1. MR JUSTICE MITTING: Apart from a period during and after the Second World War, when the premises were requisitioned, Nos 10 and
2. From the early 1960s the premises were owned, and educational establishments were operated, by Davies Laing & Dick Ltd, which has since changed its name to Alpha Plus Group Ltd. From 1962 to 2004 the
3. From 1984 until 2003 an extension at the back of No 10 was the site of a nursery school, Dr Rolfe’s
4. It is common ground that there has existed throughout the time when the planning regime operated an established use of Nos 10 and 11 as non-residential use for the provision of education within Class D1(c) of the Use Classes Order currently in place. It is common ground that planning permission has at no time since 1st June 1987 been required for “any use not including a residential use for the provision of education.”
5. In 1984 Dr Rolfe’s
6. By an application for permission dated 18th February 1987, Davies Laing & Dick Ltd applied for “conversion of ground floor, first and second floors of rear annexe to Dr Rolfe’s
7. Permission was granted on 18th June 1987 to permit development in these terms:
“Continued use of the ground, first and second floor annexe as a nursery school, at 10
8. Five conditions were attached:
“1. Not more than 50 children shall attend the school at either the morning or afternoon session.
2. No loudspeaker or relay equipment or musical instruments shall be installed or used in such a manner as to cause noise nuisance to nearby occupiers.
3. Use of the outside areas shall be for a maximum of 1 hour, morning and afternoon, by no more than 15 children at one time.
4. The school shall operate only between 9.00 am and 4.30pm, Mondays to Fridays, during school terms.
5. Access to the premises the subject of this permission shall be from the
9. As I have recited, Dr Rolfe’s
“As the person responsible for the breach of the condition specified in paragraph 4 of this notice [that is to say condition 3], you are required to secure compliance with the stated condition by taking the following steps:-
(1) Use of the outside areas shall be for a maximum of 1 hour, morning and afternoon, by no more than 15 children at one time.”
The period for compliance was two calendar months after service of the notice.
10. There is no right of appeal to the planning inspector against such a notice. Accordingly, it can only be challenged by judicial review. Permission for judicial review was granted by His Honour Judge Mole QC, hence this review conducted by me.
11. A number of points are made by Mr Milner for the claimant. I can deal with one of them shortly. He submits that paragraph 5 of the breach of condition notice does not in terms specify what steps must be taken to comply with it and is therefore invalid.
12. This argument in my view has no merit. Although the notice could have been phrased in negative terms — that is to say, requiring the claimant to cease to use the outside areas save for a maximum of 15 children at one time, for a maximum of 1 hour, morning and afternoon, which notice Mr Milner accepts would be valid and effective — it did not have to do so to be effective. No one reading paragraph 5 of the breach of condition notice could be in any doubt but that that was what was required. The fact that the language chosen was to require compliance with the condition rather than to prohibit its breach does not seem to me to make any difference at all.
13. More fundamental arguments are however addressed, to which I now turn. It is common ground that, given that a nursery school is as much educational provision as a primary or secondary school or college, when the planning permission of 18th June 1987 was granted it was in fact unnecessary. The nursery school could have been started or continued to operate without any need for the grant of express permission, under the Use Classes Order, Class D1(c).
14. Accordingly, the condition, condition 3, upon which the defendant relies to found its breach of condition notice is a condition attached to an unnecessary permission. By itself that is not, it is again common ground, a complete answer to the breach of condition notice. Two answers are advanced by Mr Milner. First, as a matter of construction condition 3 only applies to the activities of a nursery school operating from the annexe. Further and alternatively, condition 3 did not remove the existing deemed permission for children to use the back areas as a playground, such use pre-existing the grant of permission. It is common ground that the planning unit is 10 and
15. The law is also not in doubt. It was considered and authoritatively stated in Newbury District Council v Secretary of State for the Environment [1981] AC 578. At page 599B-C Viscount Dilhorne stated:
“If, however, the grant of planning permission, whether it be permission to build or for a change of use, is of such a character that the implementation of the permission leads to the creation of a new planning unit, then I think that it is right to say that existing use rights attaching to the former planning unit are extinguished.”
