Town and country planning – Planning permission – London Squares Preservation Act 1931 – Claimant obtaining planning permission for rear extension to property – Extension including access to private garden square – Defendant local authority seeking removal of works to rear of property – Claimant applying for consent for works – Defendants denying jurisdiction to decide application – Claimant applying to quash decision – Application dismissed
The claimant was the freehold owner of a residential property at 25 Collingham Road, SW5, which formed part of a terrace of dwellings. The rear facades of the terrace formed the eastern boundary of a private garden square. The gardens were a protected square within the meaning of section 2(1) of the London Squares Preservation Act 1931. The freehold of the square was vested in its trustees and it was subject to the Kensington Improvement Act 1851. Section 51 of the 1851 Act provided that either the owners and occupiers, or the council tax payers, of the houses surrounding a garden square were to have the exclusive use of the square and no other person was entitled to use it. The square was surrounded by railings and was gated. It was not available for public use.
The property was formerly used as a hotel. The defendant local authority had granted planning permission for the alteration of use to three self-contained flats. Planning permission for alterations to the rear of the property included the creation of a rear lightwell extension at lower ground floor level with the provision of steps from ground floor doors to the garden. The defendants subsequently indicated that they would apply for an injunction under the 1931 Act to seek removal of the works to the rear of the property. The claimant responded by applying for consent for the works under section 3(2) of the 1931 Act. The defendants decided that they had no jurisdiction to grant consent for the works carried out.
The claimant applied to quash the defendants’ decision that the claimant’s application for permission should be recorded as invalid and declining jurisdiction to decide the application. The effect of that decision was also to deny the claimant the right of appeal it would otherwise have had under section 3(4) of the Act. It contended, amongst other things, that the defendants had: (1) erred in deciding that the lightwell could not for the purposes of section 3(2) be regarded as “underground works”; (ii) wrongly used the criteria in the 1931 Act for determining whether, on the merits, consent should be granted under section 3(2) for treating the application as invalid; and (iii) failed to consider whether the steps fell within section 3(1) and thus did not require consent under section 3(2).
Held: The application was dismissed.
(1) Section 3(2) had no application to the work that had been carried out. The purpose of the 1931 Act was “to provide for the preservation and for restricting the user of certain squares gardens and enclosures in the administrative county of London and for other purposes”. Section 3(2) was to be construed as allowing unrestricted use of the subsoil of a protected square so long as the square was unaffected or, provided there was consent, use of the subsoil of the square which brought with it such use of the surface as was reasonably necessary and proper for such subsoil use. Such use of the surface as could occur had to be for an underground purpose, namely for the construction and maintenance of underground works and underground buildings or for the erection of temporary buildings and for entrances exits and ventilations shafts in relation to such works and buildings.
The word “underground” in section 3 meant below the surface of the ground in accordance with its ordinary English meaning. Works which were situated below the ground level of a protected square were not underground works for the purposes of the 1931 Act, irrespective of whether they were exposed to the sky. Section 3(2) referred in its first part to owners not being prevented from using the subsoil for the construction and maintenance of underground works and buildings. It therefore contemplated the subsoil as the place for such work. The surface was separately referred to by the Act. As a matter of ordinary English the subsoil was always under something, namely the topsoil.
In the present case, the surface use of the protected square by the claimant was not for or in relation to the construction and maintenance of underground works or buildings. None of the works were underground works or buildings for the purposes of section 3(2).
(2) On the proper construction of the 1931 Act the criteria in section 3(5) simply provided a basis upon which a valid application may be refused on the merits, subject to the right of appeal under section 3(4). The defendants accepted that the criteria went only to the merits, and not to the validity, of an application. However, the defendants could not give consent for something which fell outside the terms of section 3(2). Since the defendants’ officer had found that the works in issue did not amount to underground works or buildings for the purposes of the 1931 Act, he was entitled to conclude that the application should be recorded as invalid and there had been no error of law in this regard.
(3) Section 3(1) required a structure to be for “the use and maintenance” of a square for an authorised purpose. In its application, the claimant stated the purpose of the structure was stated to be “to enable the occupants to gain access to the gardens” which had nothing to do with maintenance. Therefore, the claimant’s case under section 3(1) necessarily failed: Sevenoaks, Maidstone, and Tunbridge Railway Company v London, Chatham and Dover Railway Company (1879) 11 Ch D and Haydon v Kent County Council [1978] QB 343 considered.
James Maurici QC (instructed by Stitt & Co) appeared for the claimant; Timothy Straker QC and Dilpreet Dhanoa (instructed by bi-Borough Legal Services, Hammersmith & Fulham and Kensington & Chelsea) appeared for the defendants.
Eileen O’Grady, barrister
