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Cite as: [1999] EWHC Admin 759

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EDEN RESTAURANTS (HOLBORN) LIMITED v. SECRETARY OF STATE FOR ENVIRONMENT, TRANSPORT AND REGIONS and COUNCIL OF CITY OF WESTMINSTER [1999] EWHC Admin 759 (29th July, 1999)

IN THE HIGH COURT OF JUSTICE CO 3402/98

QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST )



Royal Courts of Justice
Strand
London WC2

Thursday, 29th July 1999


B e f o r e:

MR ROBIN PURCHAS QC
(Sitting as a Deputy Judge of the Queen's Bench Division)

- - - - - - -

EDEN RESTAURANTS (HOLBORN) LIMITED

-v-

THE SECRETARY OF STATE FOR THE ENVIRONMENT,
TRANSPORT AND THE REGIONS

and

THE COUNCIL OF THE CITY OF WESTMINSTER

- - - - - - -

(Computer-aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Telephone No: 0171-421 4040/0171-404 1400
Fax No: 0171-831 8838
Official Shorthand Writers to the Court)

- - - - - - -
MR N FOOKES (instructed by CMP Magill, Newbury, Berkshire RG20 9EP) appeared on behalf of the Applicant.

MR J HOBSON and MISS D RHEE (instructed by The Treasury Solicitor) appeared on behalf of the First Respondent.

MISS N LIEVEN (instructed by Legal Services, Westminster City Council, London SW1E 6QP) appeared on behalf of the Second Respondent.

J U D G M E N T
(As approved by the Court)
(Crown Copyright)
Thursday, 29th July 1999 .

1. THE DEPUTY JUDGE: In this application Eden Restaurants (Holborn) Ltd apply under section 288 of the Town and Country Planning Act 1990 to quash the decision of an Inspector, on behalf of the First Respondent, dismissing their appeal against the refusal by the Second Respondent of planning permission for the continued use of the basement of 33 Rathbone Place, London W1 as a restaurant/bar without complying with Conditions 4 and 5 imposed on a planning permission dated 30th June 1995 for that use on the premises. The conditions restricted the hours of the use and the operation of plant and associated equipment to between

8 a.m. and 11 p.m. Monday to Saturday and 10 a.m. to 10.30 p.m. on Sundays and bank holidays.

2. I should explain that the music and dancing licence, granted in respect of the premises, permitted opening until 2 a.m. from Monday to Thursday; 3 a.m. on Friday and Saturday and midnight on Sunday.

3. At the Inquiry, the Applicants proposed a variation of the planning conditions to accord with the hours permitted under the music and dancing licence.

4. Mr Robert Fookes, who appears for the Applicants, advances six main grounds of challenge, namely:

1. That the Inspector wrongly failed to take into account the decision made by the Licensing Authority in respect of the extended hours, alternatively she failed to give adequate reasons (the Licensing ground);
2. That the Inspector misunderstood or failed to give effect to the Applicants' noise survey, alternatively her reasons were inadequate (the noise survey ground);
3. That the Inspector otherwise took into account irrelevant considerations or failed to give adequate reasons in respect of her conclusions as to the loss of residential amenity (the Residential Amenity ground);
4. That the Inspector erred in law in relying upon precedent (the Precedent ground);
5. That the Inspector failed to consider whether some other condition might be imposed so as to allow an extension less than that permitted under the licence, alternatively she gave inadequate reasons (the Condition ground); and
6. That the Inspector failed to give adequate reasons as to her conclusions in respect of the application of the development plan (the Development Plan ground).

Background

5. The appeal premises are within that part of London known as Fitzrovia, north of Oxford Street and west of Tottenham Court Road. The basement is part of a five storey building with commercial uses on the upper floors. It adjoins a post sorting office to the south. There is a public house, the Wheatsheaf, opposite. There are shops and A3 (food/drink) uses on both sides of the street to the north, and residential uses on the upper floors.

6. In the development plan, the premises fell within the central activities zones, that is an area where central London activities are encouraged.

7. The Applicants acquired the premises in 1996. They were operated as a bar/restaurant with music and dancing. Under the Applicants' management, it appears that the bar and restaurant were kept open in accordance with the extended hours permitted under the music and dancing licence; that is, until 2 a.m., 3 a.m., or midnight depending upon the day of the week.

8. The music and dancing licence with the extended hours had originally been granted in April 1995. In June 1995 planning permission was granted for the use, subject to the more restricted hours.

