BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Printable RTF version]
[Help]
Case No: QBCOF 99/0105/4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)
(MR CHRISTOPHER LOCKHART-MUMMERY QC)
(sitting as a Deputy Judge of the Queen's Bench Division)
Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday, 26th January 2000
B e f o r e :
LORD JUSTICE HENRY
LORD JUSTICE ROBERT WALKER
and
MR JUSTICE SCOTT BAKER
- - - - - - - - - - - - - - - - - - - - -
|
HYDE
PARK RESIDENCE LIMITED
|
Appellant
|
|
-
and -
|
|
|
THE
SECRETARY FOR THE ENVIRONMENT, TRANSPORT & THE REGIONS
&
WESTMINSTER CITY COUNCIL
|
Respondent
(1)
Respondent (2)
|
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
David Mole Esq, QC (instructed by Messrs Hammond Suddards for the
Appellant)
Philip Sales Esq (instructed by Treasury Solicitors for the First
Respondent)
David Holgate QC Esq (instructed by Westminster City Council
for the Second Respondent)
- - - - - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court
Crown Copyright ©
Wednesday, 26th January 2000
JUDGMENT
LORD JUSTICE HENRY:
1) No 55 Park Lane, London is a large 1930's custom-built block of flats which,
prior to its acquisition by the appellants (Hyde Park Residence Limited) had
been used for normal residential occupation.
2) However, the appellants wished to convert the flats into luxury
accommodation for short term visitors to London for business or other purposes.
By its nature, these visitors would be here for a relatively short period, but
the only restriction the appellants intended to impose was a minimum stay of
seven days.
3) This plan plainly offended Westminster City Council's planning policy, and
the importance that attached to maintaining a permanent resident population and
the local services to support it. Stable, well-supported residential
communities bring diversity and vitality to the borough. Accordingly, their
policy is to protect existing housing stock, to secure the maximum amount of
residential accommodation, and not normally to permit change of residential
accommodation to other uses. Planning permission for such change of use is to
be granted only in the most exceptional circumstances.
4) At the same time, the policy is to contain the growth of non-permanent uses
of the housing stock: see Policy H2A of the Unitary Development Plan:
"The City Council will normally refuse planning permission for the use of
residential accommodation as temporary sleeping accommodation and will be
vigilant in taking enforcement action against such uses whenever possible."
5) This is because such usage will inevitably reduce the proportion of housing
stock available for use by permanent residents.
6) Those policies (which we also know were broadly shared by the Royal Borough
of Kensington & Chelsea) are of long standing. They are reflected in
Section 25 of the Greater London Council (General Powers) Act, 1973 (as
amended) under which the use as temporary sleeping accommodation of any
residential premises in the area of Greater London involves a material change
of use for the purposes of what was then Section 22(1) of the Town &
Country Planning Act, 1971, and is now Section 55(1) of the consolidating Act
of 1990. Thus the change of use to temporary sleeping accommodation was
brought within planning control in the London Boroughs, but not in the rest of
the country.
7) In reliance on Section 25 of the 1973 Act, Westminster started these
enforcement proceedings. There was an enforcement notice for each flat, each
of which alleged the same breach of planning control:
"Without planning permission, change of use from permanent residential
accommodation to use for short term letting purposes, ie as temporary sleeping
accommodation within the meaning of the Greater London Council (General Powers)
Act, 1973, as amended, that is the occupation of residential premises as
sleeping accommodation by the same person for less than ninety consecutive
nights, such accommodation being provided (with or without services) for a
consideration either:
(i) by way of trade for money or money's worth; or
(ii) by reason of the employment of the occupant;
whether or not the relationship of landlord and tenant is thereby created."
8) The requirement of the notices was to stop so using the flats, the time for
compliance being three months in every case.
9) Those enforcement notices were appealed under Section 174(2) of the 1990 Act
by the appellants, on the grounds (a) that planning permission ought to be
granted, (c) that there was no breach of planning control and (g) that a longer
time for compliance should be permitted.
10) The Inspector found against the appellants on each of those three grounds,
and ground (c) alone was appealed to the High Court, where it was heard by Mr
Christopher Lockhart-Mummery QC, sitting as a deputy judge of the Queen's Bench
Division. He dismissed the appeal. I set out for convenience the statutory
material which he had to consider.
