Town and Country Planning Act 1971 — Application to quash decision of Secretary of State dismissing appeal against refusal of planning authority to grant permission for change of use of a cinema to a bingo social club — Fate of last cinema in Chichester — Decline in cinema attendances, although a significant upturn in 1978 — Owing to unprofitability of cinema use owners wished to change to a ‘top-class social club premises based on cash bingo’ — Local public pressure for cinema use to be continued, the nearest other cinema being at Bognor Regis — Relevance of desirability of preserving existing use when there was no possibility of a refusal of permission resulting in a continuation of that use in its present form — Secretary of State accepted that continuation of use of whole building as a cinema was not commercially viable, but was not satisfied that the applicants had exhausted the possibilities of retaining a cinema facility in the building combined with some other use — Applying the principles stated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation, the judge held that the Secretary of State had not taken into account matters which he should not have taken into account, or the converse, and that he had not come to a conclusion at which no reasonable authority could have arrived — Application to quash accordingly dismissed
This was an
application by Granada Theatres Ltd to quash a decision of the Secretary of
State for the Environment whereby he dismissed the applicants’ appeal against
the refusal of Chichester District Council to grant planning permission for the
change of use of the Granada Theatre, East Street, Chichester, from a cinema to
a bingo social club.
M S Rich QC
and J F Mummery (instructed by Turner, Peacock) appeared on behalf of the
applicants; Simon Brown (instructed by the Treasury Solicitor) appeared on
behalf of the first respondent, the Secretary of State; the second respondents,
Chichester District Council, were not represented and took no part in the
proceedings.
Giving
judgment, FORBES J said: In this case Mr Rich moves to quash a decision of the
Secretary of State dated November 30 1979 whereby he dismissed an appeal by the
applicants against a refusal of the Chichester District Council to grant planning
permission for change of use of the Granada Theatre, East Street, Chichester,
from a cinema to a bingo social club. Although at the start of the argument
this appeared to be a matter of some complexity, it has now been resolved
through the efficiency of counsel into what is really a very short point.
It is
necessary nevertheless to set the scene. The applicants, a well-known concern,
own the Granada Theatre in East Street, Chichester. The building was erected in
1832 as a Corn Exchange. It is a two-storey building and it fronts on to East
Street, Chichester. I take its description from the inspector’s report.
The stepped
front entrance from East Street with two pairs of doors is set back 17 to 20 ft
from the carriageway and the wide footpath is spanned by an entablature
supported by six Doric columns close to the kerb. The premises are used as the
Granada Cinema with 820 seats in an auditorium of some 4,600 sq ft and a
balcony of 820 sq ft. It is a Grade II starred listing building.
Now
cinema-going has declined in the last year or so, and the Granada, Chichester,
is now the second most unprofitable cinema in the Granada group. I take the
further facts again from the inspector’s findings of fact.
The
appellants [that is the present applicants] decided in early 1977 to convert
the enterprise to a bingo social club. Gaming Board consent was obtained in
January 1978 and a bingo licence in May 1978. The popularity of cinema-going
has declined enormously in the last 30 years, but there was a significant increase
in 1978. Twenty-six Granada cinemas were closed in the last 10 years; two other
cinemas in Chichester were closed by the end of 1960. Admissions to the Granada
cinema were approximately halved between 1965 and 1976 since when they have
improved considerably due to increased performances and attractive films. In
1976 admissions were equivalent to five visits by each person in Chichester.
Pausing there,
that is a mathematical computation, the validity of which I am not certain
about, but the facts were that there were just over 100,000 admissions and the
population of Chichester was 20,000 persons. The finding goes on:
For the last
four years under 20 per cent of the seats have been filled on average. The
possibilities of better attendances are limited. Operating costs of the cinema
have increased greatly and profitability is critically low. Admissions might
need to double for the cinema to pay its way. The appellant intends to operate
a top-class social club premises based on cash bingo.
