Neutral Citation Number:  EWHC 435 (Admin)
IN THE HIGH COURT OF JUSTICE CO/2544/2001
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Tuesday, 12th March 2002
B e f o r e:
MR JUSTICE MOSES
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THE QUEEN ON THE APPLICATION OF
(1) ILHAM SAMMAKIA
(2) JOSEPH MASRI
(3) RUMI VERJEE
ROYAL BOROUGH OF KENSINGTON & CHELSEA
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(Computer-aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
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MR R HARWOOD and MR C ZWART (instructed by Richard Buxton, 40 Clarendon Stret, Cambridge CB1 1JX) appeared on behalf of the Claimants.
MR J POWELL (instructed by the Director of Legal Services, Royal Borough of Kensington & Chelsea, The Town Hall, Hornton Street, London W8 7NX) appeared on behalf of the Respondent.
J U D G M E N T
(As Approved by the Court)
Tuesday, 12th March 2002
J U D G M E N T
1. MR JUSTICE MOSES: On 22nd December 2000 GVA Grimley ("GVA") acting on behalf of GTM Car Parks UK Ltd ("GTM") lodged a planning application with the defendant, the Royal Borough of Kensington and Chelsea ("the Borough"), for:
"Construction of a two level underground car park with ancillary venting and access stairs. Replacement of 1 No. double garage with car park access and lift and replacement of 1 No. double garage with a new tennis pavilion".
2. The car park proposed was a double-level underground car park in the grounds of mansion flats at York House Place near Kensington Palace Gardens owned and occupied by the claimants. The car park, as it turns out, will be used by other residents of the Royal Borough of Kensington and Chelsea. There is, as it turns out, adequate surface level parking for the occupants of York House. The claimants are naturally particularly concerned about the lengthy period during which noise will be caused and disruption for at least a year during the construction and operation of the car park, but they object also on planning grounds.
3. Planning permission and conservation consent was granted by the Borough on 15th May 2001. The conservation area consent was consequent upon the granting of planning permission and raises no separate issue. This is an application for judicial review of the resolution of the Borough to grant that planning permission and conservation area consent.
4. The objection to the proposal was advanced not only by letters of objection from residents, but also on their behalf by ARUP, experts in the field who had prepared a traffic report. Objection letters were also received from the Vicarage Court Residents Association and from a councillor. The resolution which is impugned in these proceedings, brought with the permission of the single judge following an oral hearing, read:
"The Committee felt that, as similar applications had previously been granted, a precedent had been set, and with regret decided to grant this permission. The Committee felt that it would not be practical to enforce restrictions that limited the use of the car park to residents living within 400m of the application and that all local residents with parking permits should be allowed to use the car park. The Committee requested that the car park be regularly patrolled to ensure it would only be used by residents with parking permits."
5. The resolution adopted the recommendations.
6. The decision to grant planning permission is subject now to an Article 14 direction made by the Government Office for London on 5th July, that is after proceedings challenging the resolution of the Council had already been filed on 26th June 2001. The Article 14 direction prevents the Borough from granting planning permission without specific authorisation from the Secretary of State. It remains in place at the moment and no call-in decision has yet been taken by the Secretary of State.
Ground 1: Misconstruction of policy
7. The first ground upon which the resolution is attacked is based upon a contention that the Planning Services Committee misconstrued paragraph 7.6.16 of the Transportation Chapter of the Proposed Alterations to the Unitary Development Plan ("the emerging UDP"). This paragraph is, it should be noted, part of an explanatory statement in support of policy TR46, which reads:
"Normally to require all new residential development to include adequate off-street parking unless such provision would be unacceptable in townscape terms.
For the avoidance of doubt, policy TR46 refers to all forms of residential development:- new build, redevelopment, changes of use and conversions."
8. The explanatory paragraph 7.6.16 of the emerging UDP reads:
"The Council recognises the need and desire of residents to be able to park close to where they live. Many existing residential developments do not have off-street spaces and the availability of on-street parking is limited. The Council will normally require residential development to include adequate off-street parking to accommodate the demand for parking from residents of a development, in order to supplement restricted on-street provision. Where off-street parking is provided to the Council's maximum standards, enough spaces should be made available to, and permanently retained for use by, residents of the development and their visitors. Any excess parking spaces should be made available to residents qualifying for parking permits and living within a short walking distance."
