Town and country planning–Applications to quash decision of Secretary of State dismissing appeals from local planning authority’s refusal to grant permission for use of first floor of premises at Southwark as solicitors’ offices–Decision challenged both as perverse and as disclosing errors of law on its face–Permission had been given in 1973 for the ground floor, previously used as a bakery, to be used for solicitors’ offices–Submission that Secretary of State’s decision was perverse rejected by judge–It was not possible to hold that decision was so unreasonable that no reasonable person could have reached it–Allegations of errors of law on the face of the decision also rejected–No ground for saying that the wrong questions had been asked–Decision letters should not be subjected to hypercritical analysis nor construed as if they were statutes–Applications dismissed
The applicants
in these proceedings, Sears Blok, a firm of solicitors, sought to have quashed
the decision of the Secretary of State dismissing their appeals against the
refusal of the
Camberwell Church Street, London SE5, as solicitors’ offices. The firm was
already occupying the ground floor for this purpose, planning permission having
been given in 1973 to change the use from a bakery to solicitors’ offices.
Matthew Horton
(instructed by Sears Blok) appeared on behalf of the applicants; Jonathan
Ruffer (instructed by the Treasury Solicitor) represented the first respondent,
the Secretary of State. The second respondents, the London Borough of
Southwark, were not represented and took no part in the proceedings.
Giving
judgment, LLOYD J said: In these proceedings Sears Blok, a firm of solicitors,
move to quash a decision of the Secretary of State for the Environment relating
to premises at 18 Camberwell Church Street in the London Borough of Southwark.
There were two appeals before the Secretary of State against the refusal by the
borough to grant planning permission for the use of the first floor of the
premises as solicitors’ offices. The Secretary of State dismissed both appeals.
They were dealt with together by the inspector in a decision letter dated
November 1 1977. The applicants attacked the decision on the ground that it was
perverse. Alternatively they say that there are errors of law on the face of
the decision letter and in particular that the inspector misconstrued the
provisions of the relevant development plans and in consequence asked himself
the wrong question.
The facts can
be stated very briefly. Camberwell Church Street is a busy shopping street in
South-East London. No 18 is on the south side and is four floors high. Between
1968 and 1974 the ground floor was used as a bakery. The first floor was
residential but vacant. The second and third floors were also residential. On
September 4 1973 the borough granted planning permission to change the use of
the ground floor from a bakery to solicitors’ offices. In November 1974 the
applicants acquired the property, no doubt for the purpose of carrying on their
practice. In March 1975 they applied for permission to change the first floor
from residential to office use. In July 1975 they moved in and they used both
the ground and first floor for their offices. On October 28 1975 planning
permission for use of the first floor as offices was refused. In 1976 they made
a further application for planning permission. This time they sought permission
to continue the use of the first-floor premises as offices and to convert the
second and third floors to a single self-contained maisonette. On December 10
1976 the borough once again refused permission. On March 14 1977 the applicants
appealed to the Secretary of State. There was a hearing before the inspector, J
Marsden, on October 12 1977 and he issued his decision letter, as I have
already mentioned, on behalf of the Secretary of State on November 1 1977.
In the
decision letter the inspector states the ‘determining issues’ as follows:
In the case
of both schemes whether the proposals would be so significantly contrary to the
provisions of the Greater London Development Plan concerning restriction of
offices as to be unacceptable; and whether the suggested change of use and
alterations would materially depart from the land use allocation of the Initial
Development Plan for Greater London and its intention that residential
accommodation should be retained, with or without adaptation, except in very
special circumstances.
In paragraph 6
the inspector identifies the two primary strategic policies of the Greater
London Development Plan as those relating to residential and office
accommodation. Paragraph 6 continues:
Paragraph
3.37 of the written statement states, inter alia, that so long as an overall
shortage of housing persists in London, planning permission will not normally
be given for a change from residential use of any residential building that can
still be used, with or without adaptation, for residential purposes. As to
offices the plan seeks to restrict such development to preferred locations. The
evidence showed that the appeal site does not fall within such an area. Even
small office suites, not requiring an office development permit, should only be
allowed in an appropriate zoning; and except in very special circumstances no
dwelling, or part of a dwelling, should be allowed for office use.