The applicants
applied for planning permission for this change of use and were refused by the
local planning authority. They appealed and a public inquiry was held on
February 6 and 7 1979. The inspector’s report is dated February 23 1979 and the
Secretary of State’s decision letter November 30 1979. One of the points raised
by the applicants at the inquiry was the question of the desirability of
preserving the existing use. As I understand what was their argument there, as
it is Mr Rich’s argument now, it was that the desirability of preserving the
existing use is not a material consideration in a planning application such as
this where, it is said, there is no possibility that refusal of planning
permission would result in continuance of the existing use. The authority for this
proposition is said to be the case of Clyde & Co v Secretary of
State for the Environment [1977] 1 WLR 926. It was argued at the inquiry
that there was no such possibility and that therefore any question of
preserving the existing use was immaterial. The inspector recorded this as a
question of legal interpretation. He put it in this way in his findings of
fact: ‘Legal representations have been made as to whether the desirability of
preserving the possibility of an existing use would be material.’ In these circumstances his conclusions
proceeded on alternative hypotheses as did his recommendations.
I shall read
those.
74. It is for
the Secretary of State to consider whether the desirability of retaining the
existing use of the appeal premises as a cinema is material or not (paragraphs
25 and 50 referred). In the former case the remarkable volume of public protest
against loss of the cinema mainly voiced through a petition organised and
heavily supported by young people, the wide appeal of cinema to all kinds of
people and the comparative lack of other easily accessible forms of public
entertainment in the area combine to suggest that it is very desirable to
retain the existing use for social reasons. The poor profitability of the
cinema in recent years implies that it may be too large as at present
organised, and although the appellant now sees commercial advantage only in
converting the premises to a bingo social club at considerable expense, it may
be that the discernible increase in popularity of cinema going or further
examination of alternative ways of using the building could result in the
retention of a viable cinema facility. In these circumstances it would be wrong
to allow the appeal and so lose the existing use. 75. If, on the other hand,
the desirability of retaining the existing use were not material, the situation
is quite different. Preservation of the special quality of the premises
themselves as a listed building and of their historic surrounds in an
outstanding conservation area must be a matter of the greatest importance, but
there is no conclusive evidence that they would be materially harmed by the
proposed change of use providing that advertising on the outside of the
building were to be restricted as proposed by the appellant. Changed circumstances
could lead to attempts to introduce more eye-catching advertising of a kind
associated elsewhere with bingo clubs which could lead to most undesirable loss
of visual amenity, perhaps for a considerable time until control could be
re-established. But if planning permission were made personal to the appellant,
as invited, the danger of unacceptable harm to the amenity and character of the
area could not be so conclusive by itself to justify dismissal of the appeal.
And his
recommendations in 76:
Depending
upon what decision is taken upon the legal point at issue, I recommend either
that the appeal be dismissed or that it be allowed subject to a condition that
the permitted use of the premises as a bingo social club should inure only for
the benefit of Granada Theatres Ltd and not for the benefit of the land.
The Secretary
of State’s decision letter sets out those conclusions and refers to the
inspector’s recommendations and continues, so far as is material, in paragraphs
5 and 6 which again I think I should read.
5. The
inspector put forward alternative conclusions and recommendations depending on
whether or not the Secretary of State took the view that the desirability of
retaining the existing use of the appeal premises as a cinema is material to
the decision on the appeal. The Secretary of State has examined the legal
submissions which have been made on this issue. He does not regard as material
the alleged demerits such as they may be (he holds no view on the point) of
bingo as an activity, and he has not been influenced by unfavourable comments
made about it in connection with the appeal. He does, however, consider that
public demand for the retention of a cinema facility in Chichester on the one
hand and for the introduction of commercial bingo on the other as well as the
availability of alternative suitable premises and ways and means of providing
these facilities are all material considerations in relation to the present
appeal. 6. He notes that the appeal building is the last cinema in Chichester,
that the next nearest is in Bognor 6 miles away, and that petitions and
correspondence received show there to be massive public pressure for the appeal
building to continue as a cinema and point to its being much valued as a social
amenity catering for all age groups including the young. He accepts that
notwithstanding this expression of public opinion in relation to the present
appeal, the appellants face difficulties in running the cinema as it stands,
but they have already given some thought to the possibility of finding an
alternative use which would still incorporate a cinema element, and that the
proposed change of use to bingo is likely to be much more profitable than the
present use. However, it may well be that a cinema and bingo operation or a
multi-unit cinema are not the only possibilities and, despite the appellant’s
declared intention of closing the present cinema soon, the Secretary of State
cannot rule out the hope that as the inspector suggested an increased interest
in the cinema or further examination of alternative ways of using the building
could yet result in the retention of a viable cinema facility.
