Planning permission — Permission granted in 1988 for extension to existing restaurant — Subsequent change of use of restaurant to Class A1 bookshop — Whether permission for extension still capable of implementation — Pilkington principle — Whether, if permission implemented, premises could be used as restaurant without fresh permission
From about 1972
to 1987 the ground floor of premises at 46 Hampstead High Street, London NW3,
was used as a restaurant. In April 1987 P Ltd applied to the local planning
authority, Camden London Borough Council, for planning permission for a rear
extension. The application was refused and P Ltd appealed. By the time of the
inquiry in July 1988 the restaurant had closed and the premises were vacant. By
a decision letter dated October 10 1988 the Secretary of State for the
Environment allowed the appeal and granted planning permission ‘for the
erection of a single-storey rear extension to the ground floor restaurant . .
.’. Between November 1988 and August 1990 the premises were used for two periods
as a bookshop and then again became vacant. In June 1991 McDonald’s Property Co
Ltd took a lease of the ground floor with the intention that the premises
should be operated by the plaintiffs (a wholly-owned subsidiary) as a
McDonald’s restaurant. The plaintiffs intended to rely on the 1988 planning
permission. Camden contended that the permission had lapsed. In proceedings
brought by the plaintiffs by originating summons, Popplewell J granted
declarations that: (1) the 1988 planning permission remained valid and
subsisting; and (2) following implementation of the permission, the ground
floor of the premises might lawfully be used for the purposes of a restaurant.
Camden
appealed. They contended that at least between June 1989 and August 1990 there
had been a clear change of use from a Class A3 restaurant use to a Class A1 use
as a bookshop. Whereas that change was authorised by the Town and Country
Planning General Development Order 1988, a change of use from Class A1 to Class
A3 required specific planning permission. It followed that the ground floor was
no longer capable of being used lawfully as a restaurant unless a fresh
planning permission were obtained. Accordingly, it was no longer possible to
erect a rear extension ‘to the ground floor restaurant’ as the restaurant had
ceased to exist: the permission could not be implemented ‘according to its
terms’. Camden further argued that in any event the 1988 permission related
only to the extension and could not be used to validate a restaurant use of the
existing ground floor.
The 1988
planning permission was permission to carry out operational development. On its
proper construction, it was permission to alter the premises so that an
extension could be built and then used in conjunction with the existing ground
floor as a restaurant. Such permission remained capable of being implemented
according to its terms notwithstanding the intervening change of use of the
ground floor to a bookshop: see pp 62C-63G. Durham County Council v Secretary
of State for the Environment [1990] 1 PLR 103 applied.
Decision of
Popplewell J affirmed.
to in the judgments
Durham
County Council v Secretary of State for the
Environment [1990] 1 PLR 103; (1989) 60 P&CR 507; [1990] JPL 280, CA
Pilkington v Secretary of State for the Environment [1973] 1 WLR 1527;
[1974] 1 All ER 283; (1973) 72 LGR 303; 26 P&CR 508; [1974] EGD 787; 230 EG
1737, DC
Pioneer
Aggregates (UK) Ltd v Secretary of State for the
Environment [1985] AC 132; [1984] 3 WLR 32; [1984] 2 All ER 358; (1984) 82
LGR 488; 48 P&CR 95; [1984] EGD 1094; 272 EG 425, [1984] 2 EGLR 183; [1984]
JPL 651, HL
Appeal against
decision of Popplewell J
This was an
appeal by the defendants, Camden London Borough Council, against the decision
of Popplewell J on July 30 1992 granting declarations to the plaintiffs,
McDonald’s Restaurants Ltd, ‘that (1) the planning permission granted by the
Secretary of State for the Environment on October 10 1988 . . . for the
erection of a single-storey rear extension to the ground floor restaurant,
alterations to provide separate access to the first and second floor
residential accommodation and the installation of a new shop front at 46
Hampstead High Street, London NW3, remains valid and subsisting, and (2) following
upon implementation of the said planning permission the ground floor of the
said premises may lawfully be used for the purpose of a restaurant’.
