, perhaps even
typographical, error).
I regret that
I cannot agree. The Secretary of State has not sought to put in any evidence
suggesting that the use of the phrase amounted to a careless or typographical
error, and Mr Ouseley, on his behalf, has had no instructions to submit that
this was so. We must therefore assume that the use of the phrase was
intentional and deliberate. I cannot accept Mr Ouseley’s submission that we
should read in its context the word ‘commercial’ as a loosely expressed synonym
for ‘conventional’. Even when read in a broad sense, the two expressions do not
bear the same sense. In these circumstances, the inference is, in my judgment,
inevitable that the Secretary of State misdirected himself because either (a)
he had mistakenly regarded the inspector as having ruled out of office use all
premises devoted to other than commercial ends and was adopting this part of
the inspector’s supposed reasoning, or (b) while adopting the inspector’s
reasons, he was introducing the incorrect reference to commercial office use as
an additional reason of his own.
Accordingly,
in my judgment, this court will have no choice but to allow LRB’s appeal and to
accede to its invitation to remit the decision of the Secretary of State on the
section 53 application to the Secretary of State for rehearing and
determination by him.
Mr Ouseley has
rightly warned us that, in doing so, we should say nothing which will pre-empt
the Secretary of State’s decision on matters of fact. Nevertheless, his
decision must depend substantially on a question of law, that is to say, the
meaning of the reference to ‘use . . . as an office’ in class B1 of the 1987
order. I therefore think it right that this court should give him some further
guidance on this point, after hearing full argument on it, beyond a bare
statement that its ambit is not confined to commercial office use. In a
sentence, as Simon Brown J said (at p 83B):
the LRB’s
contention throughout has been that the use always was as offices, while the
opposing authorities have contended that it was sui generis capable of
being described as the seat of London-wide local government.
The Secretary
of State accepted the inspector’s view that ‘the primary use of the building
was for the exercise of local government statutory functions’. On the basis of
the primary facts found by the inspector, were the inspector and the Secretary
of State entitled to come to this conclusion and thus to hold that the primary
use of the complex was not ‘as an office’ within the meaning of the 1987 order?
Mr Robins QC,
in a cogent argument on behalf of the LRB, has submitted that they were not. In
his submission, a building is used as ‘an office’ in the relevant sense when
the work done there is administering public or private business of some kind.
Administration, he contended, may involve deliberation and decision-taking,
whether by individuals or groups of individuals; it may also involve the
transmission of information to and its reception from those concerned with the
business being administered. In his submission, it is irrelevant who occupies
the building as an office, whether they be a public or a private organisation.
Thus the inspector’s assessment that ‘undoubtedly the overall use of the
Complex can be characterised as an administrative one’ (para 2.88 of his
report) should, in Mr Robins’ submission, inevitably have led him to the
conclusion that the complex had been used as an office. In his submission, both
the Secretary of State and Simon Brown J erred in law in holding that the
primary use of ‘the building’ could be for the exercise of local government
statutory functions. The exercise of such functions, it was said, was the
particular purpose or purposes for which the activities in the complex were
carried on by a particular occupier but was not the character of the use made
of the land for planning purposes.
It has been
common ground in the court below and in this court that in determining whether
the complex was used for the purpose of an office during the period of the
GLC’s occupation it is the character of the activities carried on upon it which
has to be considered, so that the following factors are irrelevant as such:
(a) the identity of the occupier or person who
carries on the activities;
(b) the particular purpose for which he carries
on those activities;
(c) the ownership or source of supply of any
materials employed in those activities;
(d) the destination elsewhere of the products of
those activities; and
(e) activities elsewhere, even if related to
activities on the land in question: see Westminster City Council v British
Waterways Board [1985] AC 676 at pp 683G-685A; Westminster City Council
v Great Portland Estates plc [1985] AC 661 at pp 669F-670A; Lewis
v Secretary of State for the Environment (1971) 23 P&CR 125 at pp
127-128, and Snook v Secretary of State for the Environment
(1975) 33 P&CR 1 at pp 4-6.
However, I
would agree with the learned judge (see at p 85H) that, although all those
matters are irrelevant in themselves, ‘it may well be that some at least are
capable of illuminating the character of the activities undertaken on the
land’.
It is perhaps
unfortunate that the 1987 order contains no more expanded definition of the
phrase ‘use . . . as an office’ than it does. It also appears that only limited
guidance is to be obtained as to the meaning of the phrase or equivalent
phrases used in earlier use classes orders from previous authorities. In the Shephard
case, Goff J. in summarising his reasons for holding that the
purpose of a signals unit was ‘use as an office for any purpose’ within the Use
Classes Order of 1963, said (at p 426) that he had concluded that he ‘must
treat this as an administrative unit of some kind’. Mr Robins relied strongly
on this decision. In my judgment, however, it cannot be regarded as authority
for the proposition that the use of premises for any sort of administration must
inevitably constitute ‘use as an office’ within the meaning of the 1987 order.