9. Following their acquisition, the Applicants applied for the transfer and renewal of the music and dancing licence. This was considered by the Second Respondent's Licensing Sub-committee in April 1997. The discrepancy with the hours allowed under the planning permission was drawn to the attention of the sub-committee, but it resolved to renew the licence as originally granted with the extended hours.

10. The Applicants then applied under section 73 of the Town and Country Planning Act 1990 for planning permission for the continuation of the use without compliance with the conditions as to hours.

11. On 6th November 1997, that application was refused. The applicants appealed. An inquiry was held on 7th July 1998. The appeal was dismissed by letter dated 30th July 1998.


The Decision Letter

12. At paragraph 4, the Inspector summarised the main issues as follows:

"From my inspection of the appeal site and its surroundings, and from the representations made at the inquiry and in writing, I consider that the main issue is whether the removal of these conditions would seriously harm the living conditions of residents of the locality through late night noise and disturbance."

13. In paragraph 5, she considered the development plan, that is the City of Westminster Unitary Development Plan. She noted that the appeal premises were within the central activities zone. She referred to policies STRA 1-5, which supported change and development to enhance its character. She referred to the policies to safeguard residential amenity, that is Policy H10(B) and policy SS13, which specifically provided for restriction of hours of opening on A3 uses where there were residential properties located within the vicinity and the use was likely to result in a loss of amenity.

14. In paragraph 7 she described the premises and the locality. In paragraph 9 she dealt with the licensing history. At paragraph 10 she continued:

"Having considered all the matters raised, it is clear to me that the UDP has policies which support the appeal proposal. However, these do not override the need to consider the question of residential amenity."

15. She then referred to five appeal decisions concluding:

"However, none of these situations are identical to 33-34 Rathbone Place and in my view the decisions served primarily to underline the point that some parts of the CAZ are less suitable than others for the location of late night activities. The question at issue in the present appeal is whether limitations on late night use are justified in this particular case."

16. In paragraph 11 she referred to the past history of complaint or, rather, the lack of direct formal complaint from residents. She also noted the Applicants' noise survey which found:

"...that the activities from the [appeal premises] did not register significantly above the background sound."

17. She continued at paragraph 12:

"In assessing the question of harm to residential amenity, I have noted the reference in PPG24 to the noise which may be made by customers in the vicinity of late night uses and the disturbance caused by traffic and associated car parking. Whilst not querying any of the technical results of the noise survey, I have to bear in mind that it was carried out on one evening only and that this was a Friday in good weather when it could be expected that more people would be outside, contributing to the background noise levels. Furthermore, the GPO sorting office would have been in operation all night whereas it appears that normally this does not operate later than 00.30 on Saturday night/Sunday mornings which again would reduce normal background noise levels after that time. Observations made during four visits by the Council's witness refer to groups of customers leaving the premises around
03.00 and spending some time dispersing either on foot, in their own cars or by minicabs. This created noise from car doors and engines and the sounds of people talking, shouting and laughing. Although the predominant direction of those walking away was south towards Oxford Street, a significant number went in a northerly direction and were observed going to the night bus stop at Goodge Street or getting into cars on nearby roads."

18. In paragraph 13, she noted the appeal premises were situated at:

"...the junction of two areas with different characters: that to the north, around Rathbone Street, Charlotte Street and Percy Street, which contains significant residential accommodation, and that to the south, closer to Oxford Street, which has little."

19. At paragraph 14 she continued:

"At the inquiry, two residents of flats above 29 Rathbone Place explained their objections to the removal of conditions 4 and 5. A petition was submitted against the proposals, signed by 7 other people. The problems referred to included interruption of sleep by late night noise from customers leaving the premises, from music issuing out of the open windows and from sacks of bottles being placed on the payment for an early morning refuse collection. They stated that complaints had been made directly to the management, to the Council's noise team and to the local residents' associations. Concern was expressed that, if planning permission was granted in this case, more late night uses would follow and the area's character would change and become less pleasant as a place to live.