Sullivan QC and Helen Mountfield (instructed by the solicitor to Camden London
Borough Council) appeared for the appellants
McDonald’s Restaurants Ltd.
following judgments were delivered.
NEILL LJ: This is an appeal by Camden London Borough Council (Camden) from the
order of Popplewell J dated July 30 1992 whereby he granted two declarations
relating to the development and use of premises at 46 Hampstead High Street,
London NW3. I shall refer to the terms of these declarations later.
In 1972 Camden
granted planning permission for the erection of a ground-floor rear kitchen
extension and ventilation duct and the installation of a new shop front at the
premises. The ground floor was then being used, and had been used for some
time, as a restaurant. The use of the premises as a restaurant continued for
another 15 years until the latter part of 1987.
In April 1987,
while the ground floor was still being used as a restaurant, a company called
Pepsico Food Service International applied for planning permission for a
further extension. In the application form submitted by Pepsico the details of
the proposal were stated as follows. In answer to the requirement, ‘Give
details of proposal indicating the purpose for which land/buildings are to be
used and including any change(s) of use’, the reply was:
Ground floor
is retaining existing restaurant use with extension to the rear.
The new
extension was stated to have an area of 74 m2 and the application
was accompanied by several plans.
That
application was refused by Camden. Pepsico then appealed. In July 1988 there
was a public hearing before an inspector, which was held at Camden Town Hall.
By that time the restaurant had closed and the premises were vacant.
The planning
inspector made a report dated August 10 1988 recommending that the appeal
should be allowed. The Secretary of State for the Environment accepted the
recommendation of the inspector that the appeal should be allowed and, in a
decision letter dated October 10 1988, granted planning permission in these
terms:
Planning
permission for the erection of a single-storey rear extension to the ground
floor restaurant, alterations to provide separate access to the first and
second floor residential accommodation and the installation of a new shop front
at 46 Hampstead High Street . . . in accordance with application . . . as
amended by [specified] revised drawings . . .
That
permission was granted subject to a number of conditions, of which the first
was as follows:
(i) The development hereby permitted shall be
begun not later than five years from the date of this letter.
In November
1988 the ground floor was used for a period of a few weeks as a bookshop. In
January 1989 the bookshop closed and the
once more as a bookshop. This use continued for the next 14 months or so until
August 1990. In August 1990 the bookshop closed and the premises have been
vacant ever since.
In June 1991
McDonald’s Property Co Ltd took a lease of the ground floor of the premises for
a term of 25 years. McDonald’s Property Co Ltd intended to grant an
inter-company lease to a wholly-owned subsidiary, McDonald’s Restaurants Ltd,
so that a restaurant could be opened on the ground floor. McDonald’s
Restaurants Ltd are the respondents to the present appeal.
The plan to
open a restaurant came to the attention of Camden and on November 15 1991 the
head of planning wrote to McDonald’s as follows:
It has been
widely reported that it is your intention to use the ground floor of the above
premises as a restaurant. The Council has been asked whether such use would
require planning permission.
The Council
is aware that the premises were used as a restaurant for some years after 1973
but this use had ceased by 1987. There is evidence that the premises were
subsequently used as a retail bookshop, this being a change of use which is
permitted development under the provisions of the Town & Country Planning
General Development Order. This would mean that the proposed change of use back
to a restaurant would require a grant of planning permission.
I draw this
matter to your attention in order to avoid possible future problems over
enforcement action.
In December
McDonald’s solicitors, who had been instructed by that stage, replied. They
said their clients intended to open a restaurant and ‘to implement and rely on
the planning permission granted in October 1988’. Further correspondence then
followed to which it is not necessary to refer in detail. It is sufficient to
refer to a letter from the legal division of Camden dated May 14 1992 in which
it was stated that the 1988 permission had lapsed and was no longer valid.
