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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Di Ciacca v. Scottish Ministers  ScotCS 95 (2 April 2003)
Cite as:  LLR 426,  ScotCS 95
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OUTER HOUSE, COURT OF SESSION
OPINION OF LORD REED
under sections 237 and 239 of the Town and Country Planning (Scotland) Act 1997
MARIO DI CIACCA
THE SCOTTISH MINISTERS
Appellant: Agnew of Lochnaw, Q.C.; Morton Fraser
Respondents: Crawford; Solicitor to the Scottish Executive
2 April 2003
"6. ... I consider that the determining issue in this appeal is whether or not the threat to residential amenity is unreasonable, bearing in mind the edge-of-town-centre location.
7. ... I consider that expectations of residential amenity at this location (on the main seafront in a main resort with its associated activity) do not warrant the same degree of restriction as, say, in a quiet suburb. I consider that a properly controlled wine bar would add little to the inevitable level of activity at this location for which it is a broadly appropriate use.
8. The proximity of third party residential property, at first and second floor level directly to the south, nevertheless justifies caution. The possibility of control by the licensing board does not relieve a planning authority of any responsibility to control conflicts of use. Whereas street noise may require a response by the police, it remains competent for a district council to anticipate such symptoms and to impose appropriate conditions on proposals to which they can fairly be attributed (e.g. through the arrival and departure of patrons). I find that the conditions proposed by the Director of Planning represent the necessary level of concession to residential amenity.
9. I have given careful thought to your clients' resistance to such conditions. They are however the only way in which this development can be rendered acceptable, and it is for your clients to determine whether or not the development should proceed on this basis, or not at all.
10. Therefore, in exercise of the powers delegated to me, I sustain the appeal and grant planning permission for the use of the appeal property as a wine bar subject to the following conditions:-
2. The wine bar should be open to the public only between the hours of 11.00a.m.-11.00p.m. (Sunday to Thursday inclusive) and 11.00a.m.-12 midnight (Friday and Saturday)."
"The next main issue is therefore whether the proposal would be inimical to the living conditions of people in the vicinity. This is a mixed residential and commercial area and I endorse the previous Reporter's conclusions about the appropriate level of protection of residential amenity and the use of planning control for that purpose. Despite your client's confidence that Coasters wine bar is an innocuous neighbour, falsely blamed for incidents that have nothing to do with it, and despite my making allowances for possible exaggeration of some details ... I find the comments of neighbours about the effects of the wine bar on their residential amenity to be generally credible ... It is apparent that the existence of a stairway between the wine bar and the nearest flat in other occupation has not protected that flat from disturbance. It is therefore a simple matter to conclude that any extension of opening hours would further harm the living conditions of neighbours, and hence the proposal is contrary to policy COM 4."
The appeal was therefore refused. In 1997 a third application was made for the removal of condition 2. It too was refused.
"The variation of Condition Number 2 ... to remove control by the Planning Authority over opening hours would result in a development likely to have an adverse effect on the amenity of neighbouring residential properties located to the south and the holiday letting flats located to the north. As such the removal of condition 2 would result in bad neighbour development which is contrary to POL COM 4 of the Adopted Local Plan. POL COM 4 states:
'The Council will continued to examine carefully proposals for bad neighbour commercial uses in resident and mixed [commercial and] residential areas, and will not normally permit such uses where it is considered that they would have an unacceptable detrimental effect on the amenities of residential property."
"As part of their submissions the applicants speak of other premises coming under Licensing Board control with regard to hours of opening. It is a fact that other premises in the area are so controlled and, indeed, premises that have not complied with the Board's instructions have lost licences or had hours of operation reduced. The Board has effective control as indeed do the Environmental Health and the police when dealing with licensed premises. Given that I have a history of only one complaint and that there are effective controls available to deal with licensed premises, I have no objection to the application as it stands."
