Property firm accused of 'misuse and abuse' of the legal process in efforts to secure office-to-resi PD consent

A High Court judge has accused a property firm of "misuse and abuse" of the legal process in its efforts to secure consent for an office-to-residential permitted development (PD) conversion in south London because it lodged an appeal to the Planning Inspectorate at the same time as it pursued action through the courts.

London's Royal Courts of Justice
London's Royal Courts of Justice

The proposed change of use of Sutton Park House, in Carshalton Road, from office to residential would ordinarily be classified as  under the Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2015.

However, the London Borough of Sutton had in November 2013 taken steps to issue a direction (the direction) which had the effect of removing the relevant PD right in respect of a large part of the town centre.

That direction was subsequently modified by the secretary of state so as to exclude from its ambit any buildings or land in relation to which prior approval had been granted, or was treated as having been granted, prior to January 2015 when the direction came into effect (the exception).

T&P Real Estate Limited, which has a beneficial interest in Sutton Park House, argued that the property benefitted from the exception in that prior approval for the change of the building's use from offices to residential had been granted to its then owner in December 2014.

A company related to T&P - Lawlor (Holdings) Limited - made a further application for prior approval in March last year. However, the council refused the application on the basis that, as the December 2014 approval had lapsed in December 2017, the exception did not apply.

Lawlor was in the process of appealing against that decision to the Planning Inspectorate (PINS).

However, in parallel to those proceedings, T&P made a separate private application to the High Court for a declaration that the council had misinterpreted the exception in finding that the proposed change of use fell outside its ambit.

In acceding to the council's request to strike out that application, deputy master Timothy Bowles ruled that the doubling up of the private law proceedings with the parallel appeal to PINS amounted to an abuse of court process.

"It cannot, in my view, be a proportionate use of (court) resources to bring parallel proceedings in the way that T&P has done in this case," the judge said.

Turning to the wider issue of principle raised by the case, the judge found that the question of the correct interpretation of the direction and the exception to it was "quintessentially one of public, rather than private, law".

"It is not a matter that applies, or operates, exclusively as between T&P and Sutton [Council] but, rather, as acknowledged by T&P, is one that affects, potentially and equally, a number of property owners, or putative developers, in the area falling within the direction and who have the benefit of lapsed prior approvals."

He added: "In this case...the relevant process for a public law challenge to Sutton's decision would, ordinarily, be by way of the process Lawlor has adopted, that is to say by way of appeal to the Planning Inspectorate...and if needs be to the Planning Court."

The judge concluded: "In the result, I am satisfied that...this claim constitutes a misuse and abuse of...process and, for that reason, the claim must be struck out."

T&P Real Estate Limited v The Mayor and Burgesses of the London Borough of Sutton. Case Number: PT-2019-000766

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