McDonald’s
then instituted the present proceedings by means of an originating summons
dated May 22 1992. It was that summons which came on for hearing before
Popplewell J. He upheld McDonald’s contention that the 1988 permission was
still valid and subsisting and by his order of July 30 1992 he granted the
following two declarations:
1. the planning
permission granted by the Secretary of State . . . on the 10th October 1988 . .
. for the erection of a single-storey rear extension to the ground floor
restaurant, alterations to provide separate access to the first and second
floor residential accommodation and the installation of a new shop front at 46
Hampstead High Street . . . remains valid and subsisting,
2. following
upon implementation of the said planning permission the ground floor of the
said premises may lawfully be used for the purpose of a restaurant.
Camden have
now appealed. It is common ground between the parties that the question whether
the 1988 permission remains valid and
according to its terms. Both parties referred us to the same three authorities:
Pilkington v Secretary of State for the Environment [1973] 1 WLR
1527, Pioneer Aggregates (UK) Ltd v Secretary of State for the
Environment [1985] AC 132 and Durham County Council v Secretary
of State for the Environment [1990] 1 PLR 103.
The difference
between the parties was not as to what statements of legal principles were
relevant, but as to how these statements of principle were to be applied to the
facts of the present case. Camden put forward two arguments: (a) that the
permission for ‘the erection of a single-storey rear extension to the ground
floor restaurant’ (a citation from the words in the planning permission) could
no longer be implemented according to its terms because the restaurant had ceased
to exist; (b) that even if the 1988 permission could still be implemented
according to its terms, the permission related only to the extension. The
permission could not be used to validate the use as a restaurant of the
existing ground floor.
In support of
the first argument counsel for Camden submitted that even if one ignored the
short period of a few weeks at the end of 1988 when the ground floor was used
as a bookshop, there was a clear change of use of the premises during the 14
months between June 1989 and August 1990. During that period the ground floor
was used as a bookshop. That was a change of use for which planning permission
was required, because use as a restaurant constituted a Class A3 use whereas
use as a bookshop fell within Class A1, as set out in the Schedule to the Town
and Country Planning (Use Classes) Order 1987 (SI 1987 No 764). It was
possible, however, by virtue of the provisions of the general development
order, to effect such a change of use without obtaining specific permission. We
were referred to Part 3 of Schedule 2 to the Town and Country Planning General
Development Order 1988 (SI 1988 No 1813). But, said counsel quite rightly, the
general development order did not allow development the other way, that is, one
could not change from Class A1 use to Class A3 use without specific permission.
It followed, therefore, that the ground floor had not only ceased to be a
restaurant, in fact it was no longer capable of being used lawfully as a
restaurant unless a fresh planning permission were obtained. Accordingly, it
was no longer possible to erect a rear extension ‘to the ground floor
restaurant’ because there was no longer a restaurant for which the new building
could provide an extension. It was not to the point that there had been no
physical changes in the premises since 1987 or that there was no physical
impediment to building an extension at the rear. There was no longer a
restaurant, and the 1988 permission could not be implemented ‘according to its
terms’, to use the phrase used in the cases.
As his second
argument counsel for Camden submitted that, even if he were wrong on the first
point, the permission related only to the extension and not to the existing
ground floor. The right which existed up to June 1989 to use the ground floor
as a restaurant was an existing use right. That right was lost by the change of
use in the period between June 1989 and August 1990 when the ground floor was
used as a bookshop. The existing use right was lost by the change of use and
could not be revived unless there was a fresh grant of permission. Moreover,
the 1988 permission could not be construed so as to cover the existing ground
floor. At the time of the 1987 application and the 1988 grant of permission the
then applicants did not need, and could not have obtained, permission for the
use of the existing ground floor as a restaurant because they already had an
existing use right. The judge erred in accepting McDonald’s submission that
planning permission for the extension created permission for the restaurant use
of the whole of the ground floor of which the extension was to form part. The
true effect of section 336 of the Town and Country Planning Act 1990 is that if
there is an application for planning permission for the change of use of part of
a building, there is a grant of planning permission to change the use of that
part of the building. It does not mean that the planning permission extends to
the whole building.