15. I have given very close consideration to the situation in which your client company finds itself, having discovered after purchase that the planning situation is not as it thought. I have also borne in mind the investment that has been made, the prompt way in which the problem of noise emission was dealt with in December 1996 and the obvious desire to attempt to ameliorate those problems raised by residents at the inquiry. Nevertheless, it is my view that even the best management practice cannot control the inevitable noise which would be made when large numbers of customers leave the premises in the small hours and disperse through the area. I have no reason to doubt the observation that on some occasions around 100 customers will be leaving in the period just before the weekend closing time of 03.00. There is living accommodation above the pub and the shops immediately opposite and also above numbers 29, 30 and 31 Rathbone Place, separated from the appeal premises by only a single non-residential building. In my opinion, there is evidence that the present opening of the premises beyond the hours permitted by condition 5 causes significant harm to the living conditions of nearby residents. It is not the case that they have not sought to complain and weight should be given to the representations of the Fitrovia Neighbourhood Association and the Charlotte Street Association made on their behalf. It is my conclusion that the proposed extension of hours in this case would be contrary to UDP policies H10(B) and SS13 which have a similar test, that developments should not significantly reduce the amenity of residential accommodation. The grant of a licence does not, in my view, override the planning considerations as licensing conditions are not made on the same basis.

16. I find the question of precedent important as the grant of planning permission in this case would clearly make it difficult for the Council and the neighbouring Camden Council, which has similar protective policies in its draft UDP, to refuse further applications for late night uses close to residential properties. The fact that there has been a 21 month trial run in this case with apparently no formally logged complaints would not prevent an accumulation of such late night uses from bringing about a distinct deterioration in the residential environment of the locality. The UDP has a number of aims among which are those of enhancing the attraction of central London and maintaining economic vitality and diversity. An equal and interlinked aim of the plan is that of building stable residential communities. I noted from my inspection that there appears to be ongoing investment in residential property in this area with purpose built blocks of flats in Rathbone Street and Gresse Street and the refurbishment of flats at 29 Rathbone Place. The evidence from interested persons at the inquiry was that they are not transient or short term residents but have lived in the area for many years. These factors lead me to put considerable weight on the desirability of maintaining a reasonably acceptable residential environment in this locality, in line with the advice of PPG6, which in itself will contribute to the vitality of this part of central London.

17. Clearly a balance has to be struck between the two aims of the UDP and in this case I consider that there is sufficient evidence of harm to the living conditions of nearby residents as to make the appeal proposal contrary to the development plan. I find conditions 4 and 5 comply with the advice of Circular 11/95 and that there are sound and clear cut reasons for retaining them. I have taking into account all the representations, but there are none which outweigh those leading to my decision that the refusal of planning permission is justified."

20. The Inspector went on to dismiss the appeal.


1. Licensing
Submissions

21. Mr Fookes submits that, in effect, the question to be determined by the Licensing Sub-committee involved the same question as the Inspector had identified as her main issue in the appeal, that is whether there would be serious harm to residential amenity. He points out (as set out in the report to the Licensing Sub-committee) the Second Respondent's general policy was to ensure that:

"The venue does not unduly affect residents or local business adversely in terms of noise, disruption and impact on the character of the local environment."

22. As he says, when the sub-committee first considered the transfer of the licence to the present Applicants and its renewal, there were objections from the planning division of the Second Respondents, specifically on the grounds of the Planning Committee's concern that:

"The restriction of opening in accordance with conditions 4 and 5 on planning permission was essential to safeguard the amenity of the occupiers on neighbouring residential properties in the vicinity and the area generally."

23. As a result, the grant of the licence had to be determined by the sub-committee itself and not under delegated powers. Mr Fookes submits that the Inspector should have taken into account the Licensing Sub-committee's determination, which involved the identical question in respect of the same premises and the same use and was, as a result, highly material.

24. Instead, at paragraph 15, the Inspector discounted the licensing decision because "licensing decisions are not made on the same basis."

25. Mr Fookes submits that "not made on the same basis" means not having, as he puts it, any "commonality of relevant material". Alternatively, he says, the reasons given were deficient in that the Inspector did not explain what approach she took.


Decision

26. In a situation where a decision-maker has before him a previous decision that is potentially relevant, he must first determine whether it is, in fact, material and then if it is, decide what weight should be given to it. If his decision is such as to involve inconsistency with the earlier decision, he should taken earlier decision into account, including the desirability of consistency in decision-making, and, where appropriate, give reasons why he has reached a contrary view.


27. In paragraph 9 of the decision letter, the Inspector set out the licensing history in some detail. In paragraph 15 she considered the effect of opening the premises beyond the hours permitted by the planning conditions and concluded that it caused significant harm to the living conditions of nearby residents.