11) Westminster's case was simple. It rested on the plain words of Section 25
of the Greater London Council (General Powers) Act, 1973 which as amended
reads:
"25 (1) For the purposes of section 22(1) of the Act of 1971, the use as
temporary sleeping accommodation of any residential premises in Greater London
involves a material change of use of the premises and each part thereof which
is so used.
(2) In this section-
(a) `use as temporary sleeping accommodation' means use as sleeping
accommodation which is occupied by the same person for less than [ninety]
consecutive nights and which is provided (with or without other services) for a
consideration arising either-
(i) by way of trade for money or money's worth; or
(ii) by reason of the employment of the occupant;
whether or not the relationship of landlord and tenant is thereby created.
(b) `residential premises' means a building, or any part of a building which
was previously used, or was designed or constructed for use, as one or more
permanent residences."
12) Section 22(1) of the 1971 Act has now been consolidated into Section 55(1)
of the Town & Country Planning Act, 1990, and so by virtue of the
Interpretation Act, 1978 the section should be read as referring to Section
55(1) of the 1990 Act.
13) Ninety nights was substituted for twenty-two nights (thus strengthening the
Section, bringing more temporary sleeping accommodation under planning control)
by the Greater London Council (General Powers) Act 1983.
14) The appellants accepted that the flats were residential premises, as
defined in sub-section (2)(b), and that the change of use involved was to "...
use as temporary sleeping accommodation" as defined by sub-section (2)(a).
15) Section 55(1), as its title shows, defines development: "development"
means:
"... the carrying out of building , engineering, mining or other operations in,
on, over or under land, or the making of any material change in the use of any
buildings or other land."
16) Section 55(2) deals with exceptions, and provides:
"The following operations or uses of land shall not be taken for the purposes
of this Act to involved development of land:
...
(f) in the case of buildings or other land which are used for a purpose of any
class specified in an order made by the Secretary of State under this Section,
the use of the buildings or other land ... for any other purpose of the same
class."
That was a re-enactment of what was to be found in both the 1971 Act, and the
1972 Use Classes Order (UCO).
17) The appellants accept that until the revocation of that 1972 UCO in 1987,
such a change of use would have been development and would have required
planning permission. But their case is that the Town & Country Planning
(Use Classes) Order, 1987 introduced a new use class, and that the effect of
that was to render Section 25 ineffective, and to remove from planning control
that change of use.
18) The Use Classes Order reads innocuously enough:
"Class C3 Dwellinghouses
Use as a dwellinghouse (whether or not as a sole or main residence)-
(a) by a single person or by people living together as a family, or
(b) by not more than six residents living together as a single household
(including a household where care is provided for the residents)"
19) I take with gratitude from the Inspector's decision letter the best summary
of the way the appellants put their case:
"... while the proposal entails a material change of use because of the GLC
Act, it does not follow that development has taken place. Section 55(2)(f) of
the 1990 Act establishes that where a building or other land is used for a
purpose of any class specified in an order its use for any other purpose of the
same class shall not be taken to involve development. In this instance, it is
the Town and Country Planning (Use Classes) Order 1987 (UCO) which applies.
The lawful use of the flats is accepted to have been within Class C3
`dwellinghouses', as introduced by the UCO, and there is little doubt that the
proposed use is also of that class. That being so, you say that since both the
lawful and proposed residential purposes are of the same class, UCO Class C3,
the effect of Section 55(2)(f) is that development has not occurred."
20) It follows from that summary that to be successful in their challenge to
the enforcement notices, the appellants must establish two points. First, and
fundamentally, they must show that Section 25 now has no effect. If, as
primary legislation, it prevails over the Use Classes Order, 1987, then the
appellants must fail. If, however, Section 25 has no effect, then the second
point arises, namely whether the permanent and temporary residential uses are
to be treated as different purposes within the same class in order for Section
55(2)(f) to apply.
21) The Inspector found for Westminster on both issues. The judge found for
Westminster on the first, but against them on the second, in relation to which
both respondents lodge Respondent's Notices. On this issue, the judge found
that the changes of use which here occurred would not be taken as constituting
development outside London and absent Section 25.
