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
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	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)