The appellant also founded on the controls available under licensing law, and stated:
"In order to have a regular extension granted the applicant would have to satisfy the Licensing Board of the tests under section 64 of the 1976 Act and in particular under section 47(1) of the Law Reform (Miscellaneous Provisions) Act 1990 [sic] 'that such an extension is likely to be of such benefit to the community as a whole to outweigh any detriment to that locality'. In the light of the statutory requirement of section 47(1)(b) of the 1990 Act the Council's decision was neither justified nor based on any reasonable factual grounds ... In considering these extensions [viz. extensions granted to other licensed premises in Oban], the Licensing Board will have been obliged to assess the possibility of disturbance and must have come to the view that this was not a serious risk. Of course, if this proves to have been mistaken, the Board can readily revoke the licence extension when it comes up for renewal on an annual basis. Furthermore, if a complaint is made that the extended hours are causing an undue public nuisance, the Licensing Board may impose a restriction order under section 65 of the 1976 Act without waiting for a renewal application."
Thirdly, it was argued that insufficient weight had been given to a planning policy to encourage tourism. Fourthly, it was argued that opening hours should not be a matter for planning control. Reliance was placed first on the statement of Scottish Executive policy contained in paragraph 54 of National Planning Policy Guideline 1 (as revised in 2000). Reliance was also placed upon the Convention right expressed in Article 1 of the First Protocol to the European Convention on Human Rights. In that regard, the appellant submitted:
"This right may only be curtailed if it is 'necessary to control the use of property in accordance with the general interest' ... It is submitted that as the Licensing (Scotland) Act 1976 provides detailed and flexible controls on licensing hours after 11.00p.m. which have regard to the general interest of the community and the locality, a planning condition which is not flexible and cannot change with changing circumstances is not a necessary control. Having regard to the provisions of the Licensing (Scotland) Act 1976, the planning condition is not a proportionate response to any perceived general interest. Specifically,
- It is an unnecessary permanent control because the Licensing Board has a more flexible means of control through the regular annual reviews of extension applications with an ability to respond, upon complaint, to any immediate difficulty.
- There is no evidence that the control is necessary to protect the rights of neighbours when a licensing control is available, particularly as the property has operated without complaint and the relevant council department had no objection on noise or environmental grounds.
- It is not a proportionate response in the circumstances where the Licensing Board is statutorily directed to provide the necessary controls through section 64 of the 1976 Act which requires the Board to be satisfied on a number of aspects before granting a regular extension.
- It is an unreasonable control given the regular extension policy operated by the Licensing Board and the absence of similar planning conditions imposed on other property.
In view of these considerations it is contended that the decision not to waive condition 2 is in contravention of the Human Rights Act."
"Licensing controls are entirely separate matters and are not related to the Council's responsibilities as planning authority."
In relation to the fourth ground of appeal, the planning authority submitted that condition 2 had a basis in law; it pursued a legitimate aim, namely to protect the amenity of the neighbouring residential properties; and it was proportionate to that aim.
"16. Section 25 of the  Act requires that I determine this appeal in accordance with the provisions of the development plan unless material considerations indicate otherwise. The only development plan policies drawn to my attention as being relevant to the appeal are COM 4 and TOUR 1 of the adopted local plan. Having regard to my site inspections and to my reading of the written submissions, I consider the determining issues in this case are whether the removal of condition 2 from the original planning permission for Coasters would be consistent with local plan policy, and whether a decision not in accord with local plan policy is justified by other material considerations.
17. In regard to the first determining issue, I find that local plan policy TOUR 1 is very general in its terms. While extended opening hours might render Coasters more attractive to some visiting patrons, any difference that might produce would be minimal in regard to achieving the overall objective of promoting Oban's role as a major tourist centre. I also agree with the council that any proposal found to have the support of policy TOUR 1 still has to be assessed against other relevant local plan policies. Here that is policy COM 4, and I reject your argument in regard to its applicability. My site visit confirms that a mixed pattern of land use does exist in the locale of Coasters, and this includes residential flats to the north and south. There is also no evidence before me to suggest that the recently completed block of flats to the north is subject to occupancy restrictions, and given its location I would not expect it to be so.
18. While accepting the principle of use of Coasters as a wine bar, the Reporter in the 1989 appeal specifically concluded that the relationship of the premises to residential property justified a cautious approach to opening hours. That was endorsed by another Reporter in 1995. Even allowing for the downturn in tourism and other changes which you claim have occurred, and the further evidence of the reasonably trouble free operation of Coasters, I see no reason to dispute or disagree with the findings of previous Reporters in this regard.