9. The supporting statement to the planning application itself referred to this policy. At paragraph 5.2, under the heading "Residential Parking Provision", the supporting statement reads:
"The Royal Borough experiences a very high level of parking stress. Much of the Borough was built before the advent of the motor car and therefore the vast majority of properties do not have off street parking. A measure of the extent of the problem is evident by the fact there are approximately 42,000 residents parking permits but only 21,000 on street spaces - a shortfall of almost 50%. As a consequence the UDP places considerable emphasis on the provision of residents parking. In this regard paragraph 7.6.16 of the UDP second deposit states..."
10. And then there is a quotation from that.
11. The supporting statement was, however, advanced in the context of what was then viewed to be a shortfall of 20 spaces for the residents of York House, the site underneath which the car park was proposed to be built. It was thought that those residents had 52 cars but that there were only 32 spaces. It was proposed that the excess of the provision of parking spaces, over and above that required by the residents, should be limited to those living within 400 metres of the development (see paragraph 5.5 of the supporting statement). That distance had been agreed with the planning officers as representing a reasonable measure of "a short walking distance" to which the emerging UDP referred; it was intended that only local residents should be entitled to purchase spaces so that the site could not be in danger of being used by commuters or for other purposes (see paragraph 5.7). The conclusion of the supporting statement was (at paragraph 6.1):
"The car park will help to reduce the high levels of parking stress currently experienced in this part of the Borough, by providing additional parking for the residents of York House, and also residents of the Borough who live within 400 metres."
12. Planning officers advised the Committee that the emerging UDP policy supported the proposal. On 1 February 2001 the transportation officer advised that the provision of resident car parking spaces was supported by paragraph 7.6.16 of the emerging UDP, provided that the spaces would be used solely by local residents, with the result that the car park would reduce the level of on-street car parking in the vicinity. It was also considered that the proposal would contribute to a reduction in car use for short trips, as the vehicles would be parked out of sight of the residents, in the underground car park. At that time the advice recorded the belief that there was a need for parking spaces for the residents of York House and advised that the applicant would be required to undertake a legal agreement to ensure that spaces were only available to residents with parking permits living within 400 metres of the site.
13. Further advice was given on 10 May 2001, asserting that the provision of parking was supported by paragraph 7.6.16(b) of the UDP which, amongst other things, reads:
"[The Council] will consider ways of avoiding any increase in on-street parking pressures, through the use of Planning Obligations. For example, the Council will consider making more effective use of existing alternative off-street parking where there is spare capacity."
14. On 15th May 2001 there was a full report for the Committee by the Executive Director of Planning and Conservation, in which it was recorded that there was a shortfall of spaces for residents, and the intention was repeated that the additional parking spaces over and above those needed for residents would be limited to residents with parking permits living within 400 metres (see paragraph 2.2). The report continued at 4.2:
"The Royal Borough suffers from high levels of parking stress, and the situation is particularly severe in the location of the application site. The Council has issued almost 80% more resident parking permits than there are on-street spaces available. Paragraph 7.6.16 of the Transportation Chapter of the Proposed Alterations to the Unitary Development Plan supports the provision of resident car parking spaces provided the spaces are used solely by local residents. In these circumstances the proposal will reduce the level of on-street parking in the area, and may contribute to a reduction in car use for short trips as the vehicles will not be visible or easily accessible to residents.
4.3. It is important that the spaces are restricted to use by local residents only and not used for commuter parking as this would add to traffic generation."
15. At paragraph 4.4 it was recorded:
"In terms of increased traffic in York House Place, the Director of Transportation and Highways considers that the proposal will increase traffic flows by 6-8 vehicles per hour, and does not consider this to be a significant increase."
16. The conclusion was stated as at 4.15:
"In conclusion, it is considered that once completed this development will comply with the Council's transportation and car parking policies. The increase in traffic generated will not be significant, and the increase in parking for local residents is welcome."
17. The recommendation included a recommendation that there should be a planning obligation under section 106 of the Town and Country Planning Act 1990 that ensured that all spaces would be restricted to residents living within 400 metres of the site (see paragraph 4.16). Under the heading "public consultation" there were recorded objections that the proposal would increase noise and pollution and danger to pedestrians, including children. It was observed that the proposal was contrary to government and UDP policy to provide more parking and recorded that York House already had sufficient parking spaces (see paragraph 5.5.1).
