The proper approach to ‘ancillary’ uses: High Court dismisses challenge to hotel permission in Westminster
In R(Fountain House Residents’ Association) v Westminster City Council [2025] EWHC 896 (Admin), the High Court has dismissed a challenge to a decision by the Council to grant planning permission for the redevelopment of a vacant car showroom as a hotel. The case provides an illustrating analysis of the proper approach to whether a site is in a mixed use or whether there is main use to which others are ‘ancillary’.
Jack Parker acted on behalf of Westminster City Council.
In determining the planning application, the Council rejected an objection on the part of the Claimant that the use of the building as a hotel give rise to a loss of office floorspace. Policy 13 of the City Plan resists the loss of ‘office floor space’ unless various conditions are met. The Council decided that while the previous use of the building as a car showroom included some office space within the basement, that office use was ancillary to the use of the building as a car showroom such that Policy 13 was not engaged. There was not a mixed car showroom/office use (which would have engaged the Policy 13 restriction).
The Claimant alleged that the Council’s decision was unlawful because, in finding that the office use was an ancillary use on the basis that it was “not functionally separate to the main use” as a car showroom, the Council had applied the wrong test for ancillary uses. The Claimant’s argument was that the test for whether one use is ancillary to another is not just a question of whether there is a functional connection between the two. It had to be shown that one use is incidental to the primary use.
Having considered the relevant authorities including, Trio Thames v Secretary of State for Environment and Reading BC [1984] JPL 183, Lydcare Ltd v Secretary of State [1984] JPL 809 and Harrods Ltd v Secretary of State for Environment [2002] JPL 1321, the Court found that it was open to the planning officer to address the issue of whether the offices were ancillary to the car showroom use by reference to their functional connection (paragraph 62) and that “[o]nce the officer had decided, as a matter of fact and degree, that there was no functional separation between the two uses, he was perfectly entitled to find that the office use was ancillary as well as being part of the same planning unit.” (paragraph 65).
For a copy of the Judgment, please click here.