19. Other than in exceptional carefully defined circumstances, planning permission runs with the property concerned. While the evidence appears to indicate the considerate management of Coasters by your client, a future change in ownership or management practices cannot be ruled out, nor can it be assumed that the letting arrangements exercised by your client in relation to the adjoining residential property will continue for all time. I am satisfied in this case that any attempt to make a grant of planning permission personal to your client, or to impose restrictions on the occupancy of adjoining residential property would be inconsistent with the provisions of SDD Circular 4/1998.
20. I agree with previous Reporters that the controls available to the licensing board do not relieve the council from its responsibility to exercise planning control over potential conflicts of use. I therefore reject your argument that control over the opening hours of licensed premises should be the sole responsibility of the licensing board. Despite the changes since 1989 which you seek to rely upon, against the background which I have described above, the potential for conflict between the use of Coasters and neighbouring residential property remains, and that factor is fundamentally important to my decision on the appeal. Your client's case partly relies on the parallel you say exists at other licensed premises in Oban, some only recently approved. While the precise details of these cases are not before me, that does not remove the obligation imposed on me by s.25 of the Act to assess the proposal against relevant development plan policies. That I have already done.
21. In regard to Human Rights arguments, I agree with the council that restricting the opening hours of licensed premises through the exercise of planning control has its basis in law, and that the exercise of that control in this case is proportionate to the need to protect the legitimate rights of the occupiers of neighbouring residential properties.
22. I have taken account of all the other matters raised, but find none that outweigh the considerations on which my decision is based. Taking my conclusions as a whole, I find that the removal of opening hours restrictions in this case would be contrary to the provisions of local plan policy COM 4, and is not justified by other material considerations. Accordingly, and in exercise of the powers delegated to me, I hereby dismiss the appeal and refuse to grant planning permission for the removal of condition 2 from the planning permission dated 21 February 1989."
"(i) that the action is not within the powers of this Act, or
(ii) that any of the relevant requirements have not been complied with in relation to that action."
Under section 239(5)(b), the court can quash a decision on the second ground only "if satisfied ... that the interests of the applicant have been substantially prejudiced by failure to comply with any of the relevant requirements"; whereas the power to quash on the first ground is not qualified by any need for the appellant to show substantial prejudice. The expression "the relevant requirements" is defined by section 239(9) as meaning inter alia "any requirements ... of the Tribunals and Inquiries Act 1992". Schedule 4 to the 1997 Act deals with the determination of appeals by appointed persons (i.e., Reporters) and paragraph 8(1) provides:
"8.-(1) The Tribunals and Inquiries Act 1992 shall apply to a local inquiry or other hearing held in pursuance of this Schedule as it applies to a statutory inquiry held by the Secretary of State, but as if in section 10(1) of that Act (statement of reasons for decisions) the reference to any decision taken by the Secretary of State were a reference to a decision taken by an appointed person."
Section 10(1) of the 1992 Act, so far as material, provides:
"10.-(1) ...where - ...
(b) any Minister notifies any decision taken by him -
(i) after a statutory inquiry has been held by him or on his behalf, or
(ii) in a case in which a person concerned could (whether by objecting or otherwise) have required a statutory inquiry to be so held,
it shall be the duty of the ... Minister to furnish a statement, either written or oral, of the reasons for the decision if requested, on or before the giving or notification of the decision, to state the reasons."
"[I]n order to comply with the statutory duty imposed upon him the Secretary of State must give proper and adequate reasons for his decision which deal with the substantial questions in issue in an intelligible way. The decision must, in short, leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it ... I have only to add that in appeals such as these reasons which fail to pass the tests which I have just discussed will demonstrate a failure to comply with statutory requirements which cannot have been other than prejudicial to the appellant."
"The application of the first two of these presents no problem. If the reasons given are improper they will reveal some flaw in the decision-making process which will be open to challenge on some ground other than the failure to give reasons. If the reasons give are unintelligible, this will be equivalent to giving no reasons at all. The difficulty arises in determining whether the reasons given are adequate, whether, in the words of Megaw J. (in In re Poyser and Mills' Arbitration  2 Q.B. 467, 478), they deal with the substantial points that have been raised or, in the words of Phillips J. in Hope v Secretary of State for the Environment (1975) 31 P. & C.R. 120, 123, enable the reader to know what conclusion the decision-maker has reached on the principal controversial issues. What degree of particularity is required?"
