Appeal against decision of Secretary of State for the Environment upholding refusal of planning consent for use of 37 and 41-43 Park Street, Mayfair, as offices–Minister’s decision quashed–Failure to take into account cost of converting premises for residential use
These were two
applications by Niarchos (London) Ltd seeking orders quashing a decision of the
Secretary of State for the Environment dismissing appeals against the refusal
of planning permission to continue office use of the company’s premises at Park
Street, Mayfair.
David
Widdicombe QC and Matthew Horton (instructed by Coward Chance) appeared on
behalf of the applicants; Harry Woolf (instructed by the Treasury Solicitor)
represented the Secretary of State.
Giving
judgment, SIR DOUGLAS FRANK said that the premises were made up of a basement,
ground floor and five other floors with a mezzanine floor. The applicants did
not occupy the three upper floors which were sublet. Temporary planning
consents were granted for office use after the last war. They had been renewed
in the past, but when they came up for renewal in December 1973 consent was
refused.
There was an
appeal to the minister and after an inquiry in 1975 the inspector reported that
schemes produced by Westminster Council and Niarchos (London) Ltd for
conversion back to residential use were not economically viable. The inspector,
noting that the premises were in an area allocated primarily for residential
use, concluded that a sufficiently strong case had not been made out for
renewal of office use, but that the alternative, in the prevailing economic
circumstances, if the premises were not used as offices, was for them to stand
empty. In his opinion, therefore, it could not be said that the buildings could
be reasonably adapted for residential use at that time (1975). He recommended
that a temporary permission for five years should be given to allow time for
the economic situation to improve and for Niarchos (London) Ltd to find
alternative accommodation.
However, the
minister rejected the inspector’s recommendation and took the view that
financial consideration which made conversion unprofitable were not a factor of
such importance as to persuade him to permit an exception to the council’s
policy of not renewing temporary permissions for office use. He dismissed the
Niarchos appeal.
Niarchos now
claimed that the minister had failed to apply the tests in the development
plan. They complained that he had asked himself the wrong question, namely
whether the financial considerations which made conversion unprofitable were of
such importance as to warrant making an exception to the policy for the area.
His Lordship agreed. The policy was contained in the development plan and the
question that the minister should have asked himself was whether or not the
premises could reasonably be adapted for use as residences.
It was argued
by Mr Woolf that it was entirely a matter for the minister how he interpreted
the development plan, and further, that the minister was entitled to change his
policy from day to day. It was trite law, in his Lordship’s view, that the
minister could change his policy and, accordingly, he was not bound to apply the
policy in the development plan. However, when he expressed himself as deciding
a case in accordance with a stated policy it must follow that if he decided
otherwise than in accordance with that policy he misdirected himself and acted
in excess of his powers.
His Lordship
also rejected the submission that the minister was entitled to put his own
interpretation on the provisions of the development plan.
The provision
that premises should not be capable of being reasonably adapted was not
confined to physical practicability. The minister was bound to take into
account the financial implications of adapting the premises and the inevitable
conclusion was that the premises could not reasonably be adapted for
residential occupation.
The present
case was the first town planning decision which had been quashed for being
unreasonable, but his Lordship believed he was doing no more than applying an
established principle to particular facts.
The
applications were allowed with costs.