MR. JUSTICE LLOYD JONES :
- This is an application by Mrs. Ondine Francis under section 288, Town and Country Planning Act 1990 (“the 1990 Act”) for an order quashing the decision of an Inspector appointed by the First Defendant dated 15th December 2005 dismissing her two appeals against a refusal of planning permission by the Second Defendant (“the Council”) under section 73 of the 1990 Act.
- The appeals relate to a condition attached to planning permission for the use of premises located at 76 Royal Hill,
- Planning permission (Ref 87/0753P) for the use of the premises as a tearoom and coffee shop was granted on 1st October 1987, subject to five conditions. All of the conditions were subsequently removed or discharged with the exception of condition 3 which stated:
“No cooking shall be carried out on the premises at any time without the prior approval of the Council”.
The reason given for condition 3 was that it was in the interests of the amenities of the neighbouring properties.
- On 13th February 2004 the Claimant applied for planning permission for the erection of a single storey extension at the rear of the premises. This was granted on 6th October 2004 subject to conditions, one of which was that the premises should not be used for an A3 use.
- On the 24th May 2004, following the service of an enforcement notice requiring the Claimant to comply with condition 3, she applied to the Second Defendant for the removal of that condition. The Second Defendant refused this application by a decision notice dated 23rd July 2004. The decision notice gave the following reasons for the refusal:
“(1) The removal of the condition prohibiting cooking on the premises is considered to alter the use to an A3 use, which would impact detrimentally on the amenities of neighbouring residents and the locality generally, through an increase in odour, noise, activity, litter and loss of privacy and car movement, contrary to Policies H4, E6, E8 and S21 of the Unitary Development Plan and Policies SH4, E1, E4 and TC29 of the Second Deposit Draft Unitary Development Plan.
(2) The establishment of an A3 use without suitable odour and noise control is considered to impact detrimentally on the amenities of neighbouring residents and the locality generally through an increase in odour, noise and activity, contrary to Policies H4, E6, E8, S21 and Policies SH4, E1, E4 and TC29 of the Second Deposit Draft Unitary Development Plan.
(3) The establishment of a ventilation system to control odours is considered likely to have a deleterious impact on the visual and acoustic amenities on the locality, affecting the amenity of neighbouring residents and the Conservation Area generally, contrary to Policies H4, D4, D8, D18, E6 and E8 of the Unitary Development Plan and Policies D1, D16, SH4, E1 and E4 of the Second Deposit Draft Unitary Development Plan.
(4) The removal of the condition prohibiting cooking on the premises into an A3 use. (sic) The replacement of an A1 use with an A3 use in this location is considered to deleteriously impact on the safeguarding of the neighbourhood shopping parade contrary to Policy S10 of the Unitary Development Plan and Policy TC19 of the Second Deposit Draft Unitary Development Plan.”
- The Claimant appealed under section 78 of the 1990 Act. There were two appeals. Appeal A sought the variation of condition 3 so as to read:
“The preparation of hot and cold food for sale on the premises shall be limited to soup, simple vegetarian based pasta dishes, simple egg, cheese, bean and vegetable based dishes, toasted sandwiches, teacakes, baguettes and croissants. The preparation of hot food shall include the reheating of cold food by microwave oven. The baking of approximately 25 fresh cakes each working week shall also be permitted”.
Appeal B sought the removal of condition 3.
The Inspector’s decision.
The Inspector identified the main issues in the appeals as follows:
(1) The effect of varying or removing the condition on the living conditions of nearby occupiers, in terms of odours and noise and disturbance;
(2) Whether the proposals preserve or enhance the character or appearance of the West Greenwich Conservation Area;
(3) The effect of varying or removing the condition on the vitality and viability of the shopping parade.
The Inspector outlined the applicable planning policies and set out the relevant background.
- He considered that the “main plank” of the Appellant’s case was that the condition in dispute cut across and diminished the planning permission that had been granted which was, in effect, for A3 use. She had submitted that the condition was unnecessary and failed the test set out in Circular 11/95. She had submitted that a more appropriate condition would require the approval and installation of a mechanical extraction system.
- The Inspector considered that while the current use of the premises did not obviously come within class A1, as the sale of hot drinks for consumption on the premises was the primary business carried out rather than any other retail activity, the restriction on cooking on the premises as imposed by condition 3 limited the range of food for sale to what would be more appropriate to an A1 use such as a sandwich shop. However, he considered that the essential point was not that the use fell within either use class, but that food could not be cooked on the premises. In this regard he rejected the submission of the Appellant that the condition in dispute diminished the planning permission that had been granted. He considered the extant planning permission to be clear. The condition was imposed in order to protect adjoining residential occupiers. To my mind the Inspector’s approach was entirely correct. There was a degree of circularity in the Appellant’s argument. The planning permission granted was restricted and defined by the condition. The Inspector correctly identified the issue under consideration on the appeal as whether, having regard to all the circumstances, the condition continued to serve a valid and useful planning purpose.
- The Inspector identified the tests in paragraph 14 of Circular 11/95. He considered that there was a clear distinction between reheating food and cooking food from basic ingredients. He was satisfied that the activity of cooking was quite distinct from heating up and considered that if cooking took place it would easily be detected. He therefore considered the condition reasonable and enforceable. (Paragraph 15).
- The Inspector