Developer loses Planning Court battle over GPDO and unlawful conversion

A developer must pay costs in a case where it claimed the General Permitted Development Order applied even though an unlawful conversion was involved.

In the High Court Mrs Justice Lang found against RSBS Developments and in favour of the Secretary of State for Housing, Communities and Local Government and the London Borough of Brent.

RSBS challenged an inspector’s decision in respect of former office premises which it has converted into flats.

It appealed under section 289 of the Town and Country Planning Act 1990 against inspector Jessica Graham's decision to uphold an enforcement notice concerning an alleged breach of planning control issued by Brent.

The company also applied for statutory review, under section 288 of the same act, of Ms Graham’s decision to dismiss two further appeals against Brent’s decision to refuse a certificate of lawful use or development and a refusal of planning permission for external alterations to the premises.

In RSBS Developments Ltd v Secretary of State for Housing, Communities And Local Government & Anor [2020] EWHC 3077 Lang J said: “The issue is whether the inspector erred in her interpretation and application of Article 3(5) of the Town and Country Planning (General Permitted Development) (England) Order 2015, which led to the conclusion that the grant of prior approval could not apply to the material change of use in 2016.”

RSBS gained prior approval to convert the building to 16 flats and later gained planning permission for a first floor extension to a single storey extension at the rear of the building, for office use only.

But the extension was demolished and a two storey extension with a larger footprint constructed in its place.

Brent raised concerns and RSBS removed the second storey and later reduced the ground floor to approximately its original size.

It lacked planning permission for these works and sought this retrospectively, which Brent refused.

Brent later refused a certificate of lawfulness for residential use of four of the flats, and later issued an enforcement notice alleging a breach of planning control by unauthorised change of use of the premises to dwellings.

Ms Graham decided the change of use took place after the unauthorised two storey extension had been constructed and differed from plans given in the prior approval.

Lang J said: “In my judgment, it would be contrary to the legislative purpose of Article 3(5) to prevent its operation after the grant of prior approval.

“The principle of excluding permitted development rights where the ‘host' development is unlawful is well-established, both in the case law and in earlier orders.

“The absence of lawful planning permission for the ‘host' development is a matter of real significance.”.

She said RSBS’s submission that subsequent unlawful building operations were not capable of engaging Article 3(5) was “not supported by the natural and ordinary meaning of the words used in Article 3(5)”.

The judge said: “I conclude that the inspector was entitled to find that Article 3(5)(a) applied.

“For this reason, the material change of use from office use to residential use was unlawful. Therefore, even if the Inspector had not found that Article 3(5) of the GPDO was engaged, she would still have dismissed the appeals under section 174(2)(c) TCPA 1990.”

Mark Smulian