Putting the court before the horse

Fri, 24 Apr 2020

Putting the court before the horse – an unusual case of a developer seeking the intervention of the High Court before the determination of its planning appeal

In the recent case of T&P Real Estate Limited v The Mayor and Burgesses of the London Borough of Sutton [2020] EWHC 879 (Ch) Deputy Master Bowles described the background to the claim, and the application before him, as “…for a non-planner, not wholly straightforward”. In fairness, even for a planner, the subject matter of the claim is not uncomplicated involving as it did consideration of the interpretation, and effect of, an Article 4 Direction made in relation to the exercise of permitted development rights.

Those who deal regularly with questions arising from ‘permitted development’ will be well aware of just how complicated the practical application of those rights can be.

What was unusual in this particular case was the approach taken by the claimant who, in parallel to an as yet underdetermined planning appeal, issued a claim in the Business and Property Court seeking a declaration as to the proper interpretation of an Article 4 Direction made by the London Borough of Sutton (‘Sutton’). Sutton’s response, and the subject of the judgment, was an application to strike out that claim as an abuse of process.

The subject of the claim is a matter dear to the heart of many an urban planning authority – the exercise of ‘office-to-resi’ PD rights pursuant to Class O of the Town and Country Planning (General Permitted Development) (England) Order 2015 (and its predecessor the 1995 GPDO). In common with many other London Boroughs Sutton had sought to protect the provision and availability of office stock in their borough by making an Article 4 Direction to the effect that such permitted development was removed (i.e. withdrawing the PD right for a change of use from B1a (offices) to C3 (residential)).

The Article 4 Direction was confirmed in 2014 but modified by the SoS in July 2014 to exclude any building which had the benefit of a Prior Approval granted before the 29th January 2015.

The (then) owner had, in December 2014, secured such a Prior Approval. The building therefore fell within the exception. However, the scheme was never implemented and the Prior Approval lapsed in December 2017. The new owners, Lawlor (Holdings) Limited ‘Lawlor’ (not the claimant but a company related to it), made an application for Prior Approval in 2019 submitting that a new Prior Approval fell within the exception to the Article 4 Direction as the proper interpretation of that exclusion was that the Property retained the benefit of ‘office-to-resi’ PD rights (notwithstanding that the previous Prior Approval had lapsed). Lawlor sought to rely upon R (oao Berkshire Assets (West London) Ltd v London Borough of Hounslow [2018] EWHC 2896 (Admin) in this regard.

Sutton refused that Prior Approval application principally on the basis that the previous Prior Approval had lapsed and that in consequence the Article 4 Direction precluded Lawlor from exercising those PD rights by way of a new application i.e. the exception no longer applied. Lawlor appealed that refusal and the appeal awaits determination by the Planning Inspectorate (it having been heard on 19th November 2019).

Notwithstanding having exercised their right of appeal through the Lawlor company the claimant, in parallel, brought the present claim seeking a declaration as to the proper interpretation of the exclusion and, in effect, confirmation (or otherwise) of its PD right to convert the building. The obvious point being that if the claim succeeded the decision on the appeal might well have been moot and the usual sequence of application, refusal, appeal, statutory challenge (and potential appeal(s) following that) would be circumvented or at least the earlier stages of it leapfrogged.

All that interesting background aside the question before the court by virtue of Sutton’s application was “Can they do that?”. T&P argued so on the basis that the decision concerned not only public law rights but also private law considerations and that the matter was of wider public importance. In making those arguments T&P sought to avoid the ‘exclusivity principle’ (arising from O’Reilly v Mackman [1983] 2 AC 237) which would preclude them from running parallel proceedings.

Deputy Master Bowles was unconvinced holding that any ‘dilution’ in the exclusivity principle occasioned by subsequent case law did “…nothing…to undermine, or challenge, the core principle that purely public acts should be challenged, only, in public law proceedings” [36]. As to Sutton’s submission that the conduct of parallel proceedings was, of itself, an abuse of process the judge agreed “In my view, it is” [44] and “It cannot, in my judgment, be other than abusive, in circumstances where a properly constituted appeal tribunal is seised of an appeal, to bring parallel proceedings in respect of the very same point” [46].

So can the familiar sequence be leapfrogged? An emphatic ‘no’. Yet one can entirely understand the concerns raised by T&P.

T&P expressed their concern that even if the appeal was decided in their favour that in future decisions (either in relation to their property or others) that Sutton might, despite losing an appeal, continue to argue as to their interpretation of the exclusion. In delivering judgement it was said “Putting aside what, to a non-planner, seems the gross improbability that Sutton would behave as postulated…it is, in my view, plainly abusive for proceedings to continue, for the purpose of affording this supposed protection”.

Those regularly engaged in planning applications and appeals may well form a different view as to whether the contention that an authority might continue to argue a point lost in previous appeals represents a “gross improbability”

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