Town and Country Planning Act 1971–Appeal against enforcement notice–Appellants required to close down hot food takeaway shop after complaints of smell, noise etc–Expert evidence called at inquiry before inspector to show that nuisance could be alleviated–Inspector decided against appellants–Submission that inspector was bound to accept opinion of appellants’ experts in the absence of contrary evidence–Inspector held entitled to use his commonsense and not bound to accept experts’ evidence
This was an
appeal by Kentucky Fried Chicken (GB) Ltd under section 246 of the Town and
Country Planning Act 1971 against the decision of an inspector dismissing their
appeal against an enforcement notice served by Lambeth Borough Council as
planning authority. The Council was the second respondent to the present appeal
to the Divisional Court. The first respondent, the Secretary of State, did not
appear and took no part in the proceedings.
N Wise
(instructed by Reimann & Cummins) appeared on behalf of the appellants; C
Whybrow (instructed by S J G Smith, Director of Administration and Legal
Services, Lambeth) represented the second respondent.
Giving
judgment, LORD WIDGERY C J said: This case comes before the court as a
purported appeal under section 246 of the Town and Country Planning Act 1971 by
the appellants, who are known as Kentucky Fried Chicken (GB) Ltd, against the
decision of an inspector appointed under the Town and Country Planning Acts,
which decision was given on May 6 1976 and referred to premises in part
occupied by the appellants at 36 Brixton Road in South London.
In this
instance, although the matter is in every sense a planning appeal, it has not
taken the more common course of being heard by an inspector at an inquiry, the
inspector making a report and the Secretary of State basing his decision on
that report. This is a case in which the inspector is himself charged by
delegated authority with the duty of reaching a conclusion upon all the facts
which the Secretary of State would normally have to deal with on the more
conventional method of appeal.
The cause of
all the trouble is that on the ground floor at 36 Brixton Road there is a shop
operated by the appellants, which is described as a hot food take-away shop. In
other words, as that description implies, food is cooked in this shop and is
handed over the counter in a hot state to customers who then take it away and
eat it. Not altogether surprisingly, the value of the shop is apparently good
and the customers numerous.
The collection
of people and their activities resulting from the opening of this shop has
given rise to complaints both from the local authority and from the occupiers
of adjacent buildings. The sort of complaints which have been made are that
there is smell of fumes and from the cooking, noise from the pan, noise from
people who come as customers, and noise from people who slam doors in the early
hours of the morning and foul the area with waste paper and other things.
On discovering
that this change of use had been made the planning authority served a notice in
brief complaining of the development occasioned by the opening of this shop and
requiring it to be shut down. In answer to that enforcement notice, the appellants
(as they were perfectly entitled to do) have brought this appeal, and it has
come to us, as I have indicated, from the inspector who conducted the inquiry
and who reached a conclusion.
The gist of
what happened before the inspector is this. The appellants called a quantity of
expert evidence, no doubt of very high quality, containing recommendations as
to what should be done to alleviate the nuisance created by the activities of
this shop to which I have referred. References were made to British Standards
and so on in demonstration of the adequacy of the proposed remedial measures,
and I am prepared to approach this case on the basis that the appellants made
out a strong case for saying that they could alleviate some, if not all, of the
nuisance which had been proved to exist.
The council
thought differently, and so did one or two of the adjoining occupiers, and the
inspector’s conclusions come to this. He said:
On the
evidence and from my own observations I am satisfied that fumes and smells from
cooking in the appeal premises penetrate to the residential accommodation above
and that this is seriously damaging to the amenities that the occupants of that
residential accommodation can reasonably expect to enjoy. Although it has been
stated on behalf of the appellants that improvements can be made which would
substantially reduce the smell and fumes, in my view this would not entirely
eliminate or reduce to a satisfactory degree the damage to the amenities now
being caused.
I am also
satisfied that the amenities of the occupants of the residential accommodation
above the premises are being seriously damaged by noise from the air duct and
from the general activities within the premises. By the nature of the building
and the close proximity of the residential accommodation to the seat of the
commercial activities, it does not appear to me that it would be feasible to
reduce the noise levels sufficiently, whatever structural alterations are made,
so as to eliminate this justifiable source of complaint.
Finally, he
says:
While I
accept that the appellants are unable to control the activities of their
customers outside the premises, it seems to me that this shop,
attracts customers who are likely to cause disturbance outside the premises by
slamming of car doors, playing of radios and other activities. Such noise, in
my opinion, is likely to be more disturbing to the amenities of residents than
the fairly constant traffic noise to which they are accustomed. Moreover, I do
not accept the argument that the emanation of additional noise is permissible
because of the already high level of noise in the area; and I am not convinced
that it would be practicable to control the activities outside the premises by
the imposition of conditions on a planning consent.
At that point
the court was prompted to ask counsel appearing for the appellants where the
point of law was, because section 246 authorises an appeal to this court on a
point of law, and so far we have only considered the merits. The answer given
by counsel was, in substance, if he will forgive me for paraphrasing it, that
the appellants having called high-level experts who had expressed opinions
about this, the inspector, without any evidence to contradict those opinions,
was bound to accept them.
That just is a
complete and total fallacy. The inspector (who is a man of experience, and,
above all, specialised qualifications, who is sent to assess a problem of this
kind) is supposed to use his own knowledge and, if I may say so, commonsense as
well. He is intended to use his commonsense and he is not bound to accept the
evidence of experts. It is exactly the same situation that justices and juries
find themselves in when experts of great distinction go into the witness box
before them. The inspector is no more bound to accept the evidence of the
experts than are they.
Accordingly,
the plea that there was no evidence to support the conclusions of the inspector
is a plea which is totally inapt for the circumstances. He was entitled to
reach his own conclusion and unless it could be shown that he had taken into
account something which he should have ignored, or ignored something which he
should have taken into account, his decision must stand.
I would
dismiss the appeal.
O’CONNOR and
WATKINS JJ agreed and the appeal was dismissed with costs.
