Westminster City Council v Secretary of State for Communities and Local Government & Anor

This application is brought by the Claimant as the relevant local authority. It challenges the decision made by the First Defendant’s planning inspector to allow an appeal by the Second Defendant, Mrs Marilyn Acons, against the refusal of planning permission for the conversion of a garage into residential accommodation within the Claimant’s area of authority. The Second Defendant has given notice by a letter dated 20^th April 2012 from her solicitors Goodman Derrick, that she has been served (albeit late) with the application documentation and that neither she (the property manager for the property owner) nor the property owner, a Mr. Ignazio Marko Vok, wish to participate in the proceedings, in order to save costs and in the expectation (amply justified as it turned out) that the First Defendant will robustly defend the decision of the Inspector. I am therefore satisfied that it is fair to proceed with the application in the absence of the Second Defendant. In doing so I have taken into account the Second Defendant’s written submissions in the letter of 20^th April 2012, together with her witness statement which accompanied the letter.

The property to which the application relates is No. 50 Bathurst Mews in Bayswater, London, W2 (“the premises”). It is, as its address indicates, a former stable/carriage-house at ground floor level with accommodation above. In due course the ground floor was converted to two garages. In early 2002 the then owner of the property applied for planning permission to enlarge the living accommodation by converting one of the two garages into a sitting room. Planning permission was granted pursuant to a planning condition which stated that “the [remaining] garage shall not be used for any purpose (including use as living accommodation) other than the garaging or storage of private motor vehicles and no trade or business shall be carried out therefrom.” The condition was imposed on the ground that any other use of the remaining garage would be prejudicial to the amenities of the residential accommodation or of the area generally and would conflict with, inter alia, TRANS23 of the Claimant’s Replacement Unitary Development Plan (second deposit version). That condition reflected the Claimant’s policy of retaining private off-street parking in order to relieve the strain on lawful on-street parking facilities within the area.

Mr. Vok acquired the premises in September 2009. As presently configured it has two double bedrooms upstairs, the usual facilities, a modest-sized living room with a kitchen opening off it in the former garage downstairs, and private, off-road parking in the remaining unconverted garage. It is not clear whether, prior to the conversion of the first garage to a sitting room/kitchen, the upstairs premises contained two dedicated double bedrooms, as opposed to two bedsits or a bedroom and a sitting room. In December 2010 Mr. Vok, acting through the Second Defendant, applied for planning permission to develop the remaining garage by removing the dividing wall to make it one with the existing sitting room and by installing some windows at the top of the garage doors to add daylight. Planning consent was needed because of the condition imposed in 2002 that the remaining garage was not to be used otherwise than as a garage. That proposed development would, of course, leave the premises without any off-street parking.

On 31^st January 2011 the Claimant refused permission. The stated reason was that,

“Your development would result in the loss of protected off-street residential parking and add to an already high demand for on-street parking in the area and this would affect people already living in the area. This would not meet our parking policy as set out in STRA25, TRANS21 and TRANS23 of our Unitary Development Plan that we adopted in January 2007”

The Report attached to the Claimant’s decision contained a recommendation from the Highways Planning Manager in the following terms.

“The Highways Planning Manager has recommended that the proposal is refused on transportation grounds. Although the addition of one extra vehicle to the on-street parking environment will not push the parking stress over the 80% threshold it has the potential to cause adverse impacts on the parking levels in the vicinity. The development proposal does not include any off-street parking and will therefore result in the loss of one current off-street space within the garage of the existing building. The supporting text for TRANS21 states in paragraph 4.156 “Since the on-street residents’ parking scheme is heavily oversubscribed the City Council will generally resist the loss of any on-street [clearly a typographical error for off-street] parking spaces on development.” The lost [loss] of the car parking will add to existing on-street parking pressures and be contrary to TRANS21. Because of these highways issues it is on balance not considered appropriate to remove the condition and grant permission for the conversion of the garage space to living accommodation.”

