Town and Country Planning Act 1971 — Application by planning authority under section 245 of Act to quash a decision of the Secretary of State, made on his behalf by an inspector, allowing an appeal by a company wishing to establish an amusement or entertainment centre — Proposed centre was to be located in St Ives, in an outstanding conservation area — Inspector in his decision letter said that the application site was within the shopping centre of St Ives in a predominantly seasonal trading zone with premises related to the tourist industry which were often closed outside the holiday season — He envisaged some problems, such as noise and the determination of opening hours, but he thought that these could be dealt with by conditions, and he considered that there was a shortage of entertainment facilities in the area which the proposed centre would help to supply — The inspector’s letter was criticised by the appellant planning authority on the grounds that it gave no reasons for departing from Department of the Environment guidance on amusement centres and that it relied on the effect of planning conditions which were in fact valueless — The departmental guidance stated that ‘amusement centres are not acceptable near residential property; nor are they good neighbours for schools, churches, hospitals or hotels. They are out of place in conservation areas or other places of special architectural or historic character, except perhaps where these cover a really wide area’ — Held that the decision letter did not indicate whether the inspector had taken this departmental guidance into account or, if he did, why he thought it right to depart from it — Held also that the bare reference to the need for conditions as to such matters as noise and opening hours was unsatisfactory — As regards opening hours, for example, no assistance was given of a practical kind for enforcement action — Decision quashed and case remitted to the Secretary of State for reconsideration.
This was an
application by Penwith District Council under section 245 of the 1971 Act to
quash the decision of the Secretary of State for the Environment allowing an
appeal from the council’s decision refusing permission to Mainstreet Marketing
Ltd to establish an amusement or entertainment centre in St Ives, Cornwall.
J Steel
(instructed by Sharpe Pritchard & Co, agents for L Rowland, of Penzance)
appeared on behalf of the applicant planning authority; J Holdsworth
(instructed by the Treasury Solicitor) represented the first respondent, the
Secretary of State for the Environment; the second respondents, Mainstreet
Marketing Ltd, were not represented and took no part in the proceedings.
Giving
judgment, WOOLF J said: This is an application under section 245 of the Town
and Country Planning Act. It is an application by the Penwith District Council
in respect of a decision by the Secretary of State for the Environment, made on
his behalf by an inspector, to allow an appeal of Mainstreet Marketing Ltd, who
wish to establish an amusement or entertainment centre in St Ives.
The area with
which I am concerned is an outstanding conservation area. The fact that it is
an outstanding conservation area means that more funds are available for its
improvement than is ordinarily the case in a conservation area. The application
was dealt with by written submissions. Obviously it was a matter of concern to
the local planning authority that nothing should be allowed to take place in
the conservation area which would be inconsistent with the policies which were
applicable to it. Therefore, if the inspector was minded to depart from any
policies which applied to the conservation area, it was a situation in which
the planning authority were entitled to have clear and intelligible reasons explaining
why, in the circumstances of this planning decision, it was appropriate to
depart from them.
The planning
authority have got the task of ensuring that the treatment of planning
applications in general is approached in a fair and reasonable manner. If the
Secretary of State is going to make decisions without adequate reasons which
depart from what has been laid down as the general policy for the area, the
planning authority are not going to be in a position to perform their function
properly. They need the appropriate assistance from the Secretary of State.
The decision
letter in this case, dealing with the written representations made by the
parties, is admirably succinct. It sets out, as one would expect, a description
of the area. It describes the application site as being within the shopping
centre of St Ives. It specifies that it is in the St Ives Outstanding
Conservation Area. It goes on to say that it is within Area 2. Under a
non-statutory policy document, Area 2 is a predominantly seasonal trading zone,
with premises related to the tourist industry, which often close outside the
holiday season.
Apparently,
there was a certain blurring of the area, to which the inspector has referred.
There were submissions that the area has been modified. However, what the
inspector says in his letter is that he is not greatly swayed by the council’s
attitude that this part of Area 2 should now be regarded as part of the
established shopping centre which provides mainly ‘resident’ services. In other
words, the inspector is indicating that he still regards it as an area which is
providing premises for the tourist industry.
The inspector
then goes on to say that having inspected the site, he has come to the
conclusion that the main issues are:
1. Whether
the proposed use would be damaging to the character and appearance of the
conservation area? 2. Whether the
proposal would be in keeping with the seasonal trading nature of Area 2 in the
town centre, and would not harm its commercial vitality?
The inspector,
in his decision letter, goes on to explain that the St Ives Conservation Area
arises out of the narrow road width, the cobbled surface and the enclosed and
intimate feel given by the two-and three-storey buildings lining the street. He
deals adequately with the fact that so far as external appearance is concerned,
there is nothing to be feared by the proposal. He then goes on to deal with the
effect of the proposal on the trading and shopping character of the street.
Again, he finds that there is nothing adverse in that.