28. She went on to conclude that the proposed extension of hours would be contrary to the relevant development plan policy. That was, of course, a potentially significant conclusion in the planning context, because section 54A of the Act requires a decision to be made in accordance with the development plan unless material considerations indicate otherwise.

29. She then concluded that paragraph:

"The grant of a licence does not, in my view, override the planning considerations as licensing decisions are not made on the same basis."

30. There are, of course, a number of differences between licensing and planning control and administration. There is, for example, no equivalent statutory obligation on the licensing committee to take into account or apply the development plan. That could have particular relevance in paragraph 15 of the decision letter, where the Inspector had concluded that the proposal would result in a breach of development plan policies.

31. The Inspector also had evidence at the inquiry from the Second Respondent's planning officer that in licensing there was a presumption against the restriction of hours and that the approach to representations and consultations was different. Moreover, in contrast to planning permission, the grant of a licence is personal for a limited period and more readily open to revocation. Thus, it seems to me that what the Inspector was doing in the last sentence of paragraph 15 was to make clear that, while she had considered the licensing decision, it did not override her conclusion, for planning purposes, that the extension in hours did cause significant harm and was in breach of the relevant development plan policies. The reasons she gave that licensing decisions are not made on the same basis seems to me, in the circumstances, both pertinent and entirely justified. Thus, I do not accept the construction that Mr Fookes invites me to put on this part of the decision letter. I do not consider that it reveals any error of law or approach. The reasons were, in my judgment, sufficient. Accordingly, this ground fails.


2. Noise Survey
Submissions

32. Mr Fookes takes a number of points regarding the Inspector's treatment of the noise survey. He submits that, having accepted in paragraph 12 the technical results of the survey, the Inspector's express reasons for discounting or placing less weight on the survey were either irrelevant or perverse. Alternatively, she has not sufficiently explained her reasoning. He says that there was no evidence for the conclusion that more people would be outside in good weather in June, at least at the times which matter, that is in the early hours of the morning. Even if that was the case, he submits, in cold weather windows would be closed and any noise disturbance would accordingly be less.

33. Moreover, the closure of the sorting office at 12.30 a.m. on Saturday mornings would not effect the degree of disturbance on other days of the week. Thus the Inspector, he says, can be seen to have failed to give effect to her acceptance of the results of the survey which demonstrated that noise of groups leaving the premises would typically result in noise levels well below the ambient and peak noise levels at the closest residential accommodation.

34. Furthermore, in relying upon evidence from the Second Respondent's planning officer as to noise from customers leaving the premises, the Inspector was, he says, effectively double-counting the impact, because those noise effects were already taken into account in the noise evidence. This is a central part of the Inspector's conclusions and, accordingly, cannot be supported, he submits, in law.


Decision

35. Mr Fookes accepts, as he has to, that the Inspector took the noise survey into account. Indeed, the passage in the survey on which he specifically relies is succinctly summarised by the Inspector in the last sentence of paragraph 11 where she records that the survey:

"...found that the activities from [premises] did not register significantly above the background sound."

36. The survey provided technical evidence as to noise levels, the results of which the Inspector accepted and took into account. I am, however, wholly unpersuaded that it was not also open to the Inspector to "bear in mind" in considering the survey and the other evidence before her that on a fine June night there could be expected to be more people outside contributing to the background noise. That was, of course, relevant. The noise survey was based on a comparison between noise generated in connection with the use of the appeal premises and the noise from other activities, including people outside in the street during the survey period.

37. In that respect, the survey itself recorded a pedestrian count between 2 and 3 a.m., which showed 101 persons leaving the premises and 140 unrelated pedestrian movements. With the reduction in the number of people outside generally, it might reasonably be expected that the impact and noise from people leaving the appeal premises, be it on foot, by car or by taxi, would be comparatively greater.

38. I should add that the author of the report was not called to give evidence. The only technical noise evidence before the Inspector was that contained in the survey which was, itself, limited to the one night on which it was carried out. Thus, there was no opportunity for cross-examination or to explore its findings further. The Inspector was left to form her own views on it in the light of the submissions from the parties.

39. Noise from vehicles visiting the sorting office was also identified as part of the ambient noise in the survey. Thus the fact that the sorting office was not open after 12.30 a.m. on Sunday mornings was relevant to noise impact after that time when, as the Inspector points out, the normal background noise level would be reduced. I see no warranty on the face of this decision letter for inferring that, notwithstanding that specific reference, the Inspector failed to appreciate that that reduction in background noise level would not apply on other nights of the week.

