Wednesday, 2 November 2016

Stripey house – another twist in the tale


The saga of the house in Kensington that was painted in red and white stripes has become a lengthy and complex legal war of attrition.

There is no time or space to recount the whole story here. We came in at the point where an appeal from the magistrates’ court in respect a section 215 notice was dismissed by the Crown Court (see “Section 215 Notice – House Painting”, posted on Monday, 15 August 2016).

There had already been a long planning and legal battle by this time, in which neighbours had fought to resist the house owner’s development plans for the property. I have no intention of taking sides in this matter. Neighbours are understandably resistant to major development on their doorstep, especially where it involves basement excavations. On the other hand the owner of the property must have found the repeated thwarting of her development proposals deeply frustrating.

The owner, a Mrs Lisle-Mainwaring, has now won two planning appeals in respect of her development proposals, only to see both of these appeal decisions quashed in the High Court. The latest setback came in a judgment in the High Court last month (Carroll v. SSCLG [2016] EWHC 2462 (Admin)). This turned on a detailed examination of the correct approach to the determination of a planning application, and also of an appeal against the refusal of planning permission under section 78. The planning history of the house in question is somewhat complex. Having originally been a house (Use Class C3), the property had then become an office (Use Class B1), then a warehouse or storage facility (Use Class B8), both of which had been perfectly lawful changes of use.

The owner now wished to reinstate the original residential use, and to construct a double-storey basement, or alternatively, to demolish the building and replace it with a new dwelling. The Inspector refused permission for a basement extension, but he granted planning permission for demolition of the existing building, construction of a replacement dwelling, and change of use from Class B8 storage to Class C3 residential, subject to conditions. He also allowed an appeal granting planning permission for change of use to Class C3 residential use. It was the appeal decisions granting these planning permissions that were challenged in the High Court by a neighbour.

In the appeal, the Inspector had found that although the property had previously been in Class B1 office use, the current use of the property was Class B8 storage use. The LPA accepted there had been Class B8 storage use since at least January 2014 (although this was disputed by the Claimant neighbour). The Inspector held that a change of use from B8 to C3 would not be in breach of adopted planning policies. However, it was a material consideration that the use could revert to Class B1 office use from Class B8 storage use, as permitted development, whereas the possibility of a reversion to Class B1 would be lost if the use was changed to Class C3 residential use. Class B1 use would justify protection under the relevant local plan policy. Nonetheless, the prospects of reversion to Class B1 and the loss of that use, contrary to the planning policy in question, was given minimal weight by the Inspector.

In her High Court judgment, Mrs Justice Lang examined the proper approach to the determination of planning applications (and appeals). I do not propose to attempt a summary of this lengthy, but very helpful, exposition of the legal principles involved. But this passage in the judgment will no doubt serve as a very useful guide to planners and lawyers in the future.

The conclusion was that the Inspector had misdirected himself in law in his consideration of the possible future reversion to Class B1 use as a material consideration. When considering the weight to be accorded to the potential reversion to Class B1 use, it was relevant for the Inspector to consider, from an objective standpoint, what the likely future actions of the owner of the property would be (whether the owner was the appellant herself or another owner in the future). The Inspector had erred in disregarding this consideration, apparently on the grounds that “it is not appropriate subjectively to interpret her past conduct or anticipate her future actions regarding the appeal property”. On the authorities and in the circumstances of this case, he was required to make an objective assessment of the likelihood of reversion to Class B1 use, when deciding the question of weight, and his Decision Letter indicated that he did not do so. Furthermore, there was substantial evidence at the Inquiry that a reversion to Class B1 use from Class B8 use was likely, on commercial grounds, if planning permission for residential use was refused.

In her ladyship’s judgment, the Inspector’s erroneous approach to the material consideration of potential reversion to Class B1 use may have affected the outcome of the appeals, and so it would not have been appropriate for the Court to exercise its discretion not to quash the decision, and the decision was accordingly quashed.

So the saga of the stripey house continues. The owner might possibly try to pursue this matter to the Court of Appeal; alternatively, there will be a re-opened appeal to be determined, and it is not beyond the bounds of possibility that another Inspector might be persuaded to grant planning permission, while avoiding the legal error into which the previous inspector was found to have fallen. Clearly, the lengthy legal battle over the future of this controversial property still has some way to go.

© MARTIN H GOODALL

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