Bloomsbury conservation area–Council’s refusal to consider an application by the Rugby Estate for permission to redevelop two houses–Refusal based on agreement by estate governors with council on need for a ‘master plan’ for area–Refusal supported, having regard to ‘very special conditions’ of the application–Discussion whether governors’ co-operation in master plan proposals puts them into less favourable position than the ordinary applicant for planning permission
This was an
application by the Governors of Rugby School to quash a decision of the first
respondent, the Secretary of State for the Environment, dismissing an appeal
under section 36 of the Town and Country Planning Act 1971 from the refusal of
the second respondents, the London Borough of Camden, to give a decision on an
application for planning permission for development of a site in Lambs Conduit
Street, Bloomsbury, London.
Mr R Carnwath
(instructed by Iliffes) appeared for the applicants, and Mr G Slynn (instructed
by the Treasury Solicitor) represented the first respondent. The second
respondents took no part in the appeal.
Giving
judgment, WILLIS J said: This is an application made under the Town and Country
Planning Act 1971 by the Governors of Rugby School to quash a decision of the
Secretary of State for the Environment by which he dismissed their appeal to
him under section 36 of the Act against the failure of the Camden Council to
give a decision on an application for planning consent under section 29 of the
Act. The application was made on December 29 1972 and proposed the uniting of
the upper floors of 53 and 55 Lambs Conduit Street on the governors’ estate in
Bloomsbury to provide three four-person flats. The council declined a decision
upon the application in circumstances which will appear, and the governors
thereupon appealed to the Secretary of State under the default procedure of
section 37 of the Act. It was agreed to dispense with a formal hearing, and the
matter was referred to an inspector with plenary powers under the Ninth Schedule.
After viewing the site and the area, and considering the representations, the
inspector dismissed the appeal.
The Rugby
Estate includes a considerable number of houses occupied in the main by tenants
of long standing in single floors. A number of the houses are listed as being
of architectural or historic interest, and so they present considerable
problems in modernisation. Therefore the policy of the governors as a first
step, and in agreement with the Camden Council, has been to embark upon a scheme
of modernisation and improvement to provide up-to-date flats in non-listed
houses. The houses under appeal are in this category. In their statement on the
appeal the Camden Council point out that No 55 was vacant and No 53 had tenants
on two floors. The buildings, which are unlisted, are in the Bloomsbury
conservation area, and in a residential area at 200 persons per acre. The
council’s case, in brief, for declining to deal with the application and
inviting the Minister to dismiss the appeal was that piecemeal development in
such an area was bad planning practice, and that following certain ad hoc
applications in 1970 and 1971 the governors had agreed with the council’s
officers to prepare a master plan setting out the aims and objects of the
estate management proposals. The discussions were well advanced, and the plan
should, said the council, be finally agreed as an overall strategy before
individual applications were dealt with. The governors accepted that the
residential part of the appeal premises was programmed under stage II of the
overall plan so far as it had gone, but contended that the letting of the
ground-floor shop now would help to finance the essential improvement to the
residential accommodation and listed buildings. In his letter of decision dated
January 4 1974 the inspector states in paragraph 2:
It seems to
me that a decision in this case rests primarily on whether it is fair and
reasonable for the council to demand the production of a master plan covering
reconditioning and improvements to the properties within the Rugby Estate,
before considering individual applications affecting only some of the property.
In paragraph
3, after setting out the proposals designed to bring dilapidated premises up to
modern standard, he states:
I consider
that any such proposals should be welcomed but must be related to the wider
issue of improvement works within the Rugby Estate as a whole.
In paragraph
4, after supporting the council’s view that approval should be withheld from
the current proposal in advance of a comprehensive scheme, the inspector said:
In these
circumstances I do not consider it would be unreasonable for your clients to
press ahead and complete their proposals so that a programme of work can be
agreed upon with the council. Such a procedure would, in my view, be in the
best interests of the Rugby Estate as a whole, and of those at present living
within it in particular.
In paragraph
6, the inspector said:
I have
considered the other matters raised in the written representations but I am of
the opinion that they are not sufficient to outweigh the considerations which
have led to my decision.