40. Having considered the noise survey in that way, the Inspector was, in my judgment, fully entitled also to consider other evidence in the case, in particular the evidence of the planning officer who had visited and observed the premises on four occasions, on at least one of which until 3.45 a.m. The noise survey did not claim that noise from people leaving the appeal premises would not be audible above the background noise. The impact from groups of customers leaving the premises and thereafter dispersing and, according to the planning officer, the noise of car doors and engines and people talking, shouting and laughing was entirely for the Inspector's expert assessment. Taking into account all the evidence including, but not limited to, the noise survey, there is nothing in the decision letter which would, in my judgment, justify a conclusion that the Inspector had failed to appreciate that the noise survey had itself provided noise readings of those events. The reference at the end of paragraph 11 of the decision letter to the survey makes it clear that she had that well in mind. In my judgment, the approach of the Inspector, reflected in the decision letter, is one which was open to her and supported on the evidence. There was no inadequacy of reasoning. Accordingly, this ground also fails.


3. Residential Amenity
Submissions

41. Mr Fookes submits that the Inspector should have made findings whether the complaints made by third parties were justified. He criticises the reference by the Inspector in paragraph 14 in recording the evidence by local residents that sacks of bottles were put out after closing time on the basis that that practice might not have changed with shorter opening hours. He also criticises the statement by the Inspector, at paragraph 15, that she had no reason to doubt the observation, on some occasions, that around 100 customers would be leaving "in the period just before the weekend closing time of 03.00". Mr Fookes points out that there was no evidence directly to that effect, albeit that there was evidence that on the occasion of the survey just over a hundred customers left in the hour before closing and the officer gave evidence to similar effect. Taken together, he submits, these failures would render the Inspector's conclusions in this respect unsound and unsupportable.


Decision

42. The obligation on the Inspector was to set out the principal reasons that led to her decision. She did not have to deal with all material considerations, but only the main issues. She did not have to make findings on issues that were not relevant to the conclusions that she reached on those main issues.

43. In paragraph 15, the Inspector concluded that the opening of the premises beyond the hours permitted by the planning conditions caused significant harm. She rejected the contention by the Applicants that there had not been attempts to complain. She went on to conclude that weight should be given to the representations on behalf of the residents' associations. While those representations do not record actual detriment to residential amenity, it is plain that the Inspector considered that the grounds for their objection that there would be detriment to residential amenity were well-founded. Whether there was in fact a specific observation made at the inquiry, there was ample evidence, in my judgment, for the Inspector to conclude or not to doubt that on occasion about hundred people would leave the premises just before weekend closing. Taken individually or together, there is, in my judgment, nothing in these criticisms made by Mr Fookes of the decision letter.


4. Precedent
Submissions

44. Mr Fookes submits, that before a decision-maker can rely upon precedent as a ground for refusal or dismissal, there must be evidence of the likelihood or real prospect of precedent. He referred me to various authorities, including Poundstretcher Limited -v- Secretary of State for the Environment (1988) 3 PLR 69. On the basis of those authorities, Mr Fookes attacked paragraph 15 of the decision letter, where the Inspector relied upon precedent as one of her grounds for dismissal. He submits that there was no evidence of any other premises for which permission for extended hours on the appeal site would set a precedent, let alone the whole of the central activity zone and the Borough of Camden as, he says, was suggested by the Inspector. He also submits that the Inspector's reliance on precedent in paragraph 15 is inconsistent with her conclusions in paragraph 10, where she distinguished the appeal decisions produced by the Second Respondent on the ground that none of their situations were identical to the appeal site, thus demonstrating that each case should be considered on its particular merits.


Decision

45. The evidence before the Inspector in the present case was that there was an extensive residential area to the north of the site and a number of A3 and similar uses that were not permitted to operate significantly beyond public house closing hours. The Inspector concluded that the extension of the permitted hours had caused significant harm to the amenity of nearby residents, in conflict with relevant development plan policies.

46. It seems to me plain, that, if, notwithstanding that conclusion, she was to grant permission for the extended period by varying the conditions, her decision would have been likely to set a precedent for other "late night uses close to residential properties" subject to similar protective policies.

47. The Inspector was, accordingly, fully justified, in my judgment, to conclude that precedent would make it "difficult" for the authorities to refuse other applications, as they would be faced with a recent appeal decision on behalf of the First Respondent approving extended hours in the face of a finding that it would cause detriment to residential amenity in breach of the relevant development plan policy. It would be highly likely that reliance would be placed on the decision by others making similar applications in the area, just as the Applicants in the present case relied upon licensing extensions elsewhere in support of their application.