I cannot, for
my part, accept such a wide proposition. I would accept that the use of
premises for the purpose of administration would much more often than not
constitute use as an ‘office’ within the ordinary meaning of words and thus
within the 1987 order. However, cases can readily be conceived where the label
would not easily fit. The logical progression of Mr Robins’ argument would lead
him to the submission that the respective uses of the Houses of Parliament and
the Royal Courts of Justice would be as offices in the relevant sense, because
in a broad sense ‘administration’ would be carried on there, even in the
debating chambers and courts themselves. In any such case, questions of fact
and degree would arise. However, I would regard it as clear that the Secretary
of State would at least be entitled to take the view that the predominant
nature of the user of these two buildings was not as an ‘office’ within the
ordinary meaning of words or of the 1987 order, and that the user of many rooms
attached to those buildings, which looked at in isolation could properly be
described as ‘offices’, was merely ancillary to the activities carried on in
the debating chambers and courts themselves and thus did not constitute user as
an office.
Mr Robins
strongly criticised the inspector’s reasoning on this issue, as expressed in
paras 2.89 to 2.91 of his report. As he rightly submitted, the mere fact that a
building is used for the purposes of government, local or otherwise, would not
by itself render its use otherwise than as an ‘office’; the use of many,
perhaps most, government ministry buildings would undoubtedly be as ‘an
office’. As he also rightly submitted, the mere fact that a building or part of
it is used for the purposes of debate and decision-making (for example, the
headquarters of a large commercial company) would not by itself render its use
otherwise than as an ‘office’.
In my
judgment, however, as Mr Ouseley submitted, the inspector, in reaching his
conclusion that the predominant use of the complex by the GLC had not been as
an office, was relying on a combination of factors, which, in his
opinion, rendered it ‘different from that of a conventional office’ — by which
I understand him to have meant that its predominant use was different from use
as ‘an office’ within the ordinary meaning of the words. Among the special
features to which he appears to have attached particular importance were:
(a) the presence of a debating chamber with
voting lobbies, press gallery ‘and all the paraphernalia of party politics’, a
characteristic which ‘permeated the Committee rooms’;
(b) the significant degree of public involvement
in and public access to the buildings;
(c) the use made of parts of the buildings for
public meetings of voluntary and local organisations;
(d) ‘the characteristics of public debate and
decision making, administering services, responding to queries from the public,
together with a range of other public and ceremonial activities’.
The decision
of the Divisional Court in Tessier v Secretary of State for the
Environment (1976) 31 P&CR 161 shows that the respective uses specified
in
types of user and that uses may exist which are for planning purposes to be
regarded as sui generis, outside the ambit of the Use Classes Order.
In my
judgment, having regard to the special features of the activities carried on in
the complex referred to above and the other special features identified by him,
the inspector was entitled to regard the predominant use of the complex as not
being use as ‘an office’ in the relevant sense but as being sui generis.
And he was entitled so to regard it, even though, as he recognised (in para
2.89 of his report), the floorspace occupied for the purpose of use having
these special features was far less than the areas occupied for more
conventional office activities. This matter of area fell to be treated as a
relevant but by no means conclusive factor in his decision. In short, in my
judgment, on the basis of the inspector’s findings of primary fact, the
Secretary of State would have been entitled to support his decision on this
issue not so much on the bare ground that ‘the primary use of the building was
for the exercise of local government statutory functions’ but following the
route in law which I have attributed to the inspector himself. I conceive that
it was the combination of factors referred to by the inspector which the Secretary
of State probably had in mind in saying that his decision had been made
‘entirely on the special facts of this particular case’.
However, if
and when the matter is remitted to the Secretary of State, he should, in my
judgment, also bear in mind a possibility mentioned by Lloyd LJ in the course
of argument, namely that the use of the Main Block and thus of the complex as a
whole, is properly to be regarded as a mixed or composite user. I say nothing
more about the point because no party relied on it in argument before us, but,
if well founded, it could have led to the same result.
Finally, in
this present context, Mr Robins submitted that the Secretary of State erred in
law in, and failed to give any reason for, concluding that any change in the
use of the whole of all or any of the buildings in the complex to use for
office purposes unrelated to any local government statutory function would be
‘material’ for planning purposes. Simon Brown J expressed the view that on the
facts that further question was in reality determined by the conclusion arrived
at on the main part of the appeal. He said at p 88E:
Given that it
is necessarily implicit in the Use Classes Order itself that change from one
office use to another may well involve a material change of use (and would thus
require planning permission but for the provisions of section 22(2)(f)
and the Use Classes Order), it is surely inconceivable in a case such as this
that the inspector and Secretary of State, having found differences in the
character of the use sufficiently significant to preclude the categorisation of
the present use as offices, could conclude other than that a change to office
use would indeed be material.
