Travis Perkins (Properties) Ltd v Westminster City Council & Ors, Court of Appeal - Administrative Court, November 03, 2017, [2017] EWHC 2738 (Admin)

Issuing Organization:Administrative Court
Actores:Travis Perkins (Properties) Ltd v Westminster City Council & Ors
Resolution Date:November 03, 2017
 
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Case No: CO/67/2017

Neutral Citation Number: [2017] EWHC 2738 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 03/11/2017

Before :

HIS HONOUR JUDGE JARMAN QC

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Between :

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Mr Gregory Jones QC (instructed by Freeths LLP) for the claimant

Ms Saira Kabir Sheikh QC and Mr Cain Ormondroyd instructed by the defendant

Mr Christopher Katkowski QC and Mr Richard Moules (instructed by Ashurst LLP) for the first interested party

The other interested parties did not appear and were not represented

Hearing dates: 31 October 2017

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JudgmentHH JUDGE JARMAN QC :

  1. With the permission of Lang J the claimant (Travis Perkins) seeks by way of judicial review to challenge the grant of planning permission by the defendant planning authority (the authority) dated 30 November 2016 for the redevelopment of a timber yard known as Newson's Yard behind Nos 41 to 63 Pimlico Road, London SW1W 8NE. The decision was made by the planning applications committee, on the basis of a report of the director of planning which recommended granting conditional permission subject to an agreement under section 106 of the Town and Country Planning Act 1990 to secure highway and parking benefits.

  2. The yard comprises a building which has external brick walls, internal brick pillars and a glass lantern roof. It has been occupied by Travis Perkins as a timber and builders' merchants since the 1990s and is let by the first interested party (Grosvenor), who applied for the permission. Grosvenor is seeking possession from Travis Perkins on the basis of the redevelopment, and those proceedings are presently stayed. The remaining interested parties are the freeholders.

  3. The yard is also known as No 61 Pimlico Road and that is where pedestrian and vehicular access/egress is gained to the road. It is enclosed on all four sides by nineteenth century residential buildings. On the Pimlico Road side, the buildings have shops on the ground floor.

  4. The permitted development is set out at some length in the permission. For present purposes, it can be summarised as the retention of the facades of Nos 41, 43, 57, 59 and 63 but with new shopfronts, the demolition of No 61 and construction of accommodation and ground to third floor levels, the creation of four Class A1 retail units at basement, ground and mezzanine level, seven Class C3 residential dwellings at first to third floor levels, and the replacement of the yard's glazed lantern roof.

  5. The structure and external appearance of the yard building would not be altered materially to accommodate this development, but internally it would be physically subdivided into retail units with each subdivision extended to the buildings fronting Pimlico Road. Accordingly, it would no longer be suitable for use as a timber or builders' merchants.

  6. The site lies within Belgravia Conservation Area, and was developed in the early to mid-nineteenth century. The yard was established towards the end of that period but was badly damaged by fire in 1877 and rebuilt. The only original features to survive are the original walls. A draft conservation area audit identified the buildings fronting on to Pimlico Road as ``unlisted buildings of merit'' which ``make a significant contribution to the character and appearance of that part of the conservation area.'' The yard itself and No 61 was identified as making a neutral contribution.

  7. Travis Perkins says that the authority erred in law when it granted the permission, and did so in three ways. The first is that it failed to take into account the harm that the proposed development would cause to the fabric of the yard building and to its historic use, as well as to local consumers, because of the cessation of the timber and builders' merchants use.

  8. The second error identified is a failure to take into account or apply policy S25 of the Westminster City Plan, which provides:

    ``Recognising Westminster's wider historic environment, its extensive heritage assets will be conserved, including its listed buildings, conservation areas, Westminster's World Heritage Site, its historic parks including five Royal Parks, squares, gardens and other open spaces, their settings, and its archaeological heritage. Historic and other important buildings should be upgraded sensitively, to improve their environmental performance and made them easily accessible.''

  9. The third error relied upon is a failure to take into account paragraph 135 of the National Planning Policy Framework (NPPF), which states:

    ``The effect of an application on the significance of a non-designated heritage asset should be taken into account in determining the application. In weighing applications that affect directly or indirectly non designated heritage assets, a balanced judgment will be required having regard to the scale of harm or loss and the significance of the heritage asset.''

  10. The NPPF defines heritage asset as:

    ``A building, monument, site, place, area or landscape identified as having a degree of significance meriting consideration in planning decisions, because of its heritage interest. Heritage asset includes designated heritage asset and assets identified by the local planning authority (including local listing.)''

  11. Mr Jones QC for Travis Perkins accepts that objections relating to the cessation of the yard as a timber and builders' merchants, cessation of that use as an historic use, and changes to the internal fabric of the yard building were all referred to in the report, but what he complains of is that the director in analysing the objections on these issues failed to advise the members of the committee how to deal with them and in particular failed to advise that these issues were material considerations to be weighed in the balance.

  12. His oral submissions went somewhat further than his skeleton argument by suggesting that the report substantially misled members when it indicated in several places that the subdivision of the internal space of the yard building and the erection of extended mezzanines fell outside planning control. He accepts that internal alterations to unlisted buildings are excluded from the statutory definition of development by virtue of section 55(2)(a) of the 1990 Act. However, he submits that as this application involved works which did amount to development, the report should have made clear that it was within the power and control of the authority to refuse permission taking into account these three considerations.

  13. He also accepts that the report did not have to refer expressly to Policy S25 or paragraph 135 of NPPF, as long as it dealt substantively with what was required by these policies. Again, he submits that the report did not do that.

  14. Ms Sheikh QC for the authority and Mr Katkowski QC for Grosvenor both accept that these were material considerations and submit that when the report is read fairly as a whole, each of these issues was sufficiently dealt with and that to say otherwise would be to approach the report hypercritically, and thus impermissibly.

  15. The proper ambit...

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