Planning Court judge rejects challenge to grant of permission for redevelopment of vacant car showroom to hotel

A planning policy to prevent the loss of office space is not engaged where that space was only an ancillary use to something else, the High Court has ruled.

Her Honour Judge Alice Robinson, sitting as a judge of the High Court, rejected a case argued by Fountain House Residents' Association (FHRA) that Westminster City Council should not have given planning consent for Central London Investments and Baker Street (2015) to convert a car showroom to a hotel.

The property concerned is a purpose-built 11 storey mansion block on Park Lane which occupies an entire street block.

It comprises a mixture of commercial uses on the lower levels and flats above. The ground floor was previously used as a car showroom and the lower ground floor as offices with the basement mostly used for storing vehicles.

Westminster gave planning consent in July 2023 for conversion to a hotel, with no catering or conference facilities.

FHRA objected to the application and the applicant responded. The council uploaded that document to its website but an error meant it was not publicly visible.

An officer’s report recommended granting planning permission and said in the course of his presentation to the planning committee: “Arguments about the office accommodation being standalone use and therefore this proposal being contrary to that in terms of the loss of that use are not accepted by officers as they were clearly part of the showrooms and ancillary to the showroom and its use.”

FHRA argued the council erred by misunderstanding the relevant legal test, reaching a decision involving a logical gap or leap of reasoning, failed adequately to explain its conclusion and/or misinterpreting Policy 13 of the City Plan on protecting office space.

It further argued Westminster irrationally applied development policies protecting the existing retail use of the site, and failed to include the applicant’s response to objections from FHRA members as a background paper contrary to section 100D of the 1972 Local Government  Act.

Westminster argued that FHRA’s submissions were devoid of reality as a company would not have offices below its car showroom unless it intended to use them with that showroom.

The council said FHRA was “searching for legalistic errors rather than trying to understand the meaning of the officer’s report in context”.

HHJ Robinson said once the officer had decided there was no functional separation between the showroom and offices, “he was perfectly entitled to find that the office use was ancillary as well as being part of the same planning unit.

“On that basis, the advice to members that there was no objection to the loss of the office space was a conclusion open to the planning officer. There was no error of law and no failure to give adequate reasons.”

She dismissed a second ground as Park Lane was not part of any designated ‘retail cluster’ under Westminster’s policies as was claimed.

HHJ Robinson said it was plain the site lay in a commercial area and a reference to it being mixed use did not detract from that, and left FHRA’s argument on the point “wholly without merit”.

She also rejected a ground concerning the mistakenly uploaded responses paper: ”It should have been clear to an informed reader of the officer’s report that the applicant had indeed submitted a written response on this issue.”

The judge concluded: ”I am not satisfied that there is an arguable case that the council’s failure to make the applicant's response to the claimant’s representations available on its website involved a lack of substantial compliance with the duty to disclose or gave rise to material prejudice such that the failure to do so was unlawful.”

Commenting on the case, Jack Parker, of Cornerstone Barristers, who acted for Westminster, said: “The case provides an illustrating analysis of the proper approach to whether a site is in a mixed use or whether there is main use to which others are ‘ancillary’.”

Mark Smulian