48. I do not consider that the Inspector's concern over precedent was fanciful or speculative. There was evidence before her to support her conclusion in that respect which is not, in my judgment, to be faulted. This ground also fails.


5. Conditions
Submissions

49. Mr Fookes submits that, when the question of conditions has been raised (as under section 73 of the 1990 Act it inevitably is), there is a duty on the decision-maker to consider whether, and to what extent, any detriment or objection he may find would arise could be addressed by an appropriate condition. He referred me to M J Shaney -v- Secretary of State for the Environment (1982) JPL 380 and Marie Finlay -v- Secretary of State (1983) JPL 802.

50. The latter decision was confirmed by the Court of Appeal in Topdeck Holdings Limited-v- Secretary of State (1991) JPL 961 where, having referred to the judgment of Forbes J in Marie and Finlay , Mann LJ said at 965:

"He (Mann LJ) respectfully agreed with the view expressed by Forbes J. Such an approach had to work sensibly in practice. An Inspector should not have imposed upon him an obligation to cast about for conditions not suggested before him. He emphasised 'obligation'. If, of his own motion, he wished to impose a condition, then, as Forbes J suggested, different considerations would arise, including perhaps the reopening of the appeal. He (Mann LJ) expressed no view upon such a situation. In his judgment, in this case the Inspector was under no obligation, such as
Mr Cochrane had suggested he was, and he would reject that argument also."

51. While Mr Fookes accepted that the Applicants had not themselves suggested any different form of condition at the inquiry, he submits that the Inspector should have considered, in particular, a condition that permitted extended hours of opening from Monday to Friday, albeit restricting them on Sunday morning, when the sorting office closed.


Decision

52. Paragraph 9 of the decision letter makes it plain (as is accepted by Mr Fookes) that the Applicants conducted their case on the basis of a variation in the permitted hours to accord with the music and dancing licence. The evidence focused on that proposed extension. The Inspector was not invited to consider any halfway house. Moreover, her findings were not such as obviously to point to the possibility of a partial extension.

53. In paragraph 15, she concluded that opening "beyond the hours permitted by Condition 5" caused significant harm. On the face of the decision letter, that conclusion did not suggest that in her view there was a lesser extension that might have been acceptable. Certainly that was never suggested to her. In my judgment, she is not to be criticised for not dealing specifically with the suggestion of some other condition which appears to have been made for the first time in this Court.


6. Development Plan

54. I can again deal with this ground shortly. Mr Fookes accepts that the proper approach under section 54A of the 1990 Act to a development plan which contains policies, some of which may support a proposal and others which may militate against it, is to be found in the opinion of Lord Clyde in City of Edinburgh Council -v- Secretary of State for Scotland (1997) 1 WLR 1447 at 1459E:

"[The decision-maker's] decision will be open to challenge if he fails to have regard to a policy in the development plan which is relevant to the application or fails properly to interpret it. He will also have to consider whether the development proposed in the application before him does or does not accord with the development plan. There may be some points in the plan which support the proposal but there may be some considerations pointing in the opposite direction. He will be required to assess all of these and then decide whether in the light of the whole plan the proposal does or does not accord with it."

55. In paragraph 17, the Inspector sought to balance the aims of the development plan some of which supported the proposals and others which supported "building a stable residential community" as she had set out in paragraph 16.

56. In making that balance she concluded that there was a sufficient degree of harm to the living conditions of nearby residents (with which she had dealt at paragraph 15) to make the proposal contrary to the development plan.

57. Mr Fookes says that that part of her decision letter is inadequate and misconceived in approach. I disagree. It seems to me that the Inspector's approach to the two sets of policies, which she identified in paragraph 5, and their respective aims was clear and in accordance with law. She was not obliged to say more than that she had balanced the two and concluded that, on the findings she had made, the proposals were overall contrary to the development plan. That was a judgment to which she was entitled to come. This ground accordingly also fails as does this application.

58. Mr Fookes, I am conscious that in giving my judgment, I said the licencing hours went to 12.00 rather than 12.30? Can you remind me where they go to on Sunday evenings?


59. MR FOOKES: On Sundays evenings they go to 12.30 a.m. Can I also just suggest that whenever you refer to Saturday at 12.30 it is Sunday morning. [note: In fact it is midnight.]


