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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Eden Restaurants (Holborn) Ltd v Secretary Of State For Environment, Transport & Regions & Anor [1999] EWHC Admin 759 (29th July, 1999) URL: http://www.bailii.org/ew/cases/EWHC/Admin/1999/759.html Cite as: [1999] EWHC Admin 759 |
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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
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:
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.
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:
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:
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:
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:
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.
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.
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.
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.
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:
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.
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.
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.
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.
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.
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:
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.
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.
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:
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.
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?
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?
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?
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.