The road to permitted development is paved with good intentions... High Court tells Hounslow that what they meant to do, matters a whole lot less than what they actually did
Last week, the Administrative Court had the thankless task of informing the London Borough of Hounslow that an Article 4 Direction, which had been introduced to protect the Borough's remaining office stock from conversion to residential use, did not operate in the way that the Council believed it did*.
The Council had intended to introduce an Article 4 Direction that removed office to residential permitted development rights from all buildings except those which had obtained a prior approval for conversion to residential use which was still capable of being built out.
The Direction was drafted in the following terms:
" WHEREAS the Council of LONDON BOROUGH OF HOUNSLOW ("the Council") being the appropriate local planning authority within the meaning of article 4(5) of the Town and Country Planning (General Permitted Development) (England) Order 2015 ("the Order"), is satisfied that it is expedient that development of the description(s) set out in Class O of Part 3 of Schedule 2 of this Order should not be carried out on the land described in the Second Schedule to this Direction and shown edged red on the attached Plans ("the Areas") unless planning permission is granted on an application made under Part III of the Town and Country Planning Act 1990 (as amended)."
.....
"NOW THEREFORE the Council in pursuance of the power conferred on it by Article 4 of the Order and all other powers thereby enabling
DIRECTS THAT: the permission granted by Article 3 of the said Order shall not apply to development specified in the First Schedule to this Direction in respect of the Areas specified in the Second Schedule."
The First Schedule reads as follows:
"Development consisting of a change of use of a building and any land within its curtilage (excluding any building or land in relation to which prior approval under paragraphs O.2 and W of Part 3 of Schedule 2 to the Order has been granted or under the terms of those paragraphs is treated as granted before the date this Direction is confirmed) from a use falling within Class B1(a) (offices) of the Schedule to the Town and Country Planning (Use Classes) Order 1987 (as amended), to a use falling within Class C3 (dwellinghouses) of that Schedule being development comprised within Class O of Part 3 of Schedule 2 to the Order and not being development comprised within any other Class."
The Claimant, Berkshire Assets Limited, had obtained two grants of prior approval (on appeal) prior to the order being made and before the order was confirmed submitted another three prior approval applications to the Council, in an attempt to find a scheme which maximised the value which could be obtained from their property.
The Article 4 Direction came into effect after the three new applications had been submitted, but before the 56 day time period had expired. Following the Direction taking effect, the Council refused the three new applications, on the grounds that: "The site is subject to an Article 4 direction withdrawing permitted development rights afforded by Schedule 2, Part 3, Class O of the Town and Country Planning (General Permitted Development) (England) Order 2015 (As amended) and therefore Planning Permission is required for the development."
The Claimant judicially reviewed the refusals on the basis that the Council had misinterpreted the Article 4 Direction (which would have been an error of law), and the Council defended the claim.
In the words of the Judgment**:
"There are two competing and mutually inconsistent interpretations of the Direction advanced by the parties:
a) The Claimant says that if a prior approval has been granted in relation to a site or a building on the site, the Direction's effect is excluded in relation to that site or building; certainly in relation to extant prior approvals and therefore further applications for permitted development rights are able to be made.
b) The Defendant says that the exclusion simply protects existing permitted development right accrued on sites or in relation to the buildings at the date of the Direction, and therefore no further scope exists for further applications for permitted developments rights to be made, even on such sites or in relation to such buildings."
In choosing between these two interpretations, the Court applied the 'reasonable reader' test, which was explained in paragraphs 41 to 43 of the judgment as follows:
" 41. The Court's approach to interpretation of public law documents in the planning field is set out in Trump International Golf Club Scotland Limited v Scottish Ministers [2015] UKSC 74:
- "When the court is concerned with the interpretation of words in a condition in a public document such as a section 36 consent, it asks itself what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and the consent as a whole. This is an objective exercise in which the court will have regard to the natural and ordinary meaning of the relevant words, the overall purpose of the consent, any other conditions which case light on the purpose of the relevant words, and common sense" (Lord Hodge at paragraph 34).
42. The decision is now treated as part of planning law and has been applied to the construction of planning permissions and conditions (R(Skelmersdale Limited Partnership v West Lancashire Borough Council [2016] EWCA Civ 1260 and Lambeth v Secretary of State for Communities and Local Government [2018] EWCA Civ 844).
43. The reasonable reader must be notionally equipped with some knowledge of planning law and practice. In Lambeth v Secretary of State (citation above) the knowledge was said to extend to the Government's planning guidance; the well known distinction between a limited description of a permitted use and a condition; the general structure of the planning permission; the relevant planning history and the line of authority beginning with I'm your Man Ltd v Secretary of State for the Environment (1998) 77 P&CR 251."
Applying these rules to the Article 4 Direction, the Court had no choice but to side with the Claimant. Regardless of the Council's intentions, the Article 4 Direction that they had drafted was clear and unambiguous - it created an exemption for all relevant properties in the area covered by the order which had obtained prior approval for conversion to residential use prior to the order coming into effect. As a result, these buildings retained their permitted development rights and further prior approval applications could be made in respect of them.
The Council's intentions were irrelevant, what mattered was how they had drafted the Direction. In this instance, they had drafted it in such a way as to allow a wider exemption than they had originally proposed.
There are two lessons which can be learnt from this:
- When it comes to interpreting Article 4 Directions, the Court is a lot less interested in what a local authority intended to do; than what it actually did; and
- If you have an extant prior approval application for an office to residential scheme in Hounslow; it is quite possible that your building may still have its permitted development rights!
*R oao Berkshire Assets (West London) Limited v London Borough of Hounslow [2018] EWHC 2896 (Admin).
** Para 40
The 'reasonable reader' test for interpretation of public documents is an objective test. The essential difficulty that Ms Sheikh faced in her submissions was that the Council's interpretation requires the Court to ignore the natural and ordinary wording of the Direction, as well as the surrounding context and focus exclusively on the purpose behind the wording.
I am sympathetic to the position Hounslow finds itself in. The Council relied on wording supplied by the Secretary of State to other London boroughs for their Article 4 directions. Unfortunately for the Council, the wording relied on provided broader protection for developers than the Council intended. The result is that the Council did not do what it meant to do.”
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