Westminster City Council v Secretary of State for Communities And Local Government & Anor, England and Wales Court of Appeal (Civil Division), Judgment, Law, casemine.com

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Attorney(S)

Saira Kabir Sheikh QC and Isabella Tafur (instructed by Westminster City Council Legal Department) for the Appellant
Cain Ormondroyd (instructed by The Government Legal Service) for the First Respondent

Judges

LADY JUSTICE GLOSTER
LORD JUSTICE LONGMORE
LORD JUSTICE RICHARDS

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Westminster City Council v. Secretary of State for Communities And Local Government & Anor

Smart Summary

Factual and Procedural Background

This appeal concerns a planning enforcement notice issued by Westminster City Council regarding premises at 100-102 Westbourne Terrace, London W2. The notice alleged a breach of planning control due to a material change of use from a hotel (class C1) to a mixed use hotel and hostel (sui generis) without planning permission within the last 10 years. The lessee, Company A, appealed the notice under section 174 of the Town and Country Planning Act 1990. An inspector appointed by the Secretary of State allowed the appeal on grounds that the alleged matters had not occurred or did not constitute a breach of planning control. The council appealed to the High Court, which dismissed the appeal. The council now brings a further appeal to this court with permission granted by Judge Laws.

Legal Issues Presented

Whether Company A's use of the premises was, as a matter of fact, a mixed hotel and hostel use as alleged in the enforcement notice.
If so, whether this mixed use amounted to a material change of use requiring planning permission.

Arguments of the Parties

Appellant's Arguments (Westminster City Council)

The inspector erred in law by applying an "exclusive use" test, requiring that parts of the premises be exclusively hotel or hostel for a mixed use to exist, which has no legal basis.
On the inspector’s own factual findings, there was a mixed hotel and hostel use as alleged.
The inspector failed to consider relevant off-site effects, such as noise and disturbance impacting residential amenity, when determining whether there was a material change of use.

Respondent's Arguments (Secretary of State and Company A)

The inspector was entitled to make findings of fact as she did, and the council’s case amounted to disagreement with those findings.
The council’s case before the inspector was presented as an issue of exclusive use of parts of the premises, justifying the inspector’s approach.
Off-site impacts are relevant but fall within the overall test of change in character of use, which the inspector adequately applied.
The inspector’s reasoning, while not detailed on off-site impacts, was sufficient given the issues before her.

Interested Party's Arguments (Freehold Owner)

Unless there is a change in how the land is used, off-site impacts are irrelevant.
The inspector found no change in use, so consideration of off-site impacts was unnecessary.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Panayi v Secretary of State for the Environment and Hackney LBC (1985) 50 P&CR 109	Factors distinguishing hostel use from hotel use, such as dormitories, communal facilities, supervision, payment methods, and resident categories.	The court used Panayi’s factors as a framework to analyze whether the premises had a mixed use of hotel and hostel.
Commercial and Residential Property Development Company Limited v Secretary of State for the Environment [1982] JPL 513	Definition of hostel in planning law as basic, inexpensive accommodation with communal facilities, covering a range from long-term to transient stays.	Supported the interpretation of hostel characteristics relevant to the case.
Wipperman v Barking London Borough Council (1966) 17 P&CR 225	Recognition that a mixed or composite use of land can exist even if the different uses are mingled and not confined to distinct parts.	Confirmed that mixed use can subsist without exclusive spatial separation, relevant to the inspector’s error on exclusive use.
Webber v Minister of Housing and Local Government [1968] 1 WLR 29	Intermittent or seasonal use of land can amount to mixed use.	Supported the principle that mixed use need not be constant or spatially exclusive.
Hertfordshire County Council v Secretary of State for Communities and Local Government [2012] EWCA Civ 1473, [2013] JPL 560	Test for material change of use is whether there has been a change in the character of the use, including off-site effects.	Guided the court’s assessment of material change of use and the relevance of off-site impacts.
Forest of Dean District Council v Secretary of State for the Environment [1995] JPL 937	Off-site effects of a use are relevant in determining whether a change of use is material.	Supported the argument that off-site impacts such as noise and disturbance must be considered when assessing materiality.

Court's Reasoning and Analysis

The court first examined whether the inspector erred in law by applying an "exclusive use" test requiring parts of the premises to be exclusively hotel or hostel to find a mixed use. The court found that this was a legal error because mixed use can subsist without spatial exclusivity, as accepted by the Secretary of State and supported by precedent such as Wipperman. The inspector’s focus on exclusive use misled her, and given her factual findings, the court concluded that the premises did exhibit a mixed hotel and hostel use as alleged.

Regarding the second issue of material change of use, the court acknowledged the established legal test: a material change occurs when there is a change in the character of the use, including off-site effects. The inspector considered internal features and compared the current use to the previous hotel use and permitted uses within class C1. However, the inspector failed to explicitly consider the off-site impacts on residential amenity, particularly noise and disturbance, which were a central part of the council’s case. The court held that this omission was a legal error, as off-site effects are a relevant and necessary consideration in assessing materiality. The inspector’s reasoning was inadequate for failing to address this principal controversial issue.

Other arguments regarding the clarity of the council’s case and the sufficiency of the inspector’s reasoning were considered but did not alter the conclusion that errors of law occurred.

Holding and Implications

The court's final decision is to ALLOW THE APPEAL.

The effect of this decision is to remit the matter to the Secretary of State for re-hearing and determination in accordance with the court’s opinion, pursuant to CPR Practice Direction 52D. No new precedent is established beyond the application of existing principles. The court declined to address a further ground raised by Company A regarding the enforcement notice’s requirements, as it was not before the inspector or the court on this appeal.