16. At page 618A-C Lord Scarman observed, in relation to a proposition that for an existing planning use to be extinguished there had to be development, in the sense of the creation of new buildings:
“Clearly it will be much more difficult to establish the creation of a new planning unit or the beginning of a new chapter of planning history where the unnecessary permission which has been granted subject to conditions purports to authorise only a change of use. But such cases can exist, as at a later stage in the argument counsel for the Minister was able to show: e.g., where permission is granted to change the use of residential premises in single occupation to a multi-occupation use. There is in such a case a wholly new departure, a new chapter of planning history. It would be a negation of sound planning if the conditions attached to the multi-occupation use could be avoided merely because prior to such use the premises had the benefit of an existing residential use in single occupation.”
17. At page 626E-F
“We were asked by Mr Newey to say that the principle can only apply where the permission granted is to build or rebuild or the like and can never apply to cases where the permission is simply to change the use. I do not consider that any such limitation would be proper. It is not the reason for the break in planning history which is important. It is the existence of the break itself, whatever the reasons for it may have been. No doubt it will usually be a case of permission to build which will attract the doctrine, but I myself would not altogether rule out the possibility that in some circumstances the permitted change of use might be so radical as to fulfil the criteria of Prossor’s case.
In the present case there is no such break in the history. The change of use from repository to wholesale warehouse could not by any stretch of the imagination be said to have started a new planning history or created a new planning unit.”
18. Whatever language is used to describe the concept, it is clear that there must be a break in the planning history or change in the planning landscape or the creation of a new planning unit. None of those phrases are apt to describe the replacement of one class of educational establishment with another: a primary school by a nursery, a college by a primary school or nursery, or any combination within those types of activity.
19. Mr Lewis, for the council, accepts that there was no change in the planning unit. He submits that there was, however, a change in the planning history, a new chapter of planning history, because, he submits, the interference with the amenity of adjoining occupiers by children playing in the playground is likely to be greater than the use of the same space by students of a college attended by 16 to 18-year-olds. This is ultimately a matter of judgment. In my judgment, that argument cannot succeed. All of these uses are educational. There can be no doubt, as he concedes, that if, without applying for planning permission, the children from Nos 10 and 11 had been permitted to use the area at the back as a playground, then there would have been no new planning unit, or change in planning landscape, or break with the past, or new chapter in the planning history. All that would have occurred would have been an ordinary incident in the use of buildings as premises in which children were educated.
20. Accordingly, I reject Mr Lewis’ submission that the grant of an unnecessary planning permission on the facts of this case had the consequence of destroying existing use rights. Because those use rights included the ability of the school to allow children to play in the area at the back, so the right of the school to permit children in any number as a matter of planning law was never abrogated by this condition.
21. I turn now to Mr Milner’s alternative argument, founded, as it is, simply upon the construction of the grant of permission. Construing a grant of permission which is and always was unnecessary must be a curious exercise. But even with that caveat, I have no doubt that the grant related only to the use of the extension as a nursery and, ancillary to it, to the use by children attending the nursery of the area at the back of Nos 10 and 11, for a number of straightforward reasons. First, the application was only made in respect of the extension. Secondly, it was only made for the operation of a nursery in the extension. Thirdly, no one suggested in the application (or as far as I can tell considered in any discussion about the application) that what was being sought here was a particular permission, the price for which would be a restriction upon the use by other users of the buildings of the area at the rear. The wording of the condition is also consistent only with it applying to the use of the rear premises by occupants of the nursery. Condition 1 clearly only applies to the nursery. Condition 4 likewise clearly only applies to the nursery. Condition 5, reference to the premises being only gained from
22. Accordingly, the nursery having ceased to occupy the extension in 2003, it seems to me that the condition subject to which it was permitted to occupy it lapses with the end of the use of the extension by the nursery. I do not by that mean to say that if these premises were again used by a nursery that it would not be open to the council to seek to impose condition 3 in relation to the use of the extension by a nursery. But that is purely theoretical question which does not arise for decision today.
23. Accordingly, and for the two reasons that I have outlined, in my judgment Mr Milner is right: the condition is limited in effect. It did not have the effect of destroying existing permitted use. The occupiers of number 10 and 11 are as a matter of planning law permitted to allow children attending the educational establishments there conducted to use the areas at the back of Nos 10 and 11 as a playground and games area. My decision is only limited to the planning context. If the use of the areas at the back of Nos 10 and 11 amount to a statutory nuisance, nothing that I have said can or should be taken in any way to inhibit the defendant from taking appropriate action, but under different statutory regimes.