I find myself
unable to accept either of these arguments. Counsel for McDonald’s referred us
to the definition of development in section 55(1) of the Town and Country
Planning Act 1990. Subsection (1) is in these terms:
55.— (1) Subject to the following provisions of this section, in this
Act, except where the context otherwise requires, ‘development’, means the
carrying out of building, engineering, mining or other operations in, on, over
or under land, or the making of any material change in the use of any buildings
or other land.
The 1988
permission, he submitted, was a permission for the first category of
development, that is, operational development, which meant in this case the
carrying out of building on the land. It was not a grant of permission for a
material change of use.
In my view,
counsel was right to emphasise that the planning permission granted in 1988 was
permission to carry out operational development. The three cases to which we
were referred concerned development in this category. As Lord Scarman explained
in Pioneer Aggregates, a grant of planning permission enures for the
benefit of the land and for all persons for the time being interested in the
land. Accordingly, ‘There is no principle in the planning law that a valid
permission capable of being implemented according to its terms can be
abandoned.’: see per Lord Scarman [1985] AC 132 at p 145G. In the course
of his speech Lord Scarman approved the decision of the Divisional Court in Pilkington
v Secretary of State for the Environment [1973] 1 WLR 1527. In Pilkington
Lord Widgery CJ stated the rule to be applied as follows (p 1532A):
One looks
first of all to see the full scope of that which has been done or can be done
pursuant to the permission which has been implemented. One then looks at the
development which was permitted in the second permission, now sought to be
implemented, and one asks oneself whether it is possible to carry out the
development proposed in that second permission, having regard to that which was
done or authorised to be done under the permission which has been implemented.
This statement
of the law was approved by the Court of Appeal in
[1990] 1 PLR 103. In that case permission had been given in 1947 for the
development of the land and buildings ‘for the purpose of quarrying undertaking’.
Following the grant of this permission quarrying continued on the land until
about September 1956. In November 1957, however, the county council granted an
application for the change of use of the land from ‘disused sandpits to
controlled tip for household refuse’. Thereafter tipping on the land continued
until 1976, though during this period there was a limited amount of extraction
of sand. In 1986 Tarmac, who had come on the scene a few years before, began
extraction operations on the land. They had earlier given notice to the council
of what they proposed to do. The county council served an enforcement notice to
stop this extraction and submitted, inter alia, that the change of use
of the land to a site for tipping had brought to an end the rights enjoyed
under the earlier planning permission for operational development in the same
way as such subsequent events would extinguish existing use rights. When the
matter came before the court this argument was rejected both by the judge and
in the Court of Appeal. It was held that the question for consideration was:
was it possible to carry out the development covered by the permission having
regard to that which had been done or authorised to be done under a later
permission which had already been implemented?
In the present
case the building is still in existence. It remains possible to build the rear
extension and use it in conjunction with the existing building as a restaurant.
Counsel for Camden conceded that had the ground floor remained vacant since the
grant of the 1988 permission that permission could have been implemented
according to its terms. He submitted, however, that the position is radically
changed because for just over a year the ground floor was used as a bookshop
which brought about the change of use. It seems to me, however, with respect,
that this submission cannot be sustained in the light of the decision in the Durham
case. It was there held that a change of use did not nullify an earlier
planning permission for operational development provided that the earlier
permission could still be implemented according to its terms.
In my
judgment, the decision in the Durham case is indistinguishable. I
consider that the two declarations stand or fall together. Both depend on the
true meaning of the 1988 permission. When properly construed, I consider that
the permission that was granted in 1988 was permission to alter the premises so
that an extension could be built and then used in conjunction with the existing
ground floor as a restaurant.
For these
reasons I would dismiss the appeal, and I do not find it necessary to deal
separately with the additional argument based on section 75 of the Town and
Country Planning Act 1990.
RUSSELL LJ:
I agree.
ROSE LJ: I also agree.
Appeal
dismissed with costs.