The Second Defendant consulted a company called Firstplan which is apparently a planning consultant and on 6^th May 2011 Firstplan submitted an on-line appeal. This selected the written representation procedure for the determination of the appeal. The Appeal Statement stated at paragraph 6.2 that,

“The main issue for consideration is the loss of an existing off-street parking space. In our view, the proposal is unlikely to have any material impact on existing on-street parking in the area as the garage is currently used for storage and the current occupants do not own a car.”

As part of the Appeal Statement Firstplan offered a unilateral undertaking in draft format, stressing that it was offered in the event that the Inspector considered that the potential impact on on-street parking stress created by the loss of the garage was unacceptable. On 15^th June 2011 Firstplan provided the completed unilateral undertaking signed by Mr.Vok. The undertaking states that it is executed as a Deed and claims in paragraph 2 under the heading “LEGAL EFFECT” that it is a planning obligation for the purposes of section 106 of the Town and Country Planning Act 1990 as amended, which is “enforceable by the Council and which binds each and every part of the land [defined as 50 Bathurst Mews].” The undertaking provides as follows,

“The Owner hereby covenants and undertakes as follows:

1.

Not to apply to the Council for a Parking Permit in respect of the Land nor to knowingly permit any owner or occupier of the Land to apply to the Council for a Parking Permit and if such a permit is issued in respect of the Land it shall be surrendered to the Council within 7 days of written demand;

2.

That all material used for advertising or marketing the Land for letting or sale will notify prospective owners and occupiers that they will not be entitled to apply for a Parking Permit in respect of the Land;

3.

…

4.

That in respect of every lease granted, assigned, transferred or otherwise provided in respect of the Land the following covenant shall be imposed (or a covenant of substantially the same nature in respect of any tenancy agreement, licence or other instrument entitling occupation of the Land;

‘the lessee for himself and his successors in title being the owner or owners for the time being of the terms of years hereby granted hereby covenant with the lessor and separately with the Mayor and Burgesses of the City of Westminster not to apply for nor knowingly permit an application for a resident’s parking permit in respect of such premises and if such a permit is issued then it shall be surrendered within 7 days of written request to do so from the Council and this covenant shall also be enforceable by the Council under the Contracts (Rights of Third Parties) Act 1999 section 1’

5.

To send to the Executive Director a certified copy of the lease within 10 working days of the grant of any lease in respect of the Land.”

On 5^th September 2011 the Claimant sent a Statement of Case to the First Defendant’s Planning Inspectorate asking the Inspector not to accept the undertaking for four reasons (1) the undertaking is not one of the mitigation measures permitted by TRANS23 (Para 6.2) (2) the undertaking would not stop those residing in the property from parking in the street; it would only prevent them from using residents’ bays and would thus add to pressure on on-street parking outside those bays (Para 6.3) (3) enforcement of the undertaking by the Claimant’s outsourced Parking Team would pose administrative difficulties (Para 6.4) and (4) acceptance of the undertaking would create a dangerous precedent (Para 6.4 and 6.6).

The second of the above reasons is explained earlier in the Statement of Case. The explanation is that the premises are located within a controlled parking zone, where residents’ parking bays are controlled 24/7. Due to increases in housing stock since 2001 and an overall increase in the percentage of households owning a car the Claimant has had to accommodate approximately 3,287 additional residents’ cars in the period between 2001 and 2012. The Claimant has issued 35,095 residents’ parking permits but has only 32,998 residents’ parking places. Any resident who owns a car but does not have a resident’s parking permit must therefore compete for lawful single yellow line, meter and pay and display parking, with residents with parking permits who cannot find a vacant resident’s parking bay, other residents who have no residents’ parking permits and visitors to the area.

The fourth of the above reasons, as expanded by the Claimant’s counsel, was a “floodgates” argument, namely that if Mr.Vok’s undertaking was accepted as a justification for permitting this development, it would be difficult for the Claimant, and other local authorities, to resist other applications for development involving the loss of off-street parking, if accompanied by a similar undertaking, contrary to its TRANS23 policies.