In pararaphs 7
to 12 the inspector considers a number of arguments put forward by the
applicants to justify a departure from the policies set out in the development
plans. Then in paragraph 13 he states his conclusions:
I have
considered all the other matters raised at the inquiry and in written
representations but, in my opinion, they are outweighed by the factors set out
above which have led to my decision. While I believe that, in some respects,
the issues are finely balanced I am not convinced that any overriding special
need has been proved for the specific use of the appeal property to allow an
exception to the current policies of the Greater London Development Plan and the
Initial Development Plan regarding office location and the restrictions to
prevent the loss of existing or potential housing accommodation.
Mr Horton on
behalf of the applicants argues that the decision of the inspector was
perverse, that is to say it was a decision to which no reasonable inspector
could have come. He relied on the admitted need for solicitors’ offices in the
area, having regard in particular to the proximity of the recently-opened
Camberwell Green Magistrates’ Court. He relied also on the fact that Camberwell
Church Street is a busy street, not particularly suitable for residential
accommodation and that in the initial development plan it is zoned for
commercial purposes with a shopping frontage. Since the borough itself granted
permission for office use in the self-same building in September 1973 no
possible objection could be taken to the proposal on the ground of its
location. As for the loss of residential accommodation, Mr Horton stressed that
the first floor had been vacant for a number of years, that the loss of a
single unit of accommodation would be so insignificant as to be almost de
minimis, and that the reinstatement for residential use while not wholly
impracticable would be expensive.
I have given
these and the other matters relied on by Mr Horton careful consideration. They
are strong reasons why the decision might well have gone the other way. The
inspector himself regarded the matter as being finely balanced. But the
question for me, of course, is not whether the inspector reached the right
decision but whether his decision was so unreasonable that no reasonable
inspector could have reached it. I am myself quite unable to take that view.
I was referred
to the decision of Sir Douglas Frank, sitting as a deputy judge of the High
Court, in the case of Niarchos (London) Ltd v Secretary of State for
the Environment (1977) 35 P&CR 259. In that case the Secretary of State
had, as in the present case, dismissed appeals against refusal of planning
permission for the continued use of premises in Mayfair as offices. The
decision of the Secretary of State was quashed on the ground that it was
perverse and unreasonable. In that case the inspector was treated as having
found as a fact that the costs of adapting the premises for residential use
were such that the proposed schemes were not economically viable. The Secretary
of State took the view that the financial considerations prevailing at the time
were not of such importance as to persuade him to permit an exception to the
policy under which further extensions of office use were not normally
permitted. The court held that the ‘true and only reasonable conclusion’ on the
facts was that the premises could not reasonably have been adapted for
residential accommodation. Accordingly the decision of the Secretary of State
was quashed.
I do not
regard the decision in Niarchos v Secretary of State for the
Environment as providing any support for the applicants in the present
case. In the first place the decision rested on the finding of fact that the
proposals were not economically viable. In the present case there is no
equivalent finding. On the contrary, in paragraph 9 of the decision letter the
inspector
residential use, albeit expensive, was not impracticable.’ Mr Horton argued that ‘not impracticable’ in
that context meant not physically impracticable, and that the expense
might still be such as to make the scheme economically impracticable. I
do not agree with that construction.
Secondly, the
decision in Niarchos v Secretary of State for the Environment
turned, as I read it, on the particular provisions of paragraph 2 of the
initial development plan whereas in the present case it turns on the much
broader question whether there should be an exception to the approved policy.
The cost of reinstating the first floor to residential use would, as it seems
to me, be only one factor in considering that question and not the sole factor
as it was in the Niarchos case: see report (supra) p 264.