I agree. Mr
Robins submitted — and I would accept — that a new user is capable of falling
outside an existing use class without giving rise to a material change.
Nevertheless, in my judgment, the inspector, having already referred to the
special features of the existing local government use, mentioned above, was
entitled to conclude, as he did in para 2.92 of his report, that as a matter of
fact and degree the use of any part of the complex as offices unrelated to
local government would involve a material change of use. Likewise, in my
judgment, the Secretary of State was entitled, as he did, to adopt the
inspector’s reasoning and conclusion on this point. Nevertheless, for the
reasons already stated, I am of opinion that, so far as appears from his
decision letter, the Secretary of State misdirected himself in law in another
respect and the appeal of the LRB in respect of its section 53 application will
accordingly have to be allowed.
The grant
of planning permission
The Secretary
of State, as I have said, departing from his inspector’s recommendations on this
issue, himself granted planning permission for use as offices for any purpose
of the entirety of County Hall including the Main Block and the Main Block
alone. In opposition to the planning applications, submissions had been made to
the inspector by a number of bodies or persons, including LBL, ILEA, LFCDA and
LWRA, to the effect 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
dealt with these submissions in a long section of his report headed ‘Need to
Preserve the Existing Use’ (paras 4.71-4.103). He gave his ultimate conclusion
on the point in paras 5.1.9 and 5.6 as follows:
5.1.9 There is a compelling need to retain the
existing London governmental use of the Main Building of County Hall. There
continue to be a number of London-wide services provided by successor bodies to
the GLC, including ILEA, LFCDA and LWRA, and such bodies have special
accommodation requirements such as debating chambers, committee rooms and
nearby officer accommodation, for which the Main Building of County Hall is
admirably suited. Such bodies need the type of accommodation described in a
Central London location, and no other reasonably suitable accommodation to meet
their requirements exists. This need to retain the existing use applies to the
Main Building of County Hall and is a serious objection to the proposed changes
of use of that building. The need, however, does not exist on a scale which
requires the preservation of the existing use of any of the other buildings at
County Hall. No objection on these grounds can therefore be sustained to any of
the proposals other than those in respect of the Main Building.
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 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 . . .
There has been
considerable debate in this court as to both the test which was applied and the
test which should properly have been applied by the inspector and by the
Secretary of State respectively in the face of assertions of a need to preserve
an existing use.
The relevant
paragraphs of the inspector’s report indicating the test which he applied and
the manner in which he applied them are set out at pp 89-92 of the report of
Simon Brown J’s judgment. I do not propose to repeat them. As I read the
inspector’s report, the test applied by him was (in substance and in somewhat
expanded form) the following:
(1) ‘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.’
(para 3.5 of Circular 14/85 quoted in para 4.1 of the report).
(2) If no valid planning objection has been
established, permission for a proposed development should be granted; in such a
case the presumption will apply and there is no onus on an applicant to
demonstrate need or planning benefits.
(3) If, on the other hand, a valid planning
objection has been made out (by reference to interests of acknowledged
importance) the inspector will have to
proposed development or any planning benefits to be derived from it which the
applicant may have established. If it does, planning permission should be
refused (para 4.2). If it does not, the presumption in favour of planning
permission will still apply.
(4) The retention of an existing use is capable
of being a material planning consideration and thus constituting a valid
planning objection to a proposed change of use, provided it is shown that 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 (see Westminster
City Council v British Waterways Board [1985] AC 676 at p 683, per
Lord Bridge). However, in order to decide whether a planning objection of this
nature is sufficient to justify refusal of an application, the inspector, as in
any other case, still has to determine whether the particular objection, namely
the need for and desirability of preserving the existing use, ‘outweighs on its
planning merits the need for and desirability of the proposed new use or uses’
(para 4.76). (I will refer to this last question as ‘the competing needs
test’.)
Applying these
principles, the inspector, as I read his decision, reached the following
conclusions on the facts:
(A) For the reasons summarised in paras 4.101,
4.102, 4.103 and 5.1.9 of his report, there was a compelling need to retain the
existing London governmental use of the Main Block, though not the existing use
of the other buildings of the complex.
(B) There was little doubt that if permission
were refused for the proposed office use, the Main Block would be effectively
put to the existing London governmental use (para 4.103). The retention of the
existing use was thus capable of constituting a valid planning objection.
(C) The inspector was not satisfied on the
evidence ‘that there was any significant need or even desirability for the use
of the Main Building as offices’ (paras 4.14 and 5.6). (In para 5.6 he pointed
out that the LRB’s own advisers had cast doubt on the suitability of the Main
Block for providing efficient floorspace.)