Also in September 2011, the Second Defendant, by Firstplan, served a Supplement to its Appeal Statement in response to the Claimant’s Statement of Case, including the Claimant’s request for the undertaking not to be accepted. In relation to the undertaking paragraph 1.14 of the Supplement expressly acknowledged that (1) the Claimant does not “tend to accept obligations preventing residents from applying for residential parking permits” and (2) that “TRANS23 does not specifically refer to car free agreements as a means of mitigating the potential impact of additional cars on street” but insisted that there is no reason why an obligation of this nature could not be accepted. In paragraph 1.16 Firstplan asserted that in its experience obligations of this nature are commonly accepted by other local planning authorities across the country and in particular in London. It is not clear, however, whether by “obligations of this nature” Firstplan intended to refer to a unilateral undertaking not to apply for a resident’s parking permit, since the paragraph refers, by way of example, to the encouragement by many London Boroughs of car-free housing and car-free agreements, which are different both as to their effect and as to the enforceability of the obligation, to the personal undertaking offered by Mr. Vok which was not a car free agreement.

On 13^th October 2011 the Inspector carried out a site visit. On 31^st October 2011 the Inspector granted planning permission for the appeal development.

The Claimant seeks an order pursuant to section 288 of the Town and Country Planning Act 1990 that the decision of 31^st October 2011 be quashed on the grounds that (1) the Inspector took into account an irrelevant consideration, namely the undertaking by Mr. Vok, in the erroneous belief that the same was a valid planning obligation for the purposes of section 106 when it was in fact null or invalid (2) the Inspector failed to provide reasons for his decision that the proposed works conformed with the Claimant’s planning policy TRANS23 which provides that such works will only be permitted in exceptional circumstances, leading to the conclusion that he misconstrued or misapplied the policy. In relation to the first ground, the Claimant accepts that it did not challenge the validity of the undertaking as a section 106 planning obligation before the Inspector and must apply for leave to do so before this Court.

In relation to the first ground the First Defendant says that (1) although the Court has power to permit a new point to be raised on appeal, that power should be exercised sparingly; it would be unfair to do so in the present case because if the undertaking failed to meet the requirements of section 106 that was due to a technical drafting issue which could have been corrected had the point been raised timeously before the inspector (2) in any event even if the undertaking was not a section 106 planning obligation and enforceable by the procedures in that section, the Inspector was correct to find that it was enforceable against Mr. Vok personally (3) the Inspector did not in any event take the undertaking into account because it is dealt with in his decision letter under the heading “Preliminary Matters” and not in the section headed “Reasons”. Logically the last point falls to be determined first, because if the Inspector did not take the undertaking into account as a reason for granting planning permission it is irrelevant. In relation to the second ground, the First Defendant contends that the decision letter, fairly read, shows that the Inspector did take into account all relevant matters.

In addressing this and the other issues, I bear in mind, and it is common ground, that an Inspector’s decision letter is not to be construed as if it were an Act of Parliament or a contract but must be read in a straightforward manner, recognising that it is addressed to parties well aware of the issues and the arguments advanced.

The First Defendant is correct to say that the Inspector did not address the undertaking in the Reasons section of his decision letter. I am, however, quite unable to accept that he did not take the undertaking into account as one of the reasons for granting planning permission. In paragraph 5 of the decision letter the Inspector identifies the main issue to be whether the conversion of the garage to living accommodation “would have adverse implications on the availability of garaging and car parking in the area”. He has thus correctly focussed on the impact that the loss of the off road garage parking space would have on on-street car parking in the area if the garage was turned into residential accommodation and his earlier reference to the undertaking must be read in that context. The undertaking is dealt with in paragraph 4 in the following terms,

“In support of the appeal a completed section 106 Unilateral Undertaking has been provided by the owner of the property, the effect of which is to undertake not to apply for a Parking Permit for the occupiers of the property in surrounding streets where these are required. The Council request [sic] that the Undertaking not be accepted, not being in a form that it would normally entertain. However, it is not a matter of whether it is accepted or not, as it has been entered into as a deed, is in place and is binding on the owner. In my view it would be enforceable and would meet the tests imposed by the Community Infrastructure Levy Regulations 2010. It appears to me that it would go some considerable way towards providing the Local Highway Authority with the assurance it requires that there would not be an increase above the 80% parking stress threshold, to which I return below. “