60. THE DEPUTY JUDGE: I am sure the shorthand writer will not be able to pick up those two amendments, but if you can, just leave me a note. Thank you very much.


61. In those circumstances, as I say, this application is dismissed.


62. MISS RHEE: My Lord, in the circumstances, I would ask for an order dismissing the appeal and that the costs be in the First Respondent's favour.


63. THE DEPUTY JUDGE: Yes, Miss Rhee, I am grateful. Any other applications? I will deal with the order for costs and then we will come to assess them. Do you have anything to say, Mr Fookes?


MR FOOKES: No, my Lord.

64. THE DEPUTY JUDGE: In those circumstances, I will award costs to the First Respondent. I should ask you, Mr Fookes, first of all, is this case appropriate for summary assessment?


65. MR FOOKES: I think so, yes. Subject to the point that I have on it, there is only one point.


66. THE DEPUTY JUDGE: I have a statement accompanying a letter of 22nd July 1999 in a total sum of £4,218. Has that been amended?


67. MISS RHEE: Yes, my Lord. There is a later one.


68. THE DEPUTY JUDGE: Could someone provide it to me (same handed).

Yes, Mr Fookes.

69. MR FOOKES: My Lord, the only two items I am unsure about and, therefore, I am opposing, are two items of £500 under the heading "aborted hearing preparation 26th April and 16th June". In both those cases what that relates to is -- the history of this matter was that when the parties were expected to come on the next day, at lunchtime the previous working day, we were told there was not a court available.


70. THE DEPUTY JUDGE: It is lunchtime the previous day?


71. MR FOOKES: It was a Friday, 26th April. It was at lunchtime on Friday and we were told there would not be a court on the Monday. The second one, I believe from memory, at some stage on the Tuesday, we were told there would not be a court on Wednesday.


72. THE DEPUTY JUDGE: Briefs presumably had been delivered.


MR FOOKES: Yes.

73. THE DEPUTY JUDGE: This goes to counsel's fees?


MR FOOKES: Yes.

74. THE DEPUTY JUDGE: It is then a matter of assessing what work would have been done.


75. MR FOOKES: As I understand it, normally, when matters are floating in the list, it is just one of those things that happens, you either get on or you do not get on on the day expected. All that is taken account of in the brief fee rather than an extra fee which the unsuccessful Applicant has to bear through no fault of his own.


76. When we prepared our claim, we did not include that, although we amended it subsequently to put it in if allowable on that basis.


77. THE DEPUTY JUDGE: That is why it had the word if "allowable".


78. MR FOOKES: That is why we put it that way because, in these circumstances, we would be arguing it should not be, because I do not think, as a matter of practice in the past, costs could have been included at the taxing stage.


79. THE DEPUTY JUDGE: Have you made inquiries on that?


80. MR FOOKES: I have not made inquires, no, other than through my own clerks.


81. THE DEPUTY JUDGE: It is different from when a case settles where a fee will be paid, albeit less sometimes than the brief fee.


82. MR FOOKES: This is an administrative matter which arises through----


83. THE DEPUTY JUDGE: Did you have a second point?


84. MR FOOKES: No, there are two items.


85. THE DEPUTY JUDGE: It is the same point. Miss Rhee?


86. MISS RHEE: My Lord, I have nothing further to say other than the fact that the overall fees are relatively modest in the case of a First Respondent and I would urge your Lordship to take that into account.


87. THE DEPUTY JUDGE: What I would like to know, specifically, where a case comes out of the list in these sort of circumstances, is counsel who is instructed by the Treasury Solicitor then paid a brief fee in addition to what he is paid for appearing on the final hearing?


88. MISS RHEE: My Lord, I have sought to take instructions on that point from my instructing solicitor, but he has not been able to assist me further on that, he is not aware of the usual practice (pause).


89. My Lord, I have just taken instructions on that point and the usual practice appears to be that where hours have been marked down in preparation for a case, the Treasury Solicitor will be billed for those hours. It is a question of who is to meet the cost of those extra hours spent or whether it should be transferred as costs to the Applicant.


90. THE DEPUTY JUDGE: Anything else?


MISS RHEE: No, my Lord.