22) The words of the Section could not be plainer. It is accepted that the use
complained of was "temporary sleeping accommodation" as there defined, and that
the premises had been previously used as residential premises. Mr Mole QC for
the appellants had to accept that until the 1987 UCO, the Section would having
succeeded in bringing within planning control the material change of use
complained of, change to use as temporary sleeping accommodation. But his
submission is that with the introduction of the UCO, Section 25 became a dead
letter. The judge records Mr Mole's concession on that point:
"Mr Mole was driven to accept, however, that if his arguments were correct, he
could not give the court an instance where the change of use defined by s.25 of
the 1973 Act would be subject to effective planning control."
23) Mr Mole could not point to any repeal, express or implied of Section 25.
He relied entirely on the significance of the fact that Section 25 defines what
is to be a material change of residential use in the area of Greater London,
and requires Section 55 of the 1990 Act to turn that change of use into
"development". That is so: Section 25 states in terms that "... for the
purposes of [Section 55]" the change of permanent residential use into use as
temporary sleeping accommodation is development. Section 55(1) says so. But,
submits Mr Mole, after the UCO 1987 introduces the residential use, Section
55(2)(f) states that change from permanent residential to temporary sleeping
accommodation is a change to "... another purpose of the same class ..." and so
is not development. Section 55(1) giveth, and Section 55(2) taketh away.
Meanwhile, Section 25 remained unrepealed but entirely emasculated, he
submitted.
24) The judge described Mr Mole's concession as "driven". Mr Mole accepted
that but said that it had been after "a short drive". However, the serious
point behind the inevitable concession is that there was simply no good reason
for the London Boroughs to urge or the legislature to intend the emasculating
of Section 25 which Mr Mole suggests the draftsman intended. We know that
Westminster have used the Section 25 powers 322 times over its 27 years' life.
The Inspector has found that the purpose of Section 25 (to bring the change of
use to temporary accommodation within planning control) is plain, and that
purpose has not changed, nor has it been found to be unnecessary. On the
evidence, the planning objectives of Westminster have remained unchanged from
1973 to date. We know that the legislature would have been looking at the
section in 1983 (when it was extended to cover premises let from 23 to 90
days), in 1987 with the Use Classes Order, and 1990 with the new consolidating
Act, yet it was not repealed. After those findings and comments the Inspector
cautiously said, in paragraph 19 of the decision letter that:
"... the possibility exists that the conflict which [the appellants] see
between these provisions was overlooked."
I will come back to those words.
25) Meanwhile, I see no significance at all in Section 25 defining what in
Greater London, but not elsewhere, automatically constituted a material change
of use. The wording of the section was what one would expect for such a
purpose. The fact that the phrase "material change of use" was used (rather
than "development") enables Mr Mole to mount his thesis because Section
55(2)(f) refers to one of the "... operations or uses of land ..." which shall
not amount to development. But I see no further significance in it. It is
common ground that Section 25 and Section 55 are to be read together. Section
25 provides that the temporary accommodation use "... involves a material
change of use". So it does. Section 55 identifies two categories of use which
constitute development: operations in, on, over or under land, and material
changes of use. The words used are natural in context, and not significant.
What is significant is that, on the appellant's construction, Section 55(1)
says that the change of use is development, and Section 55(2)(f) promptly says
it is not. Meanwhile, Section 25 is not repealed.
26) Mr Mole submits that that, effectively, is part of the master plan.
Section 25, Section 55 and the UCO, 1987 are all part of a regulatory whole -
the scheme, as he submits it operates, does not require repeals, nor the
reconciliation of one statutory provision with another. I cannot accept that
submission. It places too much weight on the general words "subject to the
following provisions of this section" at the beginning of Section 55(1). Had
the result that Mr Mole puts forward been intended by the draftsman, then it is
inconceivable that Section 25 would have been left there, unrepealed, serving
no purpose but to confuse all with an interest in town planning in Greater
London.
27) In my judgment, Section 25 is entirely unaffected by the subsequent
statutory activity. First, it has not been repealed, neither expressly nor by
implication (and I do not understand the appellants to argue otherwise). While
a later enactment may impliedly repeal an earlier enactment, that is only where
it has power to do so.
