Inspector refusing permission for leisure development on ground that drivers making deliveries would use unsafe means of access – Decision letter making no explicit reference to possibility of imposing appropriate condition – Whether decision vitiated by such omission – Developer’s appeal dismissed
In 1997 the appellant (the company) applied to the second respondents (the council) for permission to develop a site at Britannia Bridge, Sale, as a restaurant, wine bar and night club following the demolition of an existing building. The main entrance was virtually on the bridge, close to a pelican crossing. A rear entrance was accessible from a car park, however persons using that entrance for the delivery of beer and other supplies would have to negotiate a narrow passage and two flights of steps. Although the main features of the proposal found favour with the council, the application was refused on two grounds: the first relating to car parking, the other to the means of effecting deliveries (the servicing objection). The company appealed to the Secretary of State, whose inspector proceeded by way of informal hearing, at which the company was represented by a planning consultant. Having disposed of the parking objection, the inspector endorsed the council’s view that deliveries at the main entrance would create unacceptable road safety hazards. In his decision letter dismissing the appeal, the inspector made the following observation on the company’s assertion that ways could be found to ensure that all deliveries would be made via the car park: “I have no doubt that experienced draymen could take these awkward conditions in their stride and accept entirely that it would be the appellant’s intention to require all servicing to be in this manner . . . However what is sought here is a permission in perpetuity and there is no concurrent certainty that the appellants will always manage or be in control . . . I see no way of directing by planning means that the proposed sevicing arrangements be maintained as an enduring condition of the development . . . another operator of the business might not insist on this delivery system being employed [which] would not be immediately apparent to visiting drivers unfamiliar with the site . . . it is quite possible that servicing could be attempted direct from [the main road]”.
The company appealed to the High Court contending, inter alia, that the inspector had failed to consider whether, and if so how, the desired permanent restriction on using the main entrance for servicing purposes could be achieved by imposing an appropriately worded condition.
Held The appeal was dismissed.
It was reasonably clear from the decision letter that the inspector was saying that there were no planning means, whether by imposing a condition or otherwise, of ensuring that all deliveries would be made via the car park. The fact that a condition would be enforceable against subsequent occupiers did not, as the inspector had appreciated, overcome the practical difficulty of ensuring that the desired means of access would always be used by drivers of delivery vehicles.
John Barrett (instructed by Slater Heelis, of Manchester) appeared for the appellant; David Elvin (instructed by the Treasury Solicitor) appeared for the first respondent, the Secretary of State for the Environment: the second respondents, Trafford Metropolitan Borough Council, did not appear and were not represented.