(D) On the application of the competing needs
test, the need to continue the existing use of the Main Block thus obviously
outweighed any need to put it to an office use (para 5.6).
(E) It being clear that the proposed change would
cause harm to interests of acknowledged importance, the inspector accordingly
recommended the refusal of planning permission for change of use of the Main
Block and of the complex as a whole for use as offices.
I pause to say
that, in my judgment, as Mr Fitzgerald QC submitted on behalf of LBC and ILEA,
the principles applied by the inspector were the correct ones.
The most
relevant parts of the Secretary of State’s decision letter are set out at pp
92-93 of the report of the judge’s judgment, and again I do not think it
necessary to reproduce the greater part of them. At the beginning of section
(iii) of the letter headed ‘Need to Preserve the Existing Use’, the inspector
referred to and appears to have accepted principle (4) above. He observed that
‘the test as to whether in planning terms the desirability of preserving the
existing use outweighs the merits of the proposed new uses is clearly a matter
of judgment and balance’. However, in section (iii) of the letter, as I read
it, he did not purport to state his answer to the competing needs test, since
in this section he made no further reference to the merits, if any, of the
proposed new uses at all. In the last paragraph of section (iii) he summarised
the conclusions reached in this section as follows:
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.
As I read this
paragraph, the Secretary of State was using the phrase ‘overriding need’ in the
sense of a need which must take precedence over all other considerations. This
reading is supported by the wording of the last paragraph of section (iv) of
the letter quoted below.
In section
(iv), headed ‘Office Use — Main Block, North Block, South Block and Island
Block’, the Secretary of State began by stating that he had regard to the
presumption set out in Circular 14/85 which he quoted. He then made his first
references to the merits of the proposed new uses. In this context he merely
noted a comment of the inspector that the South Bank is identified in the
Greater London development plan as a preferred location for offices. As to the
need (if any) for office floorspace, he said this:
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.
He concluded
this section of the letter with the following paragraph:
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.
As the judge
pointed out (at p 94), the only disagreement with the inspector identified by
the Secretary of State in his decision letter on what arguably could be said to
be a question of fact, was with ‘the inspector’s conclusion that there is an
overriding need for the Main Building to continue in its existing use’, as
related at the end of section (iii) of the letter, a disagreement repeated at
the end of section (iv). For the reasons stated by him (at pp 94-95), the
learned judge held that the single identified disagreement between the
Secretary of State and his inspector was not a disagreement upon a finding of
fact but rather a disagreement upon an expression of opinion, essentially a
matter of judgment. Though this part of the judge’s decision has been
challenged in respondents’ notices (which reassert breaches of rule 12 of the
1974 rules) and in argument before this court, I agree with the judge on this
point and think that no useful purpose will be served by adding to his reasons.
However, if there was no disagreement on findings of fact, then as the judge
observed (at p 95) the Secretary of State must be taken to have accepted all
the inspector’s conclusions: (a) as to the manifest advantages of the objecting
bodies using the Main Block in the future because of the inevitable problems
that must result from their being unable to do so; and (b) as to there being no
need or even desirability for future office use of the Main Block.
Rule 13(1) of
the 1974 rules places an obligation on the Secretary of State to
specified. This statutory obligation embodies the requirement that the reason
given must be proper, clear and intelligible and must deal with the substantial
points that have been raised (see Westminster City Council v Great
Portland Estates plc [1985] AC 661 at p 673 per Lord Scarman).
Furthermore, I would accept that ordinarily where the Secretary of State has
disagreed with his inspector’s recommendation, the obligation to give clear and
cogent reasons assumes particular importance (see Rogelan Building Group Ltd
v Secretary of State for the Environment [1981] JPL 506 at p 508 per
Glidewell J, though see also his subsequent observations in Centre 21 Ltd
v Secretary of State for the Environment [1986] 2 EGLR 196 at p 201).
However, subject to meeting these requirements, reasons may, in my judgment, be
quite briefly stated and their statement should not be subjected to the same
minute analysis as would have been appropriate had it been a statutory
instrument or section of a statute: compare ELS Wholesale (Wolverhampton)
Ltd and Crownbrae Ltd v Secretary of State for the Environment
[1987] JPL 844 per May LJ.
Differing with
some hesitation from the learned judge on this point, I have come to the
conclusion that the reasons given by the Secretary of State for differing with
his inspector as to the grant of planning permission are sufficiently
clearly stated in section (iv) of his letter, when read together with section
(iii). In my judgment, what the Secretary of State was there saying was that
because, in his view, the continuation of the Main Block in its existing use
was not the only means of meeting the accommodation requirements of ILEA
and other bodies in County Hall, the presumption in favour of granting planning
permission had not been rebutted and should be applied accordingly. When
section (iv) of the decision letter is read together with section (iii), this
in my opinion sufficiently emerges with sufficient (albeit not crystal) clarity
as the basis of his decision.
