Hyde Park Residence Limited v Secretary For The Environment, Transport & Regions & Anor

Primary legislation is not cut down by subordinate legislation made under a different enabling power unless Parliament has clearly authorised that result. A specific statutory provision governing a defined use in a particular geographical area prevails over a later general use classification. Accordingly, the use of residential premises in Greater London as temporary sleeping accommodation remained a material change of use requiring planning control under Greater London Council (General Powers) Act 1973, section 25, despite the Town and Country Planning (Use Classes) Order 1987 and section 55(2)(f) of the Town and Country Planning Act 1990.

The appellant acquired a block of flats in London and proposed using them for short-term visitor accommodation. Westminster City Council issued enforcement notices alleging a change from permanent residential accommodation to temporary sleeping accommodation under section 25 of the Greater London Council (General Powers) Act 1973.

An inspector rejected the appellant’s grounds of appeal. The Queen’s Bench Division dismissed an appeal on the issue of whether section 25 remained effective, although it accepted the appellant’s alternative argument concerning the use class applicable outside London. The Court of Appeal considered whether the 1987 Use Classes Order had displaced section 25.

1. Appeal dismissed. The court agreed with the deputy judge that section 25 of the Greater London Council (General Powers) Act 1973 remained effective.

2. Section 25 and section 55 of the Town and Country Planning Act 1990 were to be read together. Section 25 made the specified use in Greater London a material change of use, while section 55 treated a material change of use as development.

3. The 1987 Use Classes Order was subordinate legislation. It could not cut down the specific statutory right or protection created by section 25, because the enabling powers in section 333(4) and section 333(6) did not authorise amendment of primary legislation. The court relied on the general principle stated in R v Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants [1997] 1 WLR 275 and the requirement for a narrow and strict construction of delegated amendment powers stated in R v Secretary of State for Social Security, ex parte Britnell [1991] 1 WLR 198.

4. The specific provision in section 25 was not impliedly repealed or modified by the general C3 use class and section 55(2)(f). The court also considered that the legislative history and planning purpose made the appellant’s construction implausible.

5. It was unnecessary to decide whether permanent and temporary residential uses constituted different purposes within the same class outside Greater London. That issue was expressly left for a future case. Leave to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): Appeal dismissed. Leave to appeal to the House of Lords refused.
• Queen’s Bench Division: Mr Christopher Lockhart-Mummery QC, sitting as a deputy judge, dismissed the appellant’s appeal from the inspector’s decision.
• Inspector: Rejected the appellant’s grounds concerning planning permission, breach of planning control and the period for compliance.