Unfairness in appeal process leads to quashing of Kensington basement permission
Planning permission for the change of use of a building to residential and the construction of a three storey basement was quashed by the High Court in Carroll v Secretary of State for Communities and Local Government  EWHC 316 (Admin). Planning permission had been refused by the Royal Borough of Kensington and Chelsea because of the loss of office use in the mews building at South End W8. The applicant appealed on the basis that the existing use was office but in her six week statement said that the use had changed to B8 storage and this did not have policy protection. After the close of the period for representations the applicant sent to the Inspector a Council committee report on a second application which accepted that the use was now B8 and that there was no policy objection to a change from B8 to C3 residential. The report was sent after the second planning application had been refused by the Council’s committee, which objected in principle to the change of use, but that decision was not sent to the Inspectorate.
Mr Justice Supperstone held that it was unfair that the neighbour, Mr Carroll, was not consulted on the changes in the case in the six week statement and the subsequent representations, that the Inspector should not have changed the description of development from B1 to C3, to B8 to C3 without further consultation and that the Inspector failed to have regard to material considerations because he was unaware of the committee’s decision.
The Court rejected the applicant’s contention that any prejudice to herself from the changes in the Council’s basement policy should displace the normal principle that unlawful decisions should be quashed.
Richard Harwood QC appeared for Mr Carroll, instructed by Daniel Farrand and Chhavie Kapoor of Mishcon de Reya.