In my
judgment, however, while the inspector correctly directed himself in law in
this context, the Secretary of State did not. In my judgment, on the
application of 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. If the Secretary of State had
decided otherwise on an application of the competing needs test, his decision
would, in my judgment, have been irrational. As the judge put it (at p 97A):
In the
instant case there was clearly no doubting that, even if it were not in the
fullest sense necessary for the authorities to be accommodated in the Main
Building in future, this was at the very least desirable. Thus there was some
weight to be placed in that scale. Equally there was no doubting but that
neither need nor desirability was demonstrated in favour of a future office
use. . . . there was no weight whatever to be put in the opposing scale.
However, as I
read his decision letter, the Secretary of State was of the view that, even
though (a) the application of the competing needs test pointed strongly to a
need to preserve the existing use, and (b) the proposed change of user would
cause demonstrable harm to the interests of the local government authorities
seeking to continue in occupation of the Main Block, the presumption in favour
of granting planning permission was still not rebutted because it had not been
shown that the retention of the existing use of the Main Block was the only
means of accommodating them satisfactorily.
In my
judgment, the Secretary of State, in holding this view, misdirected himself in
law. He was placing too high a burden of proof on those authorities.
Ordinarily, it seems to me, the presumption in favour of granting planning
permission must be treated as rebutted at least in any case where:
(a) a need for and desirability of preserving
the existing use is established; but
(b) no need or desirability for the proposed
change of use is established; and
(c) the proposed change of use would (to use the
words of Circular 14/85 itself) cause demonstrable harm to interests of
acknowledged importance.
In summary, on
this limb of the appeal, I would uphold the learned judge’s decision quashing
the decision letter in so far as it grants planning permission for the use as
offices for any purpose of, first, the entirety of County Hall, including the
Main Block, and, second, the Main Block. However, I would do so on rather
different grounds. I would reject the grounds of challenge based on the alleged
breach of rule 12 and the alleged failure to give sufficient reasons, but I
would accept the challenge based on his failure to apply the correct test in
law. Because, but only because, I think that the Secretary of State failed to
direct his mind to the correct test, I would reject the challenge to his
decision based on irrationality.
Conclusions
In the result,
I would allow the LRB’s appeal in respect of its section 53 application. On
this appeal I would order that the decision of the Secretary of State, given by
his letter of October 20 1987, that the proposals to use the whole or any of
the buildings in the County Hall complex for office purposes unrelated to any
local government statutory function would constitute or involve development of
the land for which an application for planning permission would be required,
should be remitted to him with the opinion of this court for rehearing and
determination. I would dismiss the other four appeals of the LRB and the four
appeals of the Secretary of State in respect of the order quashing the grant of
planning permission.
In conclusion
I would add two observations. First, we have been informed that by virtue of
section 162 of the Education Reform Act 1988, ILEA is to be abolished on April
1 1990 and that the LRB will be responsible for winding up its affairs. We have
also been told that towards the end of this year a further planning inquiry is
due to be held concerning the future of County Hall. There is no evidence
before us, and we have been given no detailed information, as to the
subject-matter of this inquiry. Possibly the impending extinction of ILEA or
the impending inquiry, or the two in conjunction, may render our decision on
these appeals of somewhat academic importance for practical purposes. As I see
the position, we have no alternative but to deal with these appeals on the
basis of the circumstances as they subsisted when the Secretary of State gave
his decision letter.
Second, we
have had the benefit of excellent and fairly elaborate arguments on all sides.
I have intended no disrespect to them in referring to by no means all the many
points which have been raised by counsel, and indeed by the learned judge, in
this somewhat complicated case. Nevertheless, I hope that this judgment will at
least suffice to show the route by which I have reached my own conclusions and,
together with the judgments of Lloyd LJ and Stocker LJ, to give sufficient
guidance to the Secretary of State when similar points concerning County Hall
fall to be reconsidered by him.
LLOYD LJ:
Section 247
appeal. The first question is whether the Secretary
of State’s determination under section 53 of the Act can stand. For the reasons
given by
the Secretary of State’s decision letter:
The Secretary
of State notes that much of the floorspace is used for office type activities.
However, he accepts the inspector’s view that the primary use of the building
was for the exercise of local government statutory functions. The distinct
characteristics of these functions is sufficiently different from commercial
office use to support the conclusion that the present or last use of the
planning unit should properly be regarded as sui generis.
If the last
sentence means what it says, then the Secretary of State applied the wrong
test. The question which he should have asked himself was whether the use of
County Hall for ‘local government statutory functions’ differed from office
use, not whether it differed from commercial office use. Quite obviously,
commercial office use is narrower than office use.