18. The authors of the report responded:
"It is important that parking is restricted to local residents only, otherwise the points raised by objectors would be valid."
19. There was an additional addendum report, again asserting that the proposal complied with both national transportation policy PPG13 and with the UDP in that the additional traffic flows would be very low.
20. On the same day as the report was laid before the Committee, it was recorded that in fact there were more car parking spaces on the site than had been thought and that there was sufficient provision for the occupants of York House. The minutes of the meeting of the Planning Committee recorded that correction but described it as one of two minor inaccuracies. Opponents of the proposal were represented through one of the local residents and the claimant in these proceedings, Mr Varjee, who referred to a conflict with central government and Council policies on parking, since good public transport was available in the area and it was his belief that the volume of traffic would increase dramatically. The agent to the applicant responded, referring to similar developments which had been permitted and asserting that the emerging UDP supported the proposal. Then the resolution, as I have recorded it, was made.
21. The claimants contend that the previous belief that the provision of the underground car park would meet the needs of the residents of York House, which proved to be wrong, was not, as recorded, a minor inaccuracy. It is contended that once the need of the residents of York House had been satisfied, the factual context of this proposal was quite different. The car park was not one to be provided for residents with an excess of space for others living nearby, but had become, in the light of the fact that the residents already had the space they needed, a freestanding proposal for the provision of car parking space off street to others in the Borough, irrespective of the needs of the residents of York House. Accordingly, it was submitted that the proposal, far from gaining support from the explanatory statement at paragraph 7.6.16, is inconsistent with that paragraph in the emerging UDP. The UDP is concerned with the provision of off-street parking to residents of a new development, as confirmed not only by the terms of 7.16 but also the terms of 7.16(a) and 7.16(b), both of which refer to new residential developments. The policy itself, TR46, is clearly directed at the requirements of all new residential developments.
22. Accordingly, the local policy has nothing to say about the provision of off-street parking unconnected with the requirements of residents in a proposed new residential development. On the contrary, it was submitted by Mr Harwood on behalf of the claimants, both local and national policy were contrary and opposed to increased off-street parking unrelated to new development.
23. The national policy is concerned, so it was submitted, to limit car use. One of the methods by which that can be achieved is to restrict off-street residential parking. In that connection the claimants referred to paragraph 62 of the Government's national guidance contained in PPG3: Housing, which provides:
"Car parking standards that result, on average, in development with more than 1.5 off-street car parking spaces per dwelling are unlikely to reflect the Government's emphasis on securing sustainable residential environments. Policies which would result in higher levels of off-street parking, especially in urban areas, should not be adopted."
24. At worst, it is submitted that the proposal is contrary to that policy; at best, the policy is neutral and does not support the proposals. It is not suggested in these submissions by the claimants that it was not open to the Committee to approve this proposal; but if the Committee was to adopt that course, it is contended that it should properly have construed the relevant policies and understood that what it was doing did not derive support from those policies.
25. The question for the Court is whether the Planning Committee misconstrued its policy or whether the interpretation it applied was an interpretation reasonably open to the Committee.
26. Paragraph 7.6.16, on which the claimants seek to rely, is part of the explanation for policy TR46. It does not by itself deal with the provision of underground parking facilities for local residents. Such a possibility will, after all, be rare. But it does not seem to me that it provides no support for the proposal or that no such support can be found in local policy. The policy, after all, acknowledges the need and desire of local residents to be able to park close to where they live. Further, it acknowledges that off-street parking is scarce and that the available on-street parking is limited. The local policy recognises that parking space may be provided which is in excess of the needs of the residents and their visitors at the site at which the parking spaces are provided. The policy advises that such excess space should be made available to residents qualifying for parking permits within the Borough who live within a short walking distance.
27. The policy, therefore, envisages that those using the off-street parking facility may have no connection with the residents on the site where that facility is provided. Those using the site must qualify for parking permits and live within a short working distance, but once the principle is recognised that off-street parking is not to be restricted to residents of the site where the facility is situated, there is no justification for restricting the facility to new development. If off-street parking is to be afforded to those who do not live on site in relation to a new residential development, I can see no rational basis why such off-street parking should not be made available in relation to existing residential development where underground parking facilities are provided subsequent to that development. Nor do I believe that such provision is contrary to the central government guidance contained in PPG3: Housing or PPG13: Transportation.