In my view, the wording of that paragraph, on any fair reading, makes it clear that the Inspector has taken the undertaking into account as part of his reasons for granting planning permission, notwithstanding the placement of that paragraph within the decision letter. First, he has had specific regard to its enforceability, a point of no relevance if it is not to be taken into account. Secondly, he has had specific regard to whether it meets the tests imposed by the Community Infrastructure Levy Regulations 2010. The Regulations provide by Regulation 122 that,

“(2)

a planning obligation [defined as a planning obligation under section 106 of the Town and Country Planning Act 1990] may only constitute a reason for granting planning permission for the development if the obligation is-

(a)

necessary to make the development acceptable in planning terms;

(b)

directly related to the development; and

(c)

fairly and reasonably related in scale and kind to the development.”

Whether the undertaking meets the requirements of the Regulations is, therefore, again only relevant if it is to constitute a reason for granting planning permission. Thirdly, the last sentence of the paragraph is formulated in terms that are only consistent with the Inspector’s treating the undertaking as a factor which will mitigate the loss of the off-street parking place on the 80% parking stress threshold, to which he does indeed return, as he states he will do, in the Reasons section of his decision letter.

As to the First Defendant’s contention that the Inspector was correct to find that the undertaking was enforceable against Mr. Vok personally, this does not, assuming the contention is right, meet the objection that the Inspector took the undertaking into account as having the characteristics of, and enforceable as, a planning obligation, if in fact it was not a planning obligation.

In light of that conclusion I turn to consider whether the Claimant should be granted leave to challenge the validity of the undertaking as a section 106 planning obligation. I was referred by the First Defendant to a number of authorities concerning the circumstances in which the Court should allow a point to be raised on appeal that was not argued below. I accept the First Defendant’s submission that the Court should be slow to allow a party to raise a point not previously relied upon. I also accept that it should not do so if another party would be prejudiced because, for instance, the relevant evidence was not investigated below. If, however, there is no irremediable prejudice to the other party the Court may, not must, be prepared to give leave for a new point to be raised, and may do so more readily if a point of general importance is involved. I distill the foregoing principles from Bulale v. SSH [2009] QB 536 and Miskovic v SSWP [2011] 2 CMLR 20. In the present case there is no evidential reason for excluding the challenge to the validity of the undertaking; either it complies with the requirements of section 106 or it does not. The First Defendant contends that it would be unfair on the Second Defendant to allow the point to be argued now because (1) if it had been raised before the Inspector the Second Defendant would have had the opportunity of reformulating the undertaking so that it complied with section 106 (if it did not already do so) and (2) if the point is allowed and succeeds the Second Defendant will have to incur the cost of a new planning application. The first point would have more force if the Second Defendant had provided such a reformulation in the letter of 20^th April 2012 containing its detailed response to the Grounds of Challenge, in which the validity of the undertaking was fairly and squarely raised. It did not do so. Instead, it contended that, for a number of reasons, the undertaking complied with the requirements of section 106. In light of this I am not persuaded that the Second Defendant would have acted differently if the Claimant had raised the enforceability of the undertaking as a section 106 planning obligation before the Inspector. Furthermore, the only reformulation before me was that provided in the skeleton submissions of the First Defendant as follows.

“The Owner hereby covenants that the Property shall not be occupied for so long as the Owner or occupier of the property has made an application to X Authority for a parking permit which has not been decided or is in possession of such a parking permit.”

That, however, was not approved by the Second Defendant and Mr. Vok may very well not have been prepared to give such an undertaking, imposing as it does an extraordinary penalty on any occupier, in the event that Mr. Vok or a successor in title or an occupier applies for or obtains a resident’s parking permit. It was also not made clear by the First Defendant what lawful and effective steps the Claimant could take to obtain the suspension of occupation in the event of a breach of an undertaking in these terms. The putting out on the street by the Claimant of, say, a family of four because one of them has applied for a parking permit does not strike me as a procedure to which the court would readily lend its aid. As for the second point I am not persuaded that it is of sufficient merit to justify excluding the point, bearing in mind that the invalid planning obligation originated with the Second Defendant and that its validity was persisted in by that Defendant for the purposes of the present proceedings.