But Mr Ouseley
on behalf of the Secretary of State seeks to save his determination by inviting
us to look at the decision letter as a whole. The Secretary of State was
evidently intending to accept the inspector’s decision on this point. Since the
inspector referred to ‘ordinary’ and ‘conventional’ office use, the Secretary
of State must have intended ‘commercial’ office use to bear the same meaning.
With respect,
that will not do. It is equally likely that the Secretary of State thought that
‘ordinary’ and ‘conventional’ office use was no wider than commercial office
use, in which case he was upholding the inspector’s determination on a
misunderstanding of the test which the inspector himself applied. There is no
way of telling. The one is as likely as the other.
There are, as
it seems to me, only three possible explanations for the use of the word
‘commercial’.
The first is
that it was a typographical error — a suggestion put forward by the judge. But
if so, it was open to the Secretary of State to come forward and correct his
error, which he never did.
The second explanation
is that the Secretary of State did indeed intend to use the word ‘commercial’
office use and that he was influenced by the introduction of the word
‘business’ into the cross-heading of class B1 of the Schedule to the Use Clases
Order 1987, following the division of the former class II into ‘financial and
professional services’ (as now found in class A2) and ‘business’ (as now found
in class B1). At first sight this seems a likely explanation, though it was not
one put forward by Mr Ouseley.
But on
reflection I must reject the second explanation, because it is inconsistent
with the language which the Secretary of State uses in the immediately
succeeding paragraph. Having referred to the difference between local
government statutory use and commercial office use, the Secretary of State
continues:
The Secretary
of State therefore accepts the Inspector’s conclusion, that the present
or last use of the land by the Greater London Council did not come within the
provisions of class II of the Schedule to the Town and Country Planning (Use
Classes) Order 1972. Moreover, he also considers that that use did not
come within the provisions of class A2 (financial and professional services) or
class B1 (business) of the Schedule to the Town and Country Planning (Use
Classes) Order 1987 . . .
It is clear
from this passage that the Secretary of State thought that the inspector had
applied the commercial office use test. It is only after expressing his
agreement with the inspector on class II of the 1972 order that the Secretary
of State goes on to consider, as a separate matter, whether the case comes
within class B1 of the 1987 order.
In any event,
if the Secretary of State had thought that the 1987 test was different from the
1972 test he should certainly have said so.
I should add
that Mr Ouseley conceded (whether rightly or wrongly does not matter) that the
meaning of the word ‘office’ in class B1 of the 1987 order is no narrower than
in class II of the 1972 order.
We are thus
left with the third explanation, which is that the Secretary of State applied
the wrong test, and in doing so misunderstood the test that had been applied by
the inspector. The Secretary of State’s acceptance of the inspector’s
determination means nothing, unless he understood what it was that he was
accepting.
The judge, who
regarded this as the high point of LRB’s challenge, was prepared to believe
that the Secretary of State was using loose language. I am not willing to be so
charitable. We can only go by the language which he has in fact used. We cannot
ignore the word ‘commercial’; we cannot treat it as if it was not there. And we
cannot give ‘commercial office’ a meaning which is as wide as the word ‘office’
in class B1 of the 1987 order. Accordingly, I agree that the Secretary of
State’s determination under section 53 must be quashed.
I would only
add that for a large part of the hearing I was unable to understand why the
Secretary of State had any interest in resisting LRB’s appeal under section
247, since he had himself granted planning permission for use as offices under
section 35. We were assured that the Secretary of State was not concerned
solely to preserve the purity of planning procedures. Rather it was that our
decision might affect some further major public inquiry which is about to take
place.
The second
question is whether there is any guidance which we can usefully offer to the
Secretary of State when he comes to reconsider his determination under section
53. Obviously there would be no point in his upholding the inspector’s
determination if the inspector’s reasoning is itself erroneous in law.
Mr Robins QC,
on behalf of the LRB, argued that the touchstone of office use is
administration. I agree. Since we are concerned with the nature of the use, and
not the purpose of the user, it does not seem to make any difference whether
the administration is business administration, government administration or any
other kind of administration. Everyone would accept that the Home Office in
Queen Anne’s Gate and the Foreign Office in King Charles Street are offices,
even though their purpose is to implement government policy. By the same token,
the 76,746 sq m of ‘offices’ in County Hall are offices in every sense of the
word, even though their purpose was to implement GLC policy. Does it make any
difference that the Main Block contains 5,151 sq m of reception and meeting
facilities?
Like the
inspector, I would reject the analogy of the Houses of Parliament and the Royal
Courts of Justice. In one sense, I suppose, it could be said that the courts
are the seat of the administration of the law. But this is to use
administration in a different and wider sense. In my view, the overall use of
County Hall was, as the inspector himself found in para 2.88, administrative in
the ordinary sense. If the overall use was administrative, it would seem to
follow that the primary and predominant nature of the user was as offices.