28. Paragraph 62 of PPG3 is part of the guidance related to efficient use of land. It is preceded by paragraph 59, which provides:
"Local authority requirements for car parking, especially off-street car parking, are also a significant determinant of the amount of land required for new housing."
29. In paragraph 60 there is a further guidance given in relation to the provision of off-street car parking to ensure that there is no unnecessary use of land for that provision. It can hardly be suggested in this case, where on-street parking is insufficient for local residents, that the proposal represents an inefficient use of land, built as it is underground, and where it is likely to provide some relief for those who would otherwise use their parking permits to park in the street. The reference to the maximum of 1.5 off-street parking spaces is designed to prevent an excessive amount of land being used during the course of new housing or residential development but not as a prohibition against the provision of off-street parking to local residents entitled to use their parking permits to park their cars on the street where such on-street car parking is so limited. Contrast may be drawn with the provision of paragraph 51 of PPG3 where off-street car parking is to be limited where effective on-street parking control is present or can be secured.
30. Nor do I find that the proposal is inconsistent with PPG13. As recognised by Mr Harwood on behalf of the claimants, PP13 is concerned to limit the use of the car. As explained by Mr Kelsey, the Borough's Area Planning Officer, the government's transport policy is designed to limit the use of the motorcar. He refers in paragraph 7 of his statement to the increased use of traffic whilst residents seek to move their cars parked overnight in areas where they would no longer be permitted to park during the day.
31. For these reasons, I reject the contention that the Committee misconstrued the local policy or national policy or acted inconsistently with either of those policies. The local policy accepted that off-street parking may be provided where it relieved the use of on-street parking space by permit holders who would otherwise be entitled to park on the street in circumstances where such a facility does not lead to the inefficient or unsustainable use of land and where it does not increase the use of the car. The policy, properly understood, was not restricted to provision of parking spaces to residents on the site where that facility is provided. It thus cannot rationally be restricted to the provision of off-street parking spaces in respect of new residential developments.
Ground 2: previous applications granted
32. The Committee resolution was based in part on the view that similar applications had previously been granted and accordingly a precedent had been set. Complaint was made that there was no evidence as to the nature of such decisions or their context in the light of the current planning policies and that there was therefore no basis for attaching any weight to them. The supporting statement refers at paragraph 5.6 to a previous example of consent being granted at the former site of the Knightsbridge Crown Court which provided 94 spaces for sale or rent for parking to local residents living within 400 metres of the site. The supporting statement further referred, at 3.2, to spaces being sold in basement car parks at Earl's Terrace with an appendix showing traffic flows. There was no reference in the officer's reports to these previous applications, and there was but brief reference to them in the oral representations made on behalf of the agents for the developers on 15th May.
33. In those circumstances, it was submitted, in the absence of any detail, it was not open to the Committee to regard those previous applications as similar. In any event, it appears that they were new developments and were not freestanding provision of car parking. Further details now given by Mr Kelsey show two features said to distinguish those previous applications from the current proposal. There was a provision of car parking spaces for residents of the new residential development with an excess provision; and secondly, in those previous cases the provision was confined to those living very close.
34. In my judgment, the Committee must be expected and trusted to have local knowledge. If the reference to those previous applications mystified the Committee and they required further details, they could, at the very least, in my judgment, have been expected to ask, but they did not. The Committee was entitled to regard those previous applications as similar in the sense that they made available to local residents off-street parking despite the fact that those residents did not live on site. To that extent, those previous applications did set a precedent. The Committee did not, however, follow the restrictions in existence in relation to those previous applications, namely the restriction that the spaces should only be sold to those who live nearby. Whether that disentitled them to rely upon those two previous examples depends upon the third ground of challenge, to which I now turn.
Ground 3: Abandonment of the proposed 400 metres restriction
35. The proposal was advanced on the basis that the spaces would be restricted not only to those residents entitled to a parking permit but also to those who live within 400 metres, that being a distance which the officers accepted was a short walking distance within paragraph 7.6.16 of the UDP. Officers had supported that proposal on the basis of that restriction (see the report of 10th May 2001 at paragraph (b) and the report of 15th May at paragraph 4.16).