He dismissed
the appeal. Counsel for the applicants takes a short point. He says that by
section 29 of the Act, which by reference governed the application, the scene
is set by its form. The applicant decides the nature of the application and is
entitled to have it dealt with in one or other of the ways provided under
section 29 (1). Where he is acting on appeal, whether under the normal or
default procedure, the Secretary of State is required, says counsel, to follow
the same course. The applicant formulated a detailed application which the
council declined to consider, and the inspector, by adopting the council’s
reasoning, has by purporting to give a considered refusal likewise failed to
determine the appeal as required under section 36, or has taken into account
collateral or irrelevant considerations. Counsel submits that any other view
involves the applicants being unfairly prejudiced compared with an individual
owner simply because they are estate owners and in this case because they have
shown their willingness to try to achieve an agreed master plan with the
council. In short counsel submits that the application and appeal were never
dealt with as required by sections 36 and 29. Mr Slynn, for the respondent,
accepts that if the decisive matter had been the council’s refusal to consider
the application in pursuance of their declared policy, their action would have
been contrary to the well-known statement of the law by Bankes LJ in R v
Port of London Authority, ex parte Kynoch Ltd [1919] 1 KB 176 at p 184,
and could not be supported; equally if the Minister had done likewise and
declined to give a decision. The Minister, says Mr Slynn, has not done
likewise, and the inspector’s report looked at as a whole, shows that although
he supports the council’s policy of not dealing with individual applications in
advance of agreement between the council and the governors on a master plan for
the whole estate, he has considered whether there are circumstances affecting
this particular application which would justify treating it as a special case
and granting permission. He has concluded there are not, and has therefore
dismissed the appeal. The Secretary of State, says Mr Slynn, is entitled to
have a policy and act upon it ‘provided that the existence of his general
policy does not preclude him from fairly judging all the issues which are
relevant to each individual case as it comes up for decision’ (see per Cooke J
in Stringer v Minister of Housing and Local Government [1970] 1
WLR 1281). Finally Mr Slynn stresses the very special circumstances of this
case, where the policy followed by the council and adopted by the Minister had
been acquiesced in by the governors until the present application, success in
which would bring some immediate financial gain.
This case has
given me some concern. I would have thought it difficult to justify a policy
which would entail refusing to consider, and on appeal refusing, applications
to modernise houses owned by third parties, for example on either side of Nos
53 and 55, simply because such a policy was in line with that adopted for the
Rugby Estate although no criticism could otherwise be made of the applications.
If that be right, why, as counsel for the applicants asks, should the Rugby
Estate be put in a less favourable position merely because they are estate
owners and are co-operating with the council?
If that question accurately represents the position here, it requires an
answer. I think in the end the decision of the Secretary of State cannot be
said, by its endorsement of the council’s policy, to be itself a failure to
exercise his statutory duty upon appeal. It would not be helpful to speculate
when a negative decision following a refusal to consider might amount to a
failure to act within the statute. It is sufficient for the purposes of my
decision in this case to say that I think that the question posed above by
counsel is not strictly accurate, and that there are very special conditions
present upon the Rugby Estate which explain the council’s policy and the
Secretary of State’s approval of it. It is not without importance that the
governors themselves support that policy in principle and have been active in
furthering it. It would thus require special circumstances, as it seems to me,
to justify permitting an individual application to proceed in advance of
agreement on a master plan if the restrictive policy being followed met in
principle with the approval of the Secretary of State. When the decision letter
is read as a whole, it seems to me that the approach of the inspector has been
(a) to consider the fairness of the policy; (b) to approve it in principle for
the reasons he gives; and finally (c) after viewing the area and considering
all the relevant facts to conclude that the application should not be treated
exceptionally. If that be the correct view of the inspector’s decision letter,
it seems to me to accord with the guidance to be found in the decision of Cooke
J in Stringer’s case. For the foregoing reasons, therefore, and in the
special circumstances of this case, I am satisfied that the Secretary of State
properly exercised his statutory duty in deciding to dismiss the appeal. The
motion fails and must be dismissed with costs.