But matters of
fact and degree are not for us. The question is not what we think but whether a
fresh determination by the Secretary of State that the last use of County Hall
was sui generis would be erroneous in law. I agree with Slade LJ that
such a determination would not be erroneous in law. I would take that view not
because the primary or predominant use is what the inspector calls ‘elected
government use’ but because the planning unit should properly be regarded as
having a mixed or composite use. It makes no
the planning unit within one of the uses in the 1987 Use Classes Order.
Section 245
appeal. There are three questions for
consideration:
(1) What is the correct test for the Secretary of
State to have applied in deciding whether to grant planning permission for the
proposed new user?
(2) Did he apply it?
(3) What is the proper scope of the presumption
set out in Circular 14/85?
As to (1), I
agree with Slade LJ that the correct test is the so-called competing needs
test. The test is well stated by the Secretary of State himself in para (3) of
his decision letter. Does the need for and desirability of the existing use
outweigh in planning terms the need for and desirability of the proposed new
use? This is the test which the
inspector applied. I quote from para 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.
(2) Did the Secretary of State apply the
competing needs test? He sets out along
the same path as the inspector, but he reaches a different conclusion. On the
facts found by the inspector, his decision would appear to be inexplicable. But
the explanation must be that the Secretary of State did not in the end apply
the competing needs test. He introduced two new elements, namely, (i) the
presumption set out in Circular 14/85 and (ii) the consideration that the
ILEA’s requirement could be met elsewhere.
(3) What is the proper scope of the
presumption? The judge put it well when
he referred to the ‘somewhat restricted role generally played by the
presumption’:
The
presumption in Circular 14/85 is in essence no more than a recognition of the
longstanding and surely fairly obvious planning principle that the onus in the
first instance lies upon the local planning authority to justify refusing a
landowner permission to do what he wants on his own land.
The normal
function of a presumption in other branches of the law, and as a matter of
ordinary English, is that it prevails whether other things are equal. I do not
think that the words ‘unless that development would cause demonstrable harm to
interests of acknowledged importance’ take away from Circular 14/85 its
essential character as providing a presumption, and no more. In the present
case the Secretary of State seems to have misunderstood the nature of the
presumption. He has given it independent, perhaps even overriding, weight. But
logically this is inconsistent with the competing needs test. If the need for
the existing use and the need for the proposed new use were equal, then the
presumption would certainly cause the scales to tilt in favour of the proposed
new use. But how can the presumption weigh in the balance when the scale has
already tilted decisively in favour of the existing use, and the proposed new
use has ‘flown up and kicked the beam’?
This is not, as the judge said, to elevate the existing use of County
Hall from being a material consideration into a necessarily valid objection. It
is to apply the competing needs test in accordance with ordinary,
well-established principles and to confine the presumption to its proper
sphere. The Secretary of State cannot have thought that permission for the
proposed new use would not cause demonstrable harm to the ILEA. He cannot, on
the inspector’s finding, have
County Hall were not the only way to meet the ILEA’s requirement. That being
so, the only rational explanation for his decision is that he gave overriding
effect to the presumption. He must have given the presumption some unknown,
necessarily arbitrary, weight, as an independent factor in the equation. This,
with respect, was a misunderstanding of the circular.
Like Slade LJ
I would therefore quash the Secretary of State’s decision under section 245.
It is
unfortunate that the Secretary of State should have erred in respect of both
halves of his decision letter in this important appeal. But as Mr Ouseley was
the first to accept, this particular decision letter seems to be less than
meticulous.
STOCKER LJ:
I am indebted to Slade LJ for the descriptive
material contained in his judgment, which I have had the privilege of reading
in draft, and for the citations from the inspector’s report and the Secretary
of State’s decision letter, which accordingly I shall not repeat.
The
section 53 application
No dispute
arises in respect of the North, South and Island Blocks, since planning
permission has been granted in accordance with the inspector’s recommendation.
The issue is,
therefore, confined to the Main Block and to the complex regarded as a whole.
It seems to me
that two questions arise on this aspect of the appeal. (1) Is the inspector’s
conclusion with regard to the prior use of the complex reached in accordance
with the application of correct planning principles? And (2) is the Secretary of State’s decision
in accordance with the inspector’s recommendations?
As to the
first question, in my view the inspector did apply the correct test — the
character of the use or, as explained by Goff J in Shephard v Buckinghamshire
County Council (1966) 18 P & CR 419 at p 422, ‘the predominant nature
of the user’. In paras 2.89, 2.90 and 2.91 fully cited by Slade LJ, the
inspector gave his reasons for his conclusion that the ‘predominant use’ of the
complex had not been as offices in the ‘conventional’ or ‘usual’ sense but as
a
governmental one . . . with the distinct characteristics of an elected
government use. Such a use has characteristics of public debate and decision
making, administrative services, responding to queries from the public together
with a range of other public and ceremonial activities.