The Claimant points out that the validity of the undertaking as a section 106 planning obligation is of some general importance in light of the claim by the Second Defendant in the letter of 20^th April 2012 that “such undertakings are accepted as a matter of course by other local authorities” and the Claimant’s claim that the acceptance of what is a purely personal unilateral undertaking by the current owner will, if allowed to stand as justification for the permanent loss of an off-street parking place, create a very unsatisfactory precedent for the future. In light of these various considerations I am persuaded that I should give leave to the Claimant to challenge the validity of the undertaking.

Although both the First Defendant (rather faintly) and the Second Defendant contended, prior to the hearing, that the unilateral undertaking was a valid section 106 planning obligation, at the hearing the First Defendant conceded that it was not. In my view that concession was correctly made. In deference to the absent Second Defendant who has made no such concession, I will state shortly why in my view the undertaking does not comply with section 106.

The objectives of planning obligations are set out in section 106(1) in the following terms,

“(1)

Any person interested in land in the area of a local planning authority may, by agreement or otherwise, enter into an obligation (referred to in this section and sections 106A and 106B as “a planning obligation”) enforceable to the extent mentioned in subsection 3 -

(a)

Restricting the development or use of the land in any specified way,

(b)

Requiring specified operations or activities to be carried out in, on, under or over the land’;

(c)

Requiring the land to be used in any specified way; or

(d)

Requiring a sum or sums to be paid to the authority ... on a specified date or dates periodically.

…

(3)

Subject to sub-section (4) a planning obligation is enforceable by the authority identified in accordance with sub-section (9) -

(a)

against any person entering into the obligation; and

(b)

against any person deriving title from that person.

…

(5)

A restriction or requirement imposed under a planning injunction is enforceable by injunction.

…

(11)

a planning obligation shall be a local land charge …”

The unilateral undertaking entered into by Mr. Vok does not meet the requirements of any of sub-paragraphs (1)(a)-(d). In the result it does not have the characteristics required for a planning obligation. In the further result it is not enforceable as provided by sub-paragraphs (3) and (5) and, because it is not a planning obligation but a purely personal undertaking by Mr. Vok which does not run with the land, is not capable of being registered as a local land charge within the scope of sub-paragraph (11).

It follows from the foregoing that since the Inspector wrongly took the unilateral undertaking into account as a section 106 planning obligation, as a factor which went some way towards mitigating the loss of the off-street parking place and thus as a reason for allowing the appeal, his decision must be quashed on this ground alone.

As for the need for adequate reasons, the Claimant relied upon the speech of Lord Brown in South Buckinghamshire DC v. Porter (No.2) [2004] 1 WLR 1953 in which he said,

“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications.”

TRANS 23 provides so far as relevant as follows,

“(A)

The City Council will, where appropriate and practical, require off-street parking to be accommodated on the basis of a maximum provision of:

1 car park space per unit of residential accommodation containing two bedrooms or less ... provided that the aggregate provision does not exceed 1.5 spaces per dwelling.

The City Council will require that any such parking spaces shall be reserved for the sole permanent use of residents of the development and planning permissions shall be made conditional upon such a limitation, subject only to the possible subsequent allocation of motorcycle parking on the basis of five spaces per former car parking space. The permanent loss of any existing off-street residential car parking space will not be permitted otherwise than in exceptional circumstances [emboldening added].

(B)

For any new residential development including residential extensions and conversions the City Council may take into account the likelihood of additional demand for on-street parking arising from the development. The City Council will normally consider there to be a serious deficiency where additional demand would result in 80% or more of available legal on-street parking places being occupied during the day (i.e. parking bays) or at night (i.e. parking bays and single yellow lines) in the vicinity of the development. In these circumstances, the City Council will normally seek to resist development unless the potential impact of additional cars being parked on street in the vicinity is mitigated...

(C)

...

(D)

Residential development intended or designed without on site parking provision may be acceptable where:

1.

A surplus of on-street parking is available (see TRANS23(b)); and

2.

the development is extremely well served by public transport; and

3.

on-site parking is physically impossible or impractical, but key objectives of the UDP would be put at risk if the development were not permitted.

