Company occupying two London flats largely to provide holiday accommodation for employees of associated companies operating abroad – Breach of condition notices served by council – Whether breach of condition prohibiting use for temporary sleeping accommodation – Whether accommodation provided for a consideration arising by reason of occupants’ employment – Notices quashed
At all material times the applicant, one of a group of companies with extensive overseas interests, owned two leasehold flats in Chelsea. Planning permission granted in 1987 for the conversion of the flats imposed a condition prohibiting use for any purpose specified in section 25 of the Greater London Council (General Powers) Act 1973, under which the use of residential premises as temporary sleeping accommodation involved a material change in use of the premises. Such use was defined in section 25(2)(a) to include, inter alia, occupation by the same person for less than 90 consecutive nights for a ‘consideration arising . . . by reason of the employment of the occupant’.
During the years 1994 and 1995 the applicant made a total of 224 rent-free ‘allocations’, each for a stay of between seven and 14 days, to the following classes of occupant: category A , 203 allocations to employees of associated companies, some with partners and families, on holiday visits to London; category B, seven allocations to employees of the applicant for social purposes; category C , 14 allocations to friends and directors of the applicant. In July 1996 the respondent council, having demanded and received those particulars from the applicant, served breach of condition notices under section 187A of the Town and Country Planning Act 1990 alleging occupation by persons by reason of the employment of the occupant. These were challenged by the applicant as being bad in law.
Held The notices were quashed.
1. It was not enough for the respondents to show that the accommodation was provided simply because of the employment of the occupant; they had to identify some consideration arising out of that employment. Despite the width of the notion of legal consideration (as expressed in terms of benefit or detriment in Currie v Misa (1875) LR 10 Exch 153) no such consideration could be found in a gratuitous reward for past service nor in a generalised objective of bolstering company morale. Thus on the facts no breach had occurred save in respect of a small minority of the occupants in category A.
2. Since the notices were issued on the basis that all the occupancies amounted to a breach, the respondents had clearly failed to have regard to material considerations, notably the extent of the breach and the possibility of alternative remedy.
Alun Alesbury (instructed by Travers Smith Braithwaite) appeared for the applicant; Mark Lowe QC (instructed by the solicitor to Kensington and Chelsea Royal London Borough Council) appeared for the respondents