In answering that question in the context of planning law, Lord Bridge said (at pages 167 to 168):
"Whatever may be the position in any other legislative context, under the planning legislation, when it comes to deciding in any particular case whether the reasons given are deficient, the question is not to be answered in vacuo. The alleged deficiency will only afford a ground for quashing the decision if the court is satisfied that the interests of the applicant have been substantially prejudiced by it. This reinforces the view I have already expressed that the adequacy of reasons is not to be judged by reference to some abstract standard. There are in truth not two separate questions: (1) were the reasons adequate? (2) if not, were the interests of the applicant substantially prejudiced thereby? The single indivisible question, in my opinion, which the court must ask itself whenever a planning decision is challenged on the ground of a failure to give reasons is whether the interests of the applicant have been substantially prejudiced by the deficiency of the reasons given. Here again, I disclaim any intention to put a gloss on the statutory provisions by attempting to define or delimit the circumstances in which deficiency of reasons will be capable of causing substantial prejudice, but I should expect that normally such prejudice will arise from one of three causes. First, there will be substantial prejudice to a developer whose application for permission has been refused or to an opponent of development when permission has been granted where the reasons for the decision are so inadequately or obscurely expressed as to raise a substantial doubt whether the decision was taken within the powers of the Act. Secondly, a developer whose application for permission is refused may be substantially prejudiced where the planning considerations on which the decision is based are not explained sufficiently clearly to enable him reasonably to assess the prospects of succeeding in an application for some alternative form of development. Thirdly, an opponent of development, whether the local planning authority or some unofficial body like Save, may be substantially prejudiced by a decision to grant permission in which the planning considerations on which the decision is based, particularly if they relate to planning policy, are not explained sufficiently clearly to indicate what, if any, impact they may have in relation to the decision of future applications.
Here again, I regret to find myself in disagreement with Woolf L.J. who said, 60 P. & C.R. 539, 557:
'Once it is accepted that the reasoning is not adequate, then in a case of this sort it seems to me that, apart from the exceptional case where it can be said with confidence that the inadequacy in the reasons given could not conceal a flaw in the decision-making process, it is not possible to say that a party who is entitled to apply to the court under section 245 has not been substantially prejudiced.'
The flaw in this reasoning, it seems to me, is that it assumes an abstract standard of adequacy determined by the court and then asserts, in effect, that a failure by the decision-maker to attain that standard will give rise to a presumption of substantial prejudice which can only be rebutted if the court is satisfied that the inadequacy 'could not conceal a flaw in the decision-making process.' But this reverses the burden of proof which the statute places on the applicant to satisfy the court that he has been substantially prejudiced by the failure to give reasons. When the complaint is not of an absence of reasons but of the inadequacy of the reasons given, I do not see how that burden can be discharged in the way that Woolf L.J. suggests unless the applicant satisfies the court that the shortcoming in the stated reasons is of such a nature that it may well conceal a flaw in the reasoning of a kind which would have laid the decision open to challenge under the other limb of section 245. If it was necessary to the decision to resolve an issue of law and the reasons do not disclose how the issue was resolved, that will suffice. If the decision depended on a disputed issue of fact and the reasons do not show how that issue was decided, that may suffice. But in the absence of any such defined issue of law or fact left unresolved and when the decision was essentially an exercise of discretion, I think that it is for the applicant to satisfy the court that the lacuna in the stated reasons is such as to raise a substantial doubt as to whether the decision was based on relevant grounds and was otherwise free from any flaw in the decision-making process which would afford a ground for quashing the decision."
"Use of Conditions
50. Conditions imposed on a grant of planning permission can enable development proposals to proceed where it would otherwise have been necessary to refuse planning permission. While the power to impose planning conditions is very wide, it needs to be exercised in a manner which is fair, reasonable and practicable. Planning conditions should only be imposed where they are:
- relevant to planning;
- relevant to the development to be permitted;
- reasonable; and
Further guidance on conditions is contained in Circular 4/1998 and the associated annex on Model Conditions.
54. Planning decisions should always be made on planning grounds and in the public interest. The planning system should not be used to secure objectives that are more properly achieved under other legislation. The grant of planning permission does not remove the need to seek other statutory consents nor does it imply that these consents will be forthcoming. Even where legal or administrative measures outwith the planning system may exist for controlling a particular activity, this can still be a consideration to which weight is given in reaching a planning decision. If a consideration is material in planning terms, it must be taken into account in reaching a decision. For example, the planning authority should have regard to the impact of a proposal on air or water quality although the regulation of emissions or discharges will fall to be dealt with under other legislation."