91. MR FOOKES: It is probably no help at all, but as far as skeleton arguments are concerned, it is now the practice of the Treasury Solicitor to itemise the skeleton arguments. I am not objecting to that. There is some practice guidance on that. The reason that is done, it is taken out of the brief and separately itemised -- it is not an increase on the brief -- because, under the Practice Direction, there may be an increased amount allowable on the brief fee if someone else has to do the case, someone other than the person who drafted the skeleton. Therefore, if someone prepares the case but can not do it and someone different had to do it, I can see there might be an argument for the preparation. My point is, where it is the same person who does it, that is just part of the swings and roundabouts in which everyone operates.


92. THE DEPUTY JUDGE: Can I understand how this works. I had assumed that the £500 up against skeleton was additional to the brief fee.


93. MISS RHEE: My Lord, if I could be of assistance on this point. I have just been told that in the case of instructions from the Treasury Solicitor there is not usually a brief fee as such, instead counsel is paid for the hours.


94. THE DEPUTY JUDGE: I am familiar with that. The point I am making is different. I am going to call it a brief fee, it is the amount that is paid on the brief. Is £500, in terms of maths, in any event, additional to the figure put against counsel? I assume it is.


95. MR FOOKES: It is additional to hearing.


96. THE DEPUTY JUDGE: What I am trying to understand is, I have an item at the top carried forward. I then have a figure for skeleton.


97. MR FOOKES: The matter carried forward is solicitor's costs.


98. THE DEPUTY JUDGE: The first three items, skeleton, aborted hearing and aborted hearing. There is then the hearing. There is judgment which has been added in, that is the amendment. There is a total figure which is given at the bottom there. It is, in the sense, additional.


99. MR FOOKES: Yes, to the hearing fee that is paid. Additional to the solicitor's costs.


100. THE DEPUTY JUDGE: Thank you very much. I propose to assess the costs and I do in the exceptional circumstances of the Treasury Solicitor include the sums paid for the aborted hearings. I do not regard that as in any way a precedent for what I recognise as the normal practice where a brief fee will encompass aborted hearings. In this case, given the practice of the Treasury Solicitor which is rather different, I regard the sums there as being modest and reasonable to be recovered. I accordingly assess the costs in the overall sum of £4,362.38. Is there anything else?


101. MR FOOKES: I have a short application to make as to leave to appeal. I am not going to go through----


102. THE DEPUTY JUDGE: Just to remind me, it is reasonable prospect of success. It is permission rather than leave to be given.


103. MR FOOKES: Yes, unless there is no realistic prospect of success which is rather different. It is in the Practice Direction at paragraph 10.


THE DEPUTY JUDGE: Yes.

104. MR FOOKES: "The general test for leave" do you have that?


105. THE DEPUTY JUDGE: What are you reading from?


106. MR FOOKES: I have it in the Practice Direction issued in January which has been reissued as part as the larger Practice Direction which is in identical terms.


107. THE DEPUTY JUDGE: Where can I find it?


108. MR FOOKES: It is paragraph 10. Can I just hand you a copy (same handed). "The general test for leave" is the heading of paragraph 10.


109. THE DEPUTY JUDGE: I am looking at the Weeklies. Can you give me the paragraph again?


110. MR FOOKES: In the new Practice Direction it is 2.8.1.


111. THE DEPUTY JUDGE: Yes, I think that is what I have been looking at.


112. MR FOOKES: I think the words are identical.


113. THE DEPUTY JUDGE: "No real" those are the words I had in mind, "unless an appeal would have no real prospect of success" the point you make is the other way round, to the way I put it. It should be given unless there is no real prospect of success.


114. MR FOOKES: There is actually a different test for the question of whether a point of law would have any effect on the eventual outcome, which I think those words come from. "If leave were given, unless the appeal would have no realistic prospect of success". The point on which I put my application is simply this: the impact and effect of section 73 and 73A and the way in which the conditions are dealt with on those appeals is a matter of wider import than necessarily this case. It is a general point and it is a point that has not be considered or decided. There is inevitably, as a result of your Lordship's judgment, an obligation upon anyone going into a section 73 type of hearing, to list a very wide range of possible outcomes and that is a matter I would ask leave to take to the Court of Appeal to see whether it is necessary to be specific or, whether a more general approach applies in the circumstances of section 73.


115. THE DEPUTY JUDGE: Miss Rhee, I need not trouble you. Permission will not be given in this case. I am satisfied that although I understand the point Mr Fookes refers to, there is no real prospect of success on that ground of appeal. Permission is refused. Is there anything else? I am very grateful.


© 1999 Crown Copyright


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