Developments falling into this category include:

(i)

The displacement of a commercial use that is inappropriately sited

(ii)

Listed building(s) in need of restoration

(iii)

Mixed use developments incorporating community uses

(iv)

Housing for those with a known and continuing special need.

Special justification will be required where five or more additional units are proposed.

4.

Where appropriate, the potential impact of additional cars being parked on-street in the vicinity of a proposed development will be mitigated by either:

(i)

A financial contribution towards the cost of parking improvements that would directly benefit residents, or

(ii)

the long-term provision, by the developer, of off-street parking in the vicinity”

The inspector dealt with TRANS23 in the following terms.

“8.

On the other hand, Policy TRANS23 in relation to residential development requires, where appropriate and practical, one off-street car space where a dwelling contains two bedrooms or less. It also indicates that the loss of existing off-street car parking spaces will not be permitted other than in exceptional circumstances. Although the policy appears to apply principally to new residential development this does include conversions to residential and it does contain certain principles that, in my judgment, are equally applicable to the appeal proposal.

This passage addresses Paragraph (A) of TRANS23. He continues,

“It [TRANS23] provides that the Council will take into account the extent of on-street parking stress, citing a figure of 80% as being the threshold above which parking space occupancy would indicate a serious deficiency in the area. The Council’s submissions on this appeal indicate that this is not an area where there is such a deficiency and the proposal would not push the parking stress over 80%.”

This passage addresses Paragraph (B). Finally, he states,

“The policy also indicates that new housing with no on-site provision may be acceptable where the development is well served by public transport. I found Bathurst Mews to be well-served by public transport, being within a five minute walk of Paddington Station and Lancaster Gate underground station.”

This passage addresses Paragraph (D).

In light of the Claimant’s claim that it is left in doubt as to whether the Inspector misunderstood TRANS23 or failed to apply it properly, it is necessary to consider the relevance of paragraphs (A), (B) and (D) to the Bathurst Mews development. Paragraph (A) of TRANS23 does not distinguish between developments that are new ab initio and developments involving the conversion of existing premises to residential use. The inspector was, therefore, right to find that TRANS23 applied generally to both. The policy statement at the end of paragraph (A) should, in consequence, have been at the centre of the inspector’s focus for two reasons. First the policy statement is formulated in mandatory language. Secondly, the only reason why the proposed development was subject to planning consent was because there was already a condition in force requiring the garage to remain undeveloped in order, inter alia, to comply with TRANS23. Yet the inspector does not refer expressly to this policy statement again and nowhere does he state what exceptional reasons existed which justified the loss of the existing off street parking place.

Instead he turns immediately to rely on certain aspects of the policies in Paragraphs (B) and (D). The policy in Paragraph (B) addresses developments that give rise to the likelihood of additional demand for on street parking. The proposed Bathhurst Mews development consists primarily of the enlargement of the sitting room to serve the existing two double bedrooms and thus does not give rise to the likelihood of additional demand for on-street parking. (cf: the creation of a new bedroom or a flat within an existing house or the construction of an entirely new house or houses, any of which will or may bring additional residents and cars to the area.) That policy, therefore, is irrelevant to the subject development. The policy in Paragraph (D) is concerned with residential development designed without on-site parking which may be acceptable if it meets all of three specified conditions. The proposed development appears to meet the first condition (if the reference back to Paragraph (B) of TRANS23 is intended to equate a surplus of on-street parking space with less than 80% occupation of legal parking places). I will assume in favour of the Defendants that it meets the second condition although that requires the development to be extremely well served by public transport whereas the inspector has found only that it is well served. It clearly does not meet the third condition. That is because it requires on-site parking to be physically impossible or impracticable but key objectives of the UDP to be at risk if the development is not permitted; this development is not, however, within the categories of development which constitute the key objectives of the UDP; in consequence it does not put them at risk. It follows that the policy in Paragraph (D) is also irrelevant to the subject development.

These considerations lead me to the conclusion that the Inspector’s decision must be quashed on the additional ground that he fails to identify the exceptional reasons required by the policy in Paragraph (A) to justify the permanent loss of the off-street parking place and that by taking into account parts of the policies in Paragraphs (B) and (D) which are inapplicable to the subject development he has misunderstood or misapplied TRANS23.