Case Considered The Interpretation Of Westminster City Council’s New Basement Planning Policy

An appeal against Westminster City Council’s refusal of planning permission for the redevelopment of Leconfield House has been dismissed by the Planning Inspectorate. The appeal failed, in part, because of additional restrictions on basement extensions in the Council’s new Local Plan. 

The Appeal is one of the first to consider the proper application of policies in Westminster City Council’s new local plan. In particular, a policy restricting the extent of basement developments in the Central Activities Zone to a single storey, and another resisting the conversion of former office.

The decision is also a pertinent reminder of what happens when a new local plan is adopted in the period between the submission of a planning application and the grant or refusal of planning permission. 

The applicant had sought permission to convert Leconfield House, an office building which had previously been served as MI5 headquarters, into a private members club and hotel. The development included the excavation of a three storey basement extension, below the existing basement level. The application was submitted in February 2020. The Council originally resolved to approve the application, in February 2021, under the policies set out in the previous local plan. At this point, although the new local plan had been examined, the Examining Inspector's report was still outstanding, which affected the weight that could be attributed to it. Unfortunately for the applicant, there was a considerable delay in agreeing the s.106 Agreement for the scheme. When the plan was found sound in March 2021, the s.106 Agreement had yet to be agreed. The Council called the application back to committee in August 2021 and refused it on the basis of the policies in the new Local Plan. 

In upholding the Council's decision to refuse permission, the Inspector found that:

Basement Construction

• Policy 45 B(3) of the new Westminster City Plan did not provide an automatic exemption from the restrictions in the policy for basement extensions of more than one storey that were located on large sites with high levels of accessibility for construction. The use of the word 'may' meant that the possible exemption set out in the policy was discretionary.
• The site did not benefit from "high levels of accessibility for construction" and the construction of the additional basement levels would have a material adverse impact on the living conditions of neighbouring residents, so should not be permitted. The Appellant’s argument that the impact on the residential amenity of the neighbours should be considered acceptable because these impacts were capable of being partially reduced by compliance with the Council’s Code of Construction Practice was rejected.
•  Significantly, the Inspector found that even if the proposals had met these requirements, there was no reason given to justify the making of an exception to the policy in the circumstances of the case.

Loss of Office Use

• Policy 13 of the new Westminster City Plan did in fact apply to the proposed development, and the appellant had not met the marketing requirements of that policy at the time of the Council’s decision to refuse the application. The appellant also failed to produce sufficient evidence of a lack of demand for offices at the property during the appeal.
• The appellant's argument that the Council was applying policy 13 "retrospectively" by requiring compliance at the date of adoption of the new local plan (as this necessitated carrying out the marketing exercise before the adoption of the new local plan) was given short shrift by the Inspector. In response, the Inspector simply pointed out that:
  •  the starting point for all planning decisions was Section 38(6) of the Planning and Compulsory Purchase Act 2004. This requires determinations to be made in accordance with the development plan unless material considerations indicate otherwise. As a result, both the original decision to refuse, and the appeal itself, had to be determined in accordance with the new Westminster City Plan; and
  • in any event, the appellant would have had plenty of notice of the content of the emerging local plan policy when preparing and submitting their application. 

The appeal reference is: APP/X5990/W/22/3292545 

Daniel Stedman Jones, of 39 Essex Chambers and Irwin Mitchell acted for Chesterfield House Management Limited, one of the interested parties in the Appeal.