The inspector
says that it appears to him that members of the public would be drawn to the
entertainment centre in a similar way to those window shopping or visiting
other outlets. He decided that the nature of the use is not one which would
give rise to crowds congregating at particular times while leaving no activity
at other times. He does recognise that there could be inappropriate noise, but
he feels that that could be dealt with by conditions.
Later, having
dealt with other matters, he goes on to say that he thinks there is a shortage
of entertainment facilities in the area and he is of the view that the proposal
would be in keeping with the mixed function of shopping centre and holiday
resort of this part of St Ives and that, subject to conditions, planning
permission cannot reasonably be withheld. So far as opening hours are
concerned, the inspector is of the view that that could give rise to problems
but it could be dealt with by appropriate conditions.
In the course
of dealing with the various submissions, the inspector refers specifically to
the fact that he has borne in mind the various provisions of the development
plan, including policy 10A of the structure plan, and the non-statutory
policies of the St Ives Central Area Commercial Uses Study. The first ground of
complaint arises out of the fact that he makes no mention of the Development
Control Policy Note No 11. That is a development control policy note which
deals specifically with amusement centres. It had been referred to and the relevant
parts are set out in the written submissions of the planning authority. It is a
Department of the Environment and Welsh Office circular and it does not set out
rigid policies. It is intended to give general guidance to intending developers
and, therefore, to planning authorities.
Among the
matters which are dealt with in that note are the ordinary considerations which
affect planning applications for amusement centres. So far as those are
concerned, although there has been no reference to the development control
policy note, I regard the decision letter as dealing quite satisfactorily with
those general considerations. However, the note goes on to say in specific
terms:
As regards
situation, amusement centres are not acceptable near residential property; nor
are they good neighbours for schools, churches, hospitals or hotels. They are
out of place in conservation areas or other places of special architectural or
historic character, except perhaps where these cover a really wide area.
Although this
must not be regarded as a rigid rule, here was the clearest guidance being
given by the Secretary of State, indicating what should be the general and
ordinary approach to amusement centres in areas, of which this is one, which
are near residential property and hotels and which are conservation areas.
Having regard to the fact that the inspector specifically referred to other
policy documents, but made no reference to Policy Note No 11, which clearly
should have had a considerable impact upon his decision, the planning authority
say, first of all, that it looks as if the inspector failed to recall the
importance of that note when coming to his decision. Alternatively, the
planning authority submit that if he did have regard to the proposed
requirements of the policy note, to which I have just made reference, then he
gives no explanation or reasons as to why, in this case, he thought it right to
depart from the general prohibition which is provided in the guidance. They say
that without any explanation from the inspector as to why he thought it right
to depart from that general prohibition, they cannot understand the basis of
his decision and have been given no proper and intelligible reasons for it.
I am bound to
say that I consider that there is great force in Mr Steel’s submission.
Notwithstanding Mr Holdsworth’s assistance in the matter, it is my view that
the inspector should, if indeed he did take the circular into account, have
indicated why it was that he felt that this was a case in which he should
depart from the general prohibition.
Looking at the
decision, it seems to me that his general approach was one which would have
been appropriate if this had not been a conservation area. On that ground
alone, it seems to me that this is a matter where the applicants are entitled
to say to this court that this decision is not an adequate decision and does
not comply with the requirements of the Act. Therefore, they are entitled to
have the decision quashed and remitted to the Secretary of State for
reconsideration by him.
A second point
is taken by Mr Steel on behalf of the planning authority. As I indicated when
going through the reasoning of the inspector, he attached considerable
importance to the fact that certain of the objections to the scheme could be
overcome by the provision of conditions. The relevant condition that he
proposes is in these terms:
Before the
development hereby permitted is commenced a scheme shall be agreed with the
Local Planning Authority to cover the following points:
A. Noise
insulation. B. Shopfront type. C. Opening hours.
The condition,
however, does not go on to say anything about the fact that the development
should then be carried out in accordance with the scheme and that the amusement
centre should be operated in accordance with the scheme. Mr Steel submits that
a condition of this sort is valueless. It may be — and I do not propose to
express a final conclusion on this — that with regard to noise insulation and
shopfront type, it is implicit in the decision that the development should be
carried out in accordance with the scheme and that the condition must be read
in those terms. However, with regard to opening hours, that is not a practical
approach. It would be of the greatest importance to the planning authority to
be able to police the operation of this amusement arcade. That could require
the service of an enforcement notice. An enforcement notice has to specify the
breach of the condition which is relied upon. It is difficult to see how
enforcement action can take place based on the condition proposed by the
inspector. That is so, no matter what one seeks to read, by implication, into
the condition, but in argument it is very undesirable that a condition, which
may have to be enforced, should depend upon something being read into it. That
will undoubtedly lead to arguments and problems when the matter comes before
the magistrates. A planning authority are entitled to expect that a decision
which complies with the requirements of the Act will provide conditions which
are reasonably practical to enforce.
I have come to
the conclusion that this condition does not comply with that standard. On that
ground, too, I would regard this application as being one which is entitled to
succeed. Accordingly, I quash this decision for the reasons given.
Costs were
awarded against the Secretary of State.