Mr Rich’s
first argument is, as already stated, that the desirability of preserving the
existing use is not a material consideration where there is no possibility that
refusal of planning permission would result in the continuation of the existing
use. He says that the inspector in paragraph 74 misunderstood this argument and
thought it was an argument simply that the desirability of retaining existing
use was not material, that he therefore asked himself the wrong question and
never considered whether it was possible or not that refusal of planning
permission would result in such retention. I do not think that the inspector so
misdirected himself. Both in his recording of the appellant’s argument at
paragraph 25 of his report and in his finding of fact which I have already read
he refers to the desirability of preserving the possibility of an existing use.
It is true that in the first sentence of paragraph 74 he omits the words ‘the
possibility’, but this I apprehend is mere shorthand for a concept he has
correctly recorded elsewhere. The tenor of the rest of that paragraph and the
use of the expression ‘it may be’ at the end of it clearly show that it was the
possibility that he had in mind.
The case of Clyde
& Co v Secretary of State for the Environment, to which I have
already referred, has been relied on by both counsel. I confess that I was
surprised that it should have been necessary for there to be an authority for
the proposition that in a change of use case the desirability of preserving the
existing use was a material consideration, because it seemed to be so
self-evident a proposition. Properly looked at, however, I think that at first
instance Willis J was really dealing with a different argument, as it seems the
case was being put on the basis that the Secretary of State was trying, by an
improper use of planning powers, to force an owner to retain an existing use
against his will. Sir David Cairns in the Court of Appeal was indicating that
there was no doubt that the desirability of preserving the existing use was a
material consideration, and that in the case before him there was ample
evidence that refusal of planning permission might well result in such
retention. Read in this way there is nothing in the Clyde & Co case
to suggest that I am going too far in considering that the desirability of
preserving the existing use must always be a material consideration when
deciding whether to grant planning permission for a change of use. Of course
there
beyond a certain point. If all the parties agree that the continuation of an
existing use is undesirable, one need not consider the question of desirability
further. It is a concluded question. It is nevertheless a material question, but
one which has been easily answered. If both parties agree that though desirable
it is impossible to preserve the existing use, again it is a concluded
question. But wherever there is a dispute between the parties as to whether an
existing use should be retained or not, it seems to me inevitable that the
desirability of retaining it is a material question. That is why I prefer to
see Mr Rich’s main proposition (and it is Mr Brown’s main proposition also)
restated in this way: the desirability of retaining an existing use is always a
material consideration where planning permission is sought to change it; there
may, however, be facts which make it unnecessary to consider it, as where there
is no possibility that refusal of planning permission will result in its
retention. Looked at in this way the sole relevant issue which the Secretary of
State had to decide was whether there was a possibility, a reasonable
possibility perhaps, that the existing use would be preserved if planning
permission were refused. And the sole issue which I have to decide is whether
in answering that question it was reasonable, in the context of Associated
Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB
223, for the Secretary of State to come to the conclusion on the evidence
before him, that for either of the reasons he advanced there was a reasonable
possibility that a cinema facility might be retained. Mr Rich says no, there
was no material before him on which he could reasonably have come to that
conclusion, and Mr Brown says yes, there was.
It is perhaps
useful to summarise what, as I understand it, the Secretary of State’s letter
was saying before dealing with the possibility of retaining the cinema use. It
seems clear to me that he was saying that for the purposes of this decision he
accepted the appellants’ contention that the use of the whole building as a
single cinema was not commercially viable and therefore not likely to continue.
He also accepted that the applicants had investigated two other methods of preserving
the cinema use; one was combining the cinema with bingo and the other was
turning the building into a multi-unit cinema; and that they had properly
concluded that those alternatives were unworkable. The vital sentence then
follows:
However, it
may well be that a cinema and bingo operation or a multi-unit cinema are not
the only possibilities, and despite the appellant’s declared intention of
closing the present cinema soon, the Secretary of State cannot rule out the
hope that as the inspector suggested an increased interest in the cinema or
further examination of alternative ways of using the building could yet result
in the retention of a viable cinema facility.
The question
then as I indicated earlier is simply: could the Secretary of State reasonably
have come to that conclusion on such material as he had? What material did he have? As to the first possibility, an increased
interest in the cinema, he had the inspector’s findings of fact in the body of
his report, and I refer to G and H. I have read them already but I shall refer
to them again.