Counsel also referred to the Scottish Executive's Circular 4/1998, which sets out Government policy on the use of conditions in planning permissions. Counsel relied in particular on paragraphs 13 and 20 of Annex A:
"13. In considering whether a particular condition is necessary, authorities should ask themselves whether planning permission would have to be refused if that condition were not to be imposed. If it would not, then the condition needs special and precise justification. Planning authorities should also avoid imposing conditions through anxiety to guard against every possible contingency, however remote. The argument that a condition will do no harm is no justification for its imposition; as a matter of policy a condition ought not to be imposed unless there is a definite need for it. The same principles, of course, must be applied in dealing with applications for the removal of a condition under section 33 or 42 of the Act; a condition ought not to be retained unless there are sound and clear-cut reasons for doing so.
20. Other matters are subject to control under separate legislation, yet are also of concern to the planning system. A condition which duplicates the effect of other controls will normally be unnecessary and one whose requirements conflict with those of other controls will be ultra vires because it is unreasonable. For example, a planning condition would not normally be appropriate to control the level of emissions from a proposed development where they are subject to pollution control legislation. However, such a condition may be needed to address the impact of the emissions to the extent that they might have land-use implications and/or are not controlled by the appropriate pollution control authority. (For further advice on this subject, see Planning Advice Note 51 Planning and Environmental Protection.) A condition cannot be justified on the grounds that the planning authority is not the body responsible for exercising a concurrent control and, therefore, cannot ensure it will be exercised properly. Nor can a condition be justified on the grounds that a concurrent control is not permanent but is subject to expiry and renewal (as, for example, with certain licences). Even where a condition does not actually duplicate or conflict with another control, differences in requirements can cause confusion and it will be desirable as far as possible to avoid solving problems by the use of conditions instead of, or as well as, by another more specific control."
"(b) that the premises to which an application relates are not suitable or convenient for the sale of alcoholic liquor, having regard to their location; their character and condition; the nature and extent of the proposed use of the premises; and the persons likely to resort to the premises;
(c) that the use of the premises for the sale of alcoholic liquor is likely to cause undue public nuisance, or a threat to public order and safety."
In terms of section 23(1) and (2), the licensing board cannot entertain an application for the grant of a new licence (other than an off sale licence) unless inter alia planning permission has been obtained. Under section 30, the currency of a licence is three years. Section 31 empowers the licensing board to suspend a licence on specified grounds, including "that the use of the premises ... has caused undue public nuisance", if satisfied that it is in the public interest to do so. Section 32 empowers the licensing board to make a closure order if it considers that the premises are no longer suitable or convenient for the sale of alcoholic liquor. Section 53 provides that the permitted hours in licensed premises are 11.00a.m. to 11.00p.m. except on Sundays, when the hours are 12.30p.m. to 2.30p.m. and 6.30p.m. to 11.00p.m. The opening hours permitted under condition 2 of the planning permission in question are therefore the same as permitted hours for Mondays to Thursdays, and longer than the permitted hours for Fridays to Sundays.
"(2) A licensing board may grant an application for an occasional extension of permitted hours in connection with any occasion which the board considers appropriate and such a grant shall authorise the person to whom it was granted to sell or supply alcoholic liquor in the premises to which the application relates during such periods not exceeding one month and between such hours and on such day as may be specified in the grant."
A regular extension can be granted under subsection (3):
"After considering the application and any objections made thereto, a licensing board may grant an application for the regular extension of permitted hours if, having regard to the social circumstances of the locality in which the premises in respect of which the application is made are situated or to activities taking place in that locality, the board considers it is desirable to do so, and such a grant shall authorise the person to whom it was granted to sell or supply alcoholic liquor in the premises to which the application relates during such period in the year succeeding the date of the grant and between such hours and on such days as may be specified in the grant."
Subsection (6) empowers the licensing board to attach such conditions as it thinks fit to the grant of an occasional or regular extension. Subsection (8) provides:
"(8) A licensing board shall not grant an extension of permitted hours under this section if it considers that the extension of permitted hours under this section is likely to cause undue public nuisance or to be a threat to public order or safety."