28) That is not this case. As Mr Sales and Mr Holgate QC for the first
respondent submitted, Section 25 is a provision in primary legislation, the
only purpose of which was to require that in Greater London planning permission
was required from the change of use from residential to temporary
accommodation.
29) The Use Classes Order is secondary legislation, and the general rule is
that specific statutory rights (such as Section 25) are not to be cut down by
subordinate legislation passed under the vires of a different Act (see R -v-
Secretary of State for Social Security, ex parte Joint Council for the Welfare
of Immigrants [1997] 1 WLR 275 at 290 and 293). While an Act may confer
power for the amendment of another Act by delegated legislation, any such power
is to be narrowly and strictly construed (see Bennion on Statutory
Interpretation 3rd Edition pp 174-175 and R -v- Secretary of State for
Social Security ex parte Britnell [1991] 1 WLR 198 at 204E).
30) Here the power to make the UCO was to be found in what is now Section
333(4) of the 1990 Act, and while Section 333(6)does create such a power,
neither of those sub-sections permits UCO's to amend primary legislation.
31) Second, Mr Holgate QC takes the point that even if the UCO had the force of
primary legislation it could not affect Section 25 because of the principle
that:
"Where the literal meaning of a general enactment covers a situation for which
specific provision is made by another enactment contained in an earlier Act, it
is presumed that the situation was intended to continue to be dealt with by the
specific provision rather than the later general one. Accordingly the earlier
specific provision is not treated as impliedly repealed." (Bennion on
Statutory Interpretation 3rd Edition, p 226)
32) The GLC Act makes specific provision that planning control should apply to
a particular type of use within a defined geographical area. The general
provision of the C3 Use Class and Section 55(2)(f) cannot be construed as
repealing, modifying or disapplying Section 25.
33) Third, it is quite clear to me that neither the draftsmen of Section 25,
nor the draftsmen that had to consider it in 1983, 1987 and 1990, ever intended
the result the appellants sought in their appeal. My reasons for that are:
i) there was no case for withdrawing the Section 25 protection from the Greater
London area in or since 1973.
ii) Had there been such a case, the London boroughs would have been consulted.
There is nothing to suggest they were.
iii) if the draftsmen in 1987 had intended the result the appellants contend
for, they would have achieved it by the simple repeal of the section in
1987.
34) These factors persuade me that the draftsmen cannot conceivably have
intended the result the appellants contend for. This, of course, is
conjecture. But in my judgment it is well founded conjecture. In these
circumstances, even if the appellants were right that, on a strictly literal
construction, Section 25 was stripped of all force, I would not so construe
Section 25. Strengthened by the recognition that even draftsmen may be
fallible (Bennion p 437 and R -v- Lynsey [1995] 3 AER 654), and
by the fact that even the 1973 draftsmen cannot have had an actual intention in
relation to unforeseen events in the future (see Bennion p 375), I would
feel justified if necessary (which it is not) to resort to a "strained
construction" on the basis that there would be "a repugnance" between the words
of Section 25 and the Use Classes Order 1987, and the consequences of a literal
interpretation are so undesirable that Parliament cannot have intended them.
(see Bennion p 356)
35) But in my judgment, no "strained" construction is necessary. Section 25
makes
"... the use as temporary sleeping accommodation of any residential premises in
Greater London ... a material change of use."
When construing the uses of land permitted by Section 55(2)(f) of the 1990 Act
the use as temporary sleeping accommodation must be construed as only applying
to uses outside Greater London. And were a strained construction necessary,
that would be it.
36) In arriving at my judgment I have been greatly assisted by the careful
judgment of the trial judge on this point, with which I agree. Accordingly, in
my judgment this appeal should be dismissed.
37) Having formed the clear view we did having heard all parties on this point,
we did not think it a profitable use of court time to go on to consider what
would be an obiter point on the Respondent's notice. That not-altogether
simple point must await a case outside the Greater London area. Within that
area it simply does not arise.
LORD JUSTICE ROBERT WALKER:
38) I agree.
MR JUSTICE SCOTT BAKER:
39) I also agree.
Order: Appeal dismissed. Application for leave to appeal to the
House of Lords refused. Judgment to take effect from today.
(This order does not form part of the approved Judgment)
BAILII:
Copyright Policy |
Disclaimers |
Privacy Policy |
Feedback |
Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/13.html
