Hounslow loses High Court battle over PD applications to convert office into 200-plus flats

A developer has won its High Court battle against a London borough's refusal to consider its applications to convert an office block into more than 200 homes under permitted development (PD) rules.

London Borough of Hounslow: court challenge failed
London Borough of Hounslow: court challenge failed

The judge, Justine Thornton QC, backed the developer's argument that restrictions on PD rights introduced by the London Borough of Hounslow's article 4 direction - aiming to opt the site concerned out of such rules - did not apply to its property because of an extant office-to-residential prior approval.

She found that the wording of the council's direction had the unintended consequence of providing "broader protection for developers" than the council wanted, which mean the order "did not do what it meant to do".

Berkshire Assets (West London) Limited applied to the London Borough of Hounslow to convert a disused office block in Brentford into more than 200 flats. 

The developer sought to take advantage of permitted development (PD) rights allowing the conversion of offices into homes without planning permission, introduced in 2013, and subject only to the light-touch prior approval procedure.

After the council refused to grant prior consent for the conversion of the building, Park View in Great West Road, into either 213 or 171 residential units, the developer appealed. 

The refusal was subsequently reversed by a planning inspector, whose decision granted prior approval in October 2017.

In January last year, the council issued an article 4 direction giving notice of its intention to remove office-to-residential PD rights in 32 commercial areas of the borough, including a number of town centres and industrial estates. However, the direction was not due come into force until a year later.

In order to maximise the development potential of the site, Berkshire Assets submitted three further prior approval applications for alternative schemes in December last year, the largest involving 274 residential flats.

The article 4 direction came into effect on January 11 this year and, in March, Hounslow refused to consider the company's three applications.

In upholding the company's judicial review challenge to that decision, the judge ruled that properties, like Park View, that have the benefit of extant prior approvals, granted before January 11 2018, are exempt from restrictions on permitted development rights introduced by the direction.

According to the judgement, the order refers to "any building or land in relation to which prior approval has been granted ...before the date this direction is confirmed". 

The council's barrister had argued that the "only logical and common sense interpretation" of the direction "is that the words merely seek to protect specific development that already benefits from grants of prior approval at the time the Article 4 Direction was confirmed", not "applying literally to any building or site to which any prior approval has been granted in the past". 

But, in considering the "plain meaning" of the words used in the direction, the judge said: "The council's more restrictive interpretation, which limits the effect of the exclusion to specific development with extant prior approval, would require the word 'development' to be substituted for 'any building or land' in the wording of the direction."

She added: "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."

She noted that the council had, in any event, "already lost control" of Park View in terms of protecting it for employment use as it can be converted to residential use "without the need for any further approval by the council".

The council's refusal to consider the three December 2017 applications was quashed. However, the judge stopped short of declaring that work on the site may now commence in accordance with those applications.

In November last year, an inspector overturned Hounslow's refusal of plans to convert a vacant office block into more than 210 flats, finding that the proposals would have no significant adverse transport or highways impacts.

In September, government figures showed that office-to-residential permitted development applications have fallen by more than a fifth in the past year.

R on the Application of Berkshire Assets (West London) Limited v London Borough of Hounslow. Case Number: CO/1583/2018

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