The criteria to be taken into account by the licensing board when considering an application under section 64 are extended by section 47(1) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990:
"47.-(1) A licensing board shall not grant an application under section 64 of the principal Act for an extension of permitted hours unless it is satisfied by the applicant, taking account of the factors mentioned in subsection (3) of that section -
(a) that there is a need in the locality in which the premises in respect of which the application is made are situated for a regular extension of the permitted hours; and
(b) that such an extension is likely to be of such benefit to the community as a whole as to outweigh any detriment to that locality."
Counsel for the appellant stated, in the course of his submissions, that the current policy of the licensing board, exercising its powers in accordance with the provisions quoted earlier, was to permit regular extensions of permitted hours until 1.00a.m. on Sunday to Thursday nights and until 2.00a.m. on Friday and Saturday nights, i.e. two hours later than condition 2.
"21. Where other controls are also available, a condition may, however, be needed when the considerations material to the exercise of the two systems of control are substantially different, since it might be unwise in these circumstances to rely on the alternative control being exercised in the manner or to the degree needed to secure planning objectives."
Counsel submitted that the considerations material to the exercise of licensing controls were substantially different from those relevant to planning. The responsibilities and criteria of the licensing board were different from those of a planning authority. Nothing had been said in the submissions before the Reporter about any policy applied by the licensing board: the appeal had, however, presumably been brought because it was thought that the licensing board might permit later opening hours than were permitted by condition 2. The Reporter had considered whether condition 2 was necessary for a planning purpose. His reference to a "potential for conflict" was unobjectionable: policy COM 4 was inevitably concerned with potential conflicts of use insofar as it sought to avoid the emergence of actual conflicts. The Reporter had not ignored the licensing regime. He had correctly proceeded on the basis that the licensing board should not be regarded as having "sole" responsibility for opening hours when that matter was also of importance to the planning authority. His approach was based on a recognition that, even given the availability of controls imposed by the licensing board, the possibility would exist of adverse effects upon amenity which would be contrary to the development plan.
"In principle, it seems to me that any consideration which relates to the use and development of land is capable of being a planning consideration. Whether a particular consideration falling within that broad class is material in any given case will depend on the circumstances."
"But the planning authority may be different from the highway authority and they may think that a street must be widened although the highway authority refuse to prescribe an improvement line. I can find no ground for saying that in such a case the planning authority must defer to the views of the highway authority."
Lord Reid considered that the point was in any event covered by section 118 of the Town and Country Planning Act 1947, which provided:
"For the avoidance of doubt it is hereby declared that the provisions of this Act, and any restrictions or powers thereby imposed or conferred in relation to land, apply and may be exercised in relation to any land notwithstanding that provision is made by any enactment in force at the passing of this Act ... for authorising or regulating any development of the land."
Lord Reid continued (at page 529):
"An enactment in force at the passing of the Act must, I think, include a later re-enactment of the same provisions and section 72 of the Highways Act is a provision regulating the development of land. So I cannot accept the argument that planning authorities' powers under the Town and Country Planning Act are insufficient to entitle them to give effect to their views about street widening where no improvement line has been prescribed."
"No doubt, as a matter of sensible administration that would be right, but the court was not entitled to imply that because the licensing authority has been given this express power, that the very wide powers given to the Secretary of State under the Town and Country Planning Act were thereby diminished."
"In our view this also proceeds on a complete misconception. Clearly the decision by the Secretary of State's representative in the planning appeal and the reasons which he gave for that decision were not binding on the licensing committee when they came to consider an application for a permit under section 34 of the Gaming Act 1968. To hold the contrary would be to wipe out the discretion vested in the licensing committee by statute. The planning decision was made by one individual as a result of a view which he took of the evidence before him. Another body, discharging a different statutory function for a different purpose under discretionary powers, was perfectly entitled to reach a different decision."
"It is clear beyond any doubt that the environmental impact of emissions to atmosphere is a material consideration at the planning stage.... It follows, in my judgment, that the Secretary of State could not lawfully adopt a policy of hiving off all consideration of such environmental effects in their entirety to the EPA regime. But, just as the environmental impact of such emissions is a material planning consideration, so also is the existence of a stringent regime under the EPA for preventing or mitigating that impact and for rendering any emissions harmless. It is too simplistic to say 'the Secretary of State cannot leave the question of pollution to the EPA'".
