Town and Country Planning Act 1971 — Application to quash inspector’s decision on appeal under section 36 of the Act — Complaint was against conditions imposed by inspector on planning permission for use of premises as a gaming club and casino — Appellants, having themselves been refused a gaming licence, proposed to lease accommodation to a person who was likely to be granted one — Conditions as to parking of vehicles were conceded to be invalid — A condition prohibiting the use on Sundays held by the judge to be unsupported by evidence of probable disturbance to local residents — ‘Wednesbury’ principle applied — Inspector’s decision quashed
This was an
application by Ladbroke (Rentals) Ltd to quash a decision of an inspector
appointed to consider an appeal by the appellants under section 36 of the Town
and Country Planning Act 1971 from a refusal of planning permission by the
second respondents, the Royal Borough of Kensington and Chelsea. The inspector
appointed by the first respondent, the Secretary of State, decided to grant
permission for the use in question, which was of part of the ground floor of
the Park Tower Hotel, Knightsbridge, as a gaming club-casino, but subject to
certain conditions. The complaint which was the reason for the present
application was against the conditions.
R Sears QC and
T Straker (instructed by Norton, Rose, Botterell & Roche) appeared on
behalf of the applicants; Alan Cooper (instructed by the Treasury Solicitor)
represented the first respondent; the second respondents, the planning
authority, were not represented and took no part in the proceedings.
Giving
judgment, SIR DOUGLAS FRANK said: This is an application to quash a decision by
an inspector appointed by the first respondent to determine an appeal by the
appellants made under section 36 of the Town and Country Planning Act 1971.
The
application was for the continued use of part of the ground floor of the Park
Tower Hotel, Knightsbridge, as a gaming club-casino, for which planning
permission had been granted for a limited period expiring on September 30 1979.
The second respondents refused permission for a further limited period on the
grounds that ‘the proposed use is considered undesirable, and has in the past
proved detrimental to the amenities enjoyed by the residents at the rear of the
premises, by virtue of increased noise and added congestion’.
The appellants
have been refused a renewal of the licence granted to them under the Gaming Act
1968. Accordingly their intention is to lease the casino part of the premises,
which are not now in use, to a person to whom such a licence has been or will
be granted. I may say in passing that it was alleged that the inspector and the
second respondents had been influenced by the adverse publicity connected with
the court proceedings, but in my opinion that allegation is without foundation.
The inspector
held a public inquiry into the appeal and on November 14 notified his decision
to grant permission. However, the permission was granted subject to the
following conditions:
1. So far as
is reasonably practicable all vehicles attracted to the premises including
vehicles of staff and others shall be parked within the car park of the Park
Tower Hotel and a sufficient number of spaces shall be reserved at all times
for this purpose.
2. Within 3
months of the date of this letter a scheme of operation to enable the above
condition to be implemented shall be submitted to the local planning authority
for approval. The use hereby permitted shall not commence until the scheme has
been approved by the local planning authority, or if no agreement can be
reached with the local planning authority, the method of operation has been determined
by the Secretary of State.
3. The use
hereby permitted shall be discontinued on or before a date not later than 4
years after final approval or determination of the scheme required by the above
conditions at which all materials, goods and equipment associated with the use
shall be removed from the site.
4. The use
hereby permitted shall not operate between the hours of 2 am and 2 pm on
weekdays or between the hours of midnight on Saturdays and 2 pm on Mondays.
5. The shop
windows along the Knightsbridge frontage to the premises shall be retained and
shall be available for display purposes at all times during the period of this
permission.
The
appellants’ complaint in this court is that the inspector erred in imposing
conditions nos 1, 2 and 4. I may say that counsel for the Secretary of State
conceded that as the car park referred to in condition 1 is not under the
control of the applicants that condition is invalid and it follows that
condition 2 is also invalid. On those grounds alone the decision must be
quashed.
I turn to the
grounds upon which condition 4 is attacked. First, it is said that the
inspector did not give proper, adequate or intelligible reasons for the
imposition of the condition. It seems to me that, whatever else may be said
about the decision letter, it is clear that what the inspector was purporting
to do was to protect the local residents from disturbance caused by the
attraction of additional traffic into Lowndes Square nearby. That seems to me
to be a proper, adequate and intelligible reason for the imposition of the
condition. The second ground of attack gives me more cause for concern: It is
said, citing Hilliard v Secretary of State for the Environment
[1978] JPL 840, that there was no evidence on which the inspector could conclude
that the imposition of the condition was necessary to protect the surrounding
residents. I am bound to say that it would have been helpful if, in this case
as indeed I think in all cases, the inspector had set out in clear terms his
findings of fact and if he had clearly distinguished between evidence and
argument. I find great difficulty in discerning whether the inspector concluded
that there had been any disturbance by noise in the past or whether there would
be some disturbance in the future and, if so, on what evidence he relied for
that conclusion. The witnesses called by the second respondents gave no direct
evidence of the effect of the use of the casino. They seem to have relied
exclusively on two letters, one of which is expressed in general terms and does
not deal directly with the question of noise by traffic and the other does not
directly connect the complaints expressed with the use of the casino. There was
no oral evidence giving direct evidence on this question except by G Adrian Eve,
the senior partner in a well known and highly respected firm of chartered
surveyors. He conducted a survey for four nights when the casino was in use and
found that the traffic generated by the casino in relation to the traffic as a
whole was minimal. The inspector in his report said:
The evidence
of noise and disturbance was mainly contained in letters from nearby residents
and to some extent was circumstantial but nevertheless there would seem to be a
case to answer. Your clients’ evidence on this point was more direct but the
survey was taken over a limited period and the incidents causing disturbance
were probably more isolated rather than occurring on a regular basis.
I assume that
when the inspector referred to evidence as being circumstantial, what he really
meant to say was that it was hearsay. In fact there was no evidence, not even
hearsay evidence, which could be taken as showing that the casino was
responsible for any disturbance. On the other hand, I can find nothing which
justifies the inspector in doubting the results of Mr Eve’s survey. In any
event, I do not understand why, if it is permissible to allow the casino to
operate up to 2 am on weekdays, it should not be so on Sundays, as there was
certainly no evidence whatsoever enabling the inspector to draw a distinction
between weekdays and Sundays. Although the inspector’s reason is clear his
reasoning is obscure and devoid of any evidential content. In my judgment there
was no evidence on which the inspector could reasonably have come to the conclusion
that the use of the casino was likely to cause such disturbance as to justify
the imposition of this condition and accordingly, applying the judgment of Lord
Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury
Corporation [1948] 1 KB 223 and the judgment of Shaw LJ in the Hilliard
case, the decision must be quashed.
It was also
argued by Mr Sears that, having regard to the power in paragraph 24 of Schedule
2 to the Gaming Act 1968 vested in the licensing authority, for the express
purpose of preventing disturbance or annoyance to other occupiers in the
vicinity, to impose restrictions on the hours during which gaming will be
permitted, the Secretary of State and therefore his appointed person were
deprived of exercising a similar power. I have no doubt that as a matter of
sensible administration that would be right, but I do not think that the court
is entitled to imply that, because the licensing authority is given this
express power, the very wide powers given to the Secretary of State under the
Town and Country Planning Act are thereby diminished. Accordingly I would not
hold that the inspector had acted in excess of his powers on this ground.
In view of the
foregoing, the decision is quashed and remitted for redetermination.
The decision
was quashed with costs against the Secretary of State.