36. Despite the agreement to the proposals and the recommendations of the officers, the Committee rejected that restriction on the basis that it would not be practicable to enforce restrictions that limited use to residents within 400 metres. It was submitted that to disregard that restriction was unlawful and undermined the justification for the proposal, namely that it would not increase traffic, and distinguished furthermore this proposal from the other schemes which narrowly confined the use of the parking spaces to those living nearby.
37. The argument that it was not practical to enforce a restriction of 400 metres seems to me to lack any justification. It plainly was practical to enforce such a restriction. A completed deed, signed but not delivered, between the owners and the Borough contained a number of covenants which demonstrate that to enforce a restriction of 400 metres would have been practical. Amongst other covenants there were covenants as follows:
"3.3. The names of the users of the Car Parking Spaces including permit and/or space number and car registration number shall be provided to the Council on demand or every six months.
3.4. The purchasers of the Car Parking Spaces shall be allocated a specific numbered space for their own exclusive use and all such agreements for use shall be for a minimum term of twelve months.
3.5. Traffic wardens shall be allowed to come onto the land for the purposes of inspecting arrangements at both the Newly Constructed Car Park and the Re-instated Car Park to ensure compliance with the covenants contained therein."
38. I see no reason why the obligation confining purchasers to those who resided within 400 metres could not be enforced in such a deed. Thus, the reason given by the Committee for acting in a manner inconsistently with the recommendation of the officers, and indeed the policy at paragraph 7.6.16, was to my mind flawed. That does not, however, necessarily mean that the resolution of the Committee should be quashed.
39. It is plain that the Committee favoured the proposal and took the view that the provision of additional off-street parking to residents of the Borough entitled to parking permits would not exacerbate problems caused by the use of cars within the Borough. It rejected objections based on increased traffic congestion and the danger to pedestrians and children. The question as to whether the additional restriction limiting purchasers to those living within 400 metres could have affected the decision must depend, on the question whether it might, at least as a realistic possibility, have altered the views of the Committee about the increase in the volume of traffic in the area. In my judgment there is no basis for thinking, whether that restriction was there or not, it would have made any difference at all. The absence of a 400-metre restriction would not affect the ability of commuters to use the parking space because the spaces were confined to residents within the Borough. The only conceivable effect would be to allow other residents in the Borough with parking permits to purchase for 12 months a space off street more than 400 metres from where they live. As Mr Kelsey points out, at paragraph 29 of his witness statement:
"Whilst in theory this could mean that a resident, say, in the south of the Borough who worked near Kensington Church Street could buy a space to allow him to compute to work, this is very unlikely to happen in practice as he would be able to park in a residents bay for nothing, and during the day there is considerably less demand for spaces than at night."
40. It is thus unlikely that any resident with a parking permit, which after all entitles him to park throughout the Borough, would wish to spend money to buy a space so as to enable him to work near York House and move his car there when there would be in that vicinity on-street car parking at no extra cost, such parking being under much less pressure during the day. I must of course be careful lest the evidence of Mr Kelsey should prove to be no more than ex post facto rationalisation, but in considering whether it is right to quash the resolution, the Court must have regard to common sense. There is no sense in thinking that there would be an increase in traffic caused by residents from elsewhere in the Borough going to the unnecessary expense of purchasing an off-street parking space for use during the day.
41. Accordingly, I do not think that even if it had been pointed out to the Committee that the 400-metre restriction was not impractical to enforce it would have made any difference to the result. It may even be that the wording of the resolution did not reflect the approach of the Committee. At paragraph 28 of his statement Mr Kelsey recalls that the concern was that the limit of 400 metres was too rigid. The Committee was concerned at how the allocation would be controlled or enforced if a resident living 401 metres away wanted to acquire a space. Members felt that if spaces were limited to residents who had a residents permit, this would be sufficient control.
42. I prefer not to base my conclusion upon those considerations. The Committee ought to have worded its resolution with accuracy, and I am prepared to accept that its reasoning in rejecting the 400-metres restriction was flawed.
43. But, for the reasons I have given, in the event, as a matter of discretion, I decline to quash the resolution.
44. In those circumstances, this application fails.