The deputy judge's decision, refusing to quash the outline consent, was upheld on appeal. The case was somewhat differently argued before the Court of Appeal; but agreement was expressed with the conclusions reached by the deputy judge (at page 96), and the passage which I have quoted from his judgment was cited with approval (at page 91).
"I do not accept that it would be correct to grant planning permission for the proposal as presented and effectively hand over responsibility for defining the use and managing its effects to another regime. To my mind the proposal and its future operation must be satisfactorily secured in planning terms, before it passes to the licensing authority for any further control necessary."
"In my judgment, [counsel's] contention that the Inspector, having found that one sort of café/bar was acceptable, was required by policy (he does not put it as a requirement of law) to grant permission and leave it to the licensing process so to limit the use as to avoid the potential adverse effects that concerned him - is unsustainable. There is no policy to this effect. In any event, the circumstances of the present case were such as to entitle the Inspector, and probably to oblige him, to approach the matter as he did. Under [the structure plan], the prevention of crime was a material consideration. Under [the local plan].... it was material for him to consider whether the development would have an adverse effect on the amenities of the neighbourhood..... In order to take account of these matters, in my view, the Inspector necessarily had to have regard to the particular nature of the eating and drinking establishment that was proposed.
The appellant's proposal was for what was described as a café/bar, and he identified two establishments.... to illustrate what that description would include..... The Inspector found that an operation like [the restaurant-type establishment] would have a positive effect on the area, but that a [public house] type operation would have a negative effect. I can see no reason why, having come to this conclusion, the Inspector should then have been compelled to grant planning permission in terms that would permit the very type of operation he found to be unacceptable and one that was contrary to planning policy. On the contrary.... it was undoubtedly in accordance with policy that he should refuse permission."
"I agree with the previous Reporters that the controls available to the licensing board do not relieve the council from its responsibility to exercise planning control over potential conflicts of use. I therefore reject your argument that control over the opening hours of licensed premises should be the sole responsibility of the licensing board."
This passage encapsulates the point which I have endeavoured to make at greater length: that, since the opening hours create a potential conflict between the neighbouring land uses, it is both proper and necessary for them to be controlled by the planning authority, notwithstanding that they are also subject to control by "another body, discharging a different statutory function for a different purpose" (to adopt the expression used in J.E. Sheeran (Amusement Arcades) Ltd v Hamilton District Council). The Reporter's reasoning on this point is in my opinion clear. Although he expressed himself succinctly, he was not required to attempt a full explanation of the legal relationship between planning and licensing: to adopt the formulation of Phillips J. in Hope v Secretary of State for the Environment which was approved in Save Britain's Heritage (at page 167), the Reporter's words enable the reader to know what conclusion he reached on this issue.
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
"59. As was pointed out in the James and Others judgment of 21 February 1986 [(1986) 8 EHRR 123, para.37], the second paragraph of Article 1 of the Protocol has to be construed in the light of the general principle set out in the first sentence of this article. This sentence has been interpreted by the court as including the requirement that a measure of interference should strike a 'fair balance' between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. The search for this balance is reflected in the structure of Article 1 as a whole and hence also in the second paragraph. There must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised."
Counsel submitted that it was disproportionate to impose a permanent and inflexible control under the planning legislation when there existed an equally rigorous regime under licensing law which was flexible and allowed for periodic reviews, and which required (under section 64(8) of the 1976 Act, and section 47(1) of the 1990 Act) the striking of a balance between the relevant interests. Counsel also emphasised the absence of objection by the Environmental Health Department. In relation to the application of the principle of proportionality, and the issue of deference to the executive or legislature within the "discretionary area of judgment", counsel adopted the statement of the law in Reed and Murdoch, A Guide to Human Rights Law in Scotland, at paragraphs 3.94 and 3.95, including the passages cited there from the speech of Lord Hope of Craighead in R v DPP, ex parte Kebilene  2 AC 326 and the judgment of Simon Brown L.J. in R v Secretary of State for the Home Department, ex parte Turgut  1 All ER 719. Counsel also cited Gasus Dosier-und Fördertechnik v Netherlands (1995) 20 E.H.R.R. 360.