The Planning Inspectorate (APP/X5990/W/22/3292545) has dismissed an appeal for an office-to-hotel conversion in the first appeal to consider new restrictions on basement extensions and loss of office space in Westminster City Council’s new local plan.
The applicant sought permission to convert an office building, previously MI5 headquarters, into a private members’ club and hotel which included a three-storey basement extension. Permission was refused on the basis that the local plan restricted basement developments to a single storey and prevented office conversion. Interestingly, the planning committee did originally resolve to grant permission on the basis of previous local plan policies, but delays related to the section 106 agreement meant it was refused when remitted to the committee following adoption of the new local plan.
The appellant sought to rely on an exemption to the basement restriction policy which provided that “exceptions may be made on large sites with high levels of accessibility for construction”. However the inspector found the use of the word “may” meant this was discretionary and, in any event, the position of the main site entrance was such that there were not high levels of accessibility.
Concerns were also raised about the effects of noise, vibration and traffic resulting from the construction works on neighbouring amenity owing to the proximity of neighbours, with windows at Chesterfield House flats being as close as 1.5m in places. The appellant argued that compliance with the council’s Code of Construction Practice would make this acceptable, but the inspector found this would not reduce the effects to an acceptable level.
With regard to loss of office space, the local plan provided that loss to hotel space would only be permitted if supporting evidence demonstrated vacancy and marketing for at least 12 months. The appellant could not demonstrate compliance with this policy and argued that it shouldn’t apply as the private members’ club use was sui generis. The inspector rejected this, finding that the hotel use was a major component and the description of development clearly referred to hotel use.
The appellant also argued the council was effectively applying the policy retrospectively, but the inspector disagreed, referring to section 38(6) of the Planning and Compulsory Purchase Act 2004, which requires determinations to be made in accordance with the development plan unless material considerations indicate otherwise. This required determination of the appeal to be in accordance with the new local plan. The inspector also pointed out that the appellant had clear notice of the emerging policy when submitting its application.
This decision is an important reminder to applicants that submitting an application without compliance with an emerging local plan can be a risky strategy as, although a push to get the application granted before adoption may pay off in some circumstances, unpredicted delay could push an acceptable proposal into the realms of unacceptability.
Erica Ives is a solicitor in the planning and environmental team at Irwin Mitchell