The appellant
decided in early 1977 to convert the enterprise to a bingo social club. The
popularity of cinema going has declined enormously in the last 30 years but
there was a significant increase in 1978.
In other
words, the applicants’ decision to abandon the cinema preceded the upturn in
the popularity of cinema-going. As to the second possibility the evidence
appears to have been this. The applicants had investigated the two
possibilities already mentioned. One of their witnesses had conceded that the
building could be put to other uses than a bingo social club (that is paragraph
49 of the report). He had apparently also conceded that they were considering
offers from firms wanting to use it for other purposes, even punk rock (that is
paragraph 66E). On this the inspector had found as a fact that the possibility
of other uses exist that have not been fully explored. Some uses have
disadvantages (that is finding of fact T). There appears to be no particular
evidence that any of the possible uses which had not been fully explored
included dual or multiple use which would feature a cinema facility. As the
Secretary of State had accepted that use as a single cinema was not a viable
possibility, it follows that to be in any way material to the question of
retaining the existing use, any possible use would both have to include a
cinema and be a dual or multiple use. There was thus no direct evidence before
the inspector or the Secretary of State that there existed any alternative
viable and relevant use.
That being the
state of the evidence, was it reasonable for the Secretary of State to come to
the conclusion that there was still a possibility that the existing use might
be retained. He expressed this as a hope, but it is clear that it was the
possibility that he was considering. Now in considering whether the Secretary
of State has acted reasonably in this way it is important not to fall into the
trap of equating the reasonableness of his decision with the reasonableness of
that well-known common law figure the man on the Clapham omnibus. The test is
not whether the Secretary of State has acted reasonably in that sense at all.
And perhaps it is well to remind oneself of the ipsissima verba of Lord
Greene MR in the Wednesbury case. It is Associated Provincial Picture
Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. The passage I
have in mind is in the judgment of Lord Greene at p 233:
The court is
entitled to investigate the action of the local authority with a view to seeing
whether they have taken into account matters which they ought not to take into
account, or, conversely, have refused to take into account or neglected to take
into account matters which they ought to take into account. Once that question is
answered in favour of the local authority, it may be still possible to say
that, although the local authority have kept within the four corners of the
matters which they ought to consider, they have nevertheless come to a
conclusion so unreasonable that no reasonable authority could ever have come to
it. In such a case, again, I think the court can interfere.
A further
explanation of this kind of reasonableness is to be found in a passage from the
judgment of Diplock LJ, as he then was, in the case of Mixnam’s Properties
Ltd v Chertsey Urban District Council [1964] 1 QB 214 CA at p 237.
It is very short.
Thus, he says,
and he is, of course, dealing with byelaws:
the kind of
unreasonableness which invalidates a bye-law is not the antonym of
‘reasonableness’ in the sense in which that expression is used in the common
law, but such manifest arbitrariness, injustice or partiality that a court
would say: ‘Parliament never intended to give authority to make such rules;
they are unreasonable and ultra vires’.
It seems to me
that one can paraphrase what the Secretary of State is saying in his decision
letter like this: ‘I consider that it is important to retain the existing use
as a cinema. I know that you decided it was wholly unprofitable to continue,
but that was before the upturn in cinema attendance. I am not satisfied that
that was a valid decision and you should look at it again. Similarly I know
that you have explored two possible multi-uses each involving the retention of
a cinema facility. But there are other uses which you have not explored, and I
am not satisfied that you have exhausted the possibilities. In those
circumstances I find myself unconvinced that the retention of the existing use
is out of the question’. There are only two reasons for a court to overturn a
decision based on such a chain of reasoning: that the Secretary of State took
into account matters which ought not to have been taken into account or the
converse on the one hand, and unreasonableness on the other. The only matter
which Mr Rich urges as something which the Secretary of State should not have
taken into account is the possibility of retaining the existing use, because he
says there was realistically no such possibility. But this question is itself
entirely dependent on the other question: could the Secretary of State
reasonably, as defined in Wednesbury, have come to the conclusion that there
was a realistic possibility that the use might be retained? There is therefore only one question: did the
Secretary of State act reasonably? I
find myself quite unable to say that the conclusion to which the Secretary of
State came on the material before him was so unreasonable that no reasonable
authority could ever have come to it.
On that basis
it seems to me that this appeal must fail.
The
application was dismissed with costs.