I now turn to
the other main argument advanced by Mr Horton, that there are errors of law on
the face of the decision letter. It is covered by an amendment to his notice of
motion. I take first the change from residential to office use. Paragraph 3.37
of the Greater London Plan provides: ‘So long as an overall shortage of housing
persists in London, planning permission will not normally be given for a change
from residential use of any residential building that can still be used, with
or without adaptation, for residential purposes.’ In paragraph 13 of the decision letter the
inspector says that he had not been convinced of any ‘overriding special need’
for an exception to the policy set out in the Greater London Development Plan.
Mr Horton argued that in asking whether there was an overriding special need
for an exception the inspector has asked himself the wrong question. For it
suggests a much stricter test than anything to be found in paragraph 3.37 of
the written statement. The argument is even stronger, says Mr Horton, in
relation to the location of offices, which is covered by paragraph 4.14 of the
written statement as follows: ‘Within the framework of the overall policy for
office development (and subject to general considerations of labour supply and
distribution) the general locations in London where offices can be sited with
benefit are listed in Table 2.’ Mr
Horton argues that there is nothing in that paragraph to suggest that an
exception should only be allowed in the case of overriding special need. If the
inspector had asked himself the right question he might have reached, says Mr
Horton, a different result.
I would agree
that if the inspector has asked himself the wrong question his decision cannot
stand. But I can see no reason for taking that view. It is clear from paragraph
13 of the decision letter, and indeed from the decision letter read as a whole,
that the inspector thought of the initial development plan and the Greater
London Development Plan as being complementary to each other. The two documents
have to be read together. He cannot in my view be faulted in that respect. It
is true that in the event of any conflict the Greater London Development Plan
must prevail. But there is no question of any conflict here. Paragraph 17 of
the initial development plan provides: ‘Throughout the county, permission
(temporary or permanent) will not, except in very special circumstances, be
given for a change from residential use of any residential building which can
still be used, with or without adaptation, for residential purposes of any
kind.’ That language is reflected both
in paragraph 2 and paragraph 6 of the decision letter. Mr Horton argued that
there is a conflict between paragraph 17 of the initial development plan and
paragraph 3.37 of the Greater London Development Plan which I have already
quoted. Again I cannot agree. It may be that the initial development plan
provides a more stringent test in relation to conversion from residential to
office use than is to be found in the Greater London Development Plan. But that
does not mean that the two are in conflict or that the very special
circumstances required by the initial development plan should therefore be
ignored.
The inspector
was in my judgment entitled to ask himself the question: are there any very
special circumstances here to justify the change from residential to office
use? He was entitled to conclude that if
not the policy set out in paragraph 17 of the initial development plan should
prevail. It seems to me that on a fair reading of the decision letter that is
precisely the question which the inspector did ask himself. It is true that in
paragraph 13 he refers to overriding special need rather than very special
circumstances, and that need is only one of the factors to be taken into
account. But paragraph 13 is only a summary of the inspector’s conclusions. The
decision letter as a whole is clear enough. It would be quite wrong to require
the inspector, as was suggested by Mr Horton, to deal explicitly with every
argument advanced by the applicants, to dot every ‘i’ and to cross every
‘t.’ Like Forbes J in George Wimpey
& Co Ltd v Secretary of State for the Environment and Another
(1978) 250 EG 241, [1979] 1 EGLR 153 I would deplore any attempt to subject decision
letters to that sort of hypercritical analysis and to construe them as if they
were a statute.
There is in my
judgment no sound basis for the argument that the inspector misconstrued either
the Greater London Development Plan or the initial development plan or that he
asked himself the wrong question. For myself I can see no error of law on the
face of the decision letter. Nor is this a case where it can be said that the
inspector has failed to give any intelligible reasons at all. It follows that neither
of Mr Horton’s arguments in my view succeed and the applications must be
dismissed.
The
applications were dismissed with costs.