He concluded
that the use of the complex unconnected for government use would involve a
change of use.
Mr Robins QC
has argued that the inspector’s conclusion was erroneous. He cites from para
2.88, that ‘. . . the overall use of the complex can be characterised as an
administrative one in the sense that it is administering things . . .’ should
have constrained the inspector to hold that the predominant use of the complex
was for offices and that the conclusion is not affected by the fact that a
decision-making process may proceed or be part of the administrative process
and that in the finding that the previous use was for the exercise of local
government’s statutory functions the inspector confused the ‘predominant
purpose’ with the identity of the occupier.
He supported
his submission with the argument that, since a far larger proportion of space
in the complex was undoubtedly used as offices, if individually regarded, to
characterise the use of the whole complex by reference to the functions carried
out in a small part of it in the Main Block was
government functions the offices had no purpose to fulfil. The activities
carried on in each of the offices were dictated by, and thus ancillary to, the
decisions taken in the debating chamber and other committee chambers. Without
those decisions, there was no function to be performed in the offices. Thus to
categorise the functions of the whole complex as offices when that office use
is for the sole purpose of implementing and administering local government
decisions taken in the debating chamber and other parts of the Main Block to
which the public had an access would indeed be a case of ‘the tail wagging the
dog’, albeit that the ‘tail’ was a long one. I therefore consider that the
conclusion of the inspector to the effect that the ‘predominant use’ of the
whole complex was sui generis and did not fall within the description of
‘office use’ was justified, and his reasons for reaching that decision were
proper and not erroneous in law. It follows that his recommendation to the
Secretary of State was appropriate and also not subject to effective challenge.
As to the
second question, it is not clear from his decision letter whether the Secretary
of State was or was not approving the recommendation of the inspector. In the
passage cited by Slade LJ, he seems to have accepted the inspector’s general
conclusion and the reasons for it, but continued:
the distinct
characteristics of those functions is sufficiently different from commercial
office use to support the conclusion that the present or last use of the
planning unit should properly be regarded as sui generis.
He then
concluded that to use the whole or any part of the complex for office use
unrelated to any government function would involve material change of use.
The word
‘commercial’ does not appear in the inspector’s reasoning. It represents a
modification or limitation to that reasoning. It seems to me that the
explanation for the use of that word can be in only one of three ways:
(a) He regarded
the inspector’s reasoning as being similarly restricted. If he did, it seems to
me that his conclusion amounts to an error of law.
(b) He
appreciated that he was imposing a restricted interpretation on the inspector’s
reasoning. In my view, it may be that he did so in the belief that ‘business’
in class B1 of the 1987 order imported such a restriction. If this was the
explanation, then it seems to me that he was placing a false and erroneous
construction on the proper meaning of the words used and again that would
amount to an error of law.
(c) He was
using the word loosely and as a synonym for ‘conventional’ or that the word was
a typographical error. The judge accepted this as the explanation, but I agree
with my lords that it has never been corrected and must be assumed to be a
wrong explanation.
Accordingly, I
agree that the decision of the judge cannot stand and that the matter must be
remitted to the Secretary of State for further determination.
The grant
of planning permission
The only
observation I would wish to make is that either the Secretary of State rejected
the inspector’s recommendation that planning permission should not be granted
in respect of the complex as a whole or in respect of the Main Block on the
basis of the presumption referred to in Circular 14/85 and that this overrode
the balance of competing needs or, if this was not the reason, his granting of
planning permission having regard to the balance of competing needs was
irrational in the Wednesbury sense.
The Secretary
of State correctly set out the proper test in his decision letter, viz the
competing needs test. However, he does not seem to have applied it. If
the explanation for this lies in the fact that he considered that the
presumption applied in any case where the need for the preservation of the
existing use is not an overriding one, in my view the presumption can properly
tilt the scale only where the existing needs of the proposed and existing user
are finely balanced. It plays no part where the balance is tilted strongly in
favour of one need as opposed to the other. In this case the inspector, in
effect, found that the need to preserve the existing use was overwhelming
against the need for office space and clearly the proposed user for offices
would cause demonstrable harm to ILEA.
Unless,
therefore, some factor which is not revealed (such as foreknowledge of the
impending abolition of the ILEA) was operative upon the mind of the Secretary
of State, the only explanation for his decision can be that he gave overriding
weight to the presumption in circumstances in which the presumption cannot
properly have played any part in the light of the balance of competing needs in
favour of the existing use.
I agree,
therefore, that the Secretary of State’s decision should be quashed.
Five appeals
by London Residuary Body allowed, with costs against the Secretary of State for
the Environment in the Court of Appeal and below; four appeals by Secretary of
State for the Environment dismissed with costs in the Court of Appeal and
below; applications on behalf of the Secretary of State and the London
Residuary Body for leave to appeal to the House of Lords granted.