24. Given those conclusions, it is unnecessary for me to express any view on the remaining matters of debate.
25. As to the relief which I should grant consequent upon my decision, I accept that I should issue a declaration that the 1987 planning permission and condition 3 within it relate only to the use of the rear annexe at No 10 as a nursery school, and to the use of the open areas at the back of Nos 10 and 11 ancillary to the use of the annexe as a nursery school. I also declare that the use of the open areas at the back of Nos 10 and 11 for purposes ancillary to the educational use of any part of Nos 10 and 11, apart from the use of the annexe as a nursery, is unaffected by condition 3 of the 1987 planning permission.
26. Mr Milner, I think that gives you in modified form the declarations you seek.
27. MR MILNER: My Lord, it does. Would it be your Lordship’s desire also to quash the breach of condition notice on those grounds?
28. MR JUSTICE MITTING: I think that must fall, must it not, Mr Lewis?
29. MR LEWIS: I think so.
30. MR JUSTICE MITTING: Yes. I also quash the breach of condition notice.
31. You have an application for costs, I think, do you not?
32. MR MILNER: My Lord, I do, and you should have the two costs schedules which were exchanged last week.
33. MR JUSTICE MITTING: I do.
34. MR MILNER: So I formally apply for my costs in the sum there specified.
35. MR JUSTICE MITTING: Mr Lewis?
36. MR LEWIS: Yes. My Lord, I cannot obviously resist in principle the question of an order for costs, but I do have some submissions to make on their quantum.
37. My Lord, one of the things that may have struck you in looking the documentation is the fact that the number of witness statements are very considerable.
38. MR JUSTICE MITTING: Yes.
39. MR LEWIS: Whilst Judge Mole granted permission for an additional witness statement, we then got something like a further ten.
40. MR JUSTICE MITTING: Which relate to an issue that Mr Milner considered is not appropriate for judicial review?
41. MR LEWIS: That is right. As best one can, if I can just take this fairly quickly my Lord, I have sought to reduce the bill by reference to those sums which I think are probably reasonably attributable to that massive amount of evidence-gathering.
42. If one looks at the very first item, the attendances on the claimant, I would propose to reduce that by, say, two-thirds or at least the 15.2 hours, I wouldn’t quibble with the 1.7 and the 0.8. But if one were to reduce the 15.2 hours by two-thirds, let us say to 5 hours, one gets a figure of £1,375 instead of £4,180, which reduces that first subhead by £2,865.
43. I make no comment on the next head, the attendances on the defendant, in this respect.
44. In terms of the attendances on the court, I would suggest that one deletes items 4 and 5, the 7.6 and the 3.2 hours. That would still leave 3½ hours for the delivery of documents, which I think is fairly generous. But clearly a lot of this time must have been taken in filing all this various evidence. If one deletes the 7.6 and the 3.2, that gives a reduction of this third item of £1,258. Not a reduction to £1,258, but a reduction of £1,258.
45. I am also suggesting your Lordship that the next item, attendance on others, should all go, which reduces it of course by £6,550.
46. Work done on documents. My Lord, I appreciate this is sounds rather more scientific than it really was, but I am suggesting that the 12 hours is reduced to 4 hours, which makes its £1,100 as opposed to £3,300; that the 6.6 hours be reduced to two, which makes it £190. I do not quibble with the 0.9 hours. I suggest that the 11.5 be reduced to two, which makes it £230; and that number 5, the 22.4 hours, be reduced to two which makes it £240.
47. My Lord, by my calculations the total reduction under this fifth heading is a reduction of £6,177.50.
48. My Lord, I do not seek to upset for the purpose of the question of the evidence any of the other heads. But my Lord just sticking with this point about the evidence, by my calculations one has a total reduction on the bill of £17,206, which leaves a total of £23,140.35 to be substituted for the £40,000-odd, £23,140.35.
49. Now my Lord, if one takes that effectively as the starting point, we then have of course the fact that one of my learned friend’s other arguments based on the clarity of the notice has also been summarily rejected. He has won on two out of the four points. So, my Lord, I would suggest that the £23,140 might be also a little abated to reflect the fact that another of the arguments has also been lost, and by how much one would reduce that I am not…. These things are always somewhat — maybe £20,000 to make a round figure, but I cannot really assist your Lordship any further.
50. MR JUSTICE MITTING: Thank you. (Long pause)
51. MR MILNER: My Lord, I am instructed that these proposed reductions are rather excessive.
52. MR JUSTICE MITTING: You concede in principle that you ought not to have the costs of preparing unnecessary witness statements which go to an issue that you accepted were not appropriate for judicial review?
53. MR MILNER: My Lord, I think I concede in principle that that did not lead to a fruitful avenue.
54. MR JUSTICE MITTING: No.
55. MR MILNER: And therefore —
56. MR JUSTICE MITTING: So the question is how much comes off on that account.
57. MR MILNER: Indeed. I think my learned friend’s total was £23,140, which is pretty much half the bill, which seems to be a little excessive.
58. MR JUSTICE MITTING: Well, your solicitors will be in the best place to tell me how much time has been devoted to the additional witness statements and preparing documents based upon them.
59. MR MILNER: Would you like me to take instructions?
60. MR JUSTICE MITTING: Yes, please. (Pause)
61. MR MILNER: I am grateful, my Lord. Using the rough and ready approach, which this is, I am told that most of the work would have been work done on documents, which is the five itemised matters my learned friend (inaudible), which is the fifth item down —
62. MR JUSTICE MITTING: Yes.
63. MR MILNER: — and not in respect of the others.
64. MR JUSTICE MITTING: I think that cannot quite be right. Attendances on others must also play a part in it.
65. MR MILNER: I am told that was quite small actually, are the words. There was quite a lot of work done on the documents. My learned friend’s total reduction is £6,177 out of the £8,036, is that…?
66. MR LEWIS: Yes.
67. MR JUSTICE MITTING: Yes.
68. MR MILNER: My instructions are that that would be a fair reflection of an appropriate reduction to reflect the extra work that was carried out on the documents, so that is a total reduction of £6,177 or thereabouts.
69. MR JUSTICE MITTING: That may be where you end up, but I think you have to end up by looking at a number of the headings. First of all, attendances on claimant is bound to include some taking of instructions about which witnesses to go and see, what the topics are that should be covered, and so forth. Attentions on others, ditto the attendance on the witnesses and the work done on documents, and preparation of witness statements and so forth. It looks to me as if just focusing on the work done on documents is going to understate the deduction a bit. The £6,000-odd probably overstates the deduction that has to be made on account of work done on documents, but it may not overstate it by quite enough to scoop up the other —
70. MR MILNER: That was the rough-and-ready calculation that Mrs Elson sought to do. Can I just have another word on that?
71. MR JUSTICE MITTING: Yes. You have also gained 3 hours this afternoon too, so I think you have to concede a little on that. (Pause)
72. MR MILNER: The best we can do on this, “attendances on others” is me, but attendance on others would include some relevant matters. My learned friend has reduced it by two-thirds, our suggestion is a half, which is quite a substantial meeting of minds.
73. MR JUSTICE MITTING: Using the broad brush, you would concede about £8,000 off the bill before VAT?
74. MR MILNER: My Lord, yes.
75. MR JUSTICE MITTING: Yes.
76. Mr Lewis, are you able to do better than that?
77. MR LEWIS: My Lord, as far as it goes, on the evidence point I am very happy to accept that figure. I just remind your Lordship there is an addition point as well.
78. MR JUSTICE MITTING: I do have that in mind. I have reached a view about it and I am not going to call on Mr Milner to respond.
79. Two questions arise on costs, it being conceded that the defendant should pay the claimant’s costs in principle. The first is as to work done, unnecessarily in the event, on obtaining witness statements and other evidence about the use to which the premises had been put in the last 20 years. This evidence goes mainly to an immunity question which it was conceded, rightly by Mr Milner, at the start of proceedings was inappropriate for judicial review. There is no reason why the defendant should bear that cost.
80. There is a small saving by dint of the fact that this case has only taken half a day rather than the full day to hear.
81. On account of those two factors I decide that the claimant’s bill should be reduced by £8,000 plus VAT.
82. The second question that arises is Mr Lewis’ submission that the bill be reduced by a further 10 or 15 per cent on account of the fact that the claimant has not succeeded in all its arguments.
83. I reject that application. The claimant has succeeded in substance on the two principal arguments advanced. The remaining matters took little or no court time, and it would not be right in my view to reduce the claim for costs on that count.
84. Accordingly, I order that the defendant pay the claimant’s costs assessed in the sum of £32,346.35 plus VAT.
85. MR MILNER: I am obliged.
86. MR JUSTICE MITTING: Any further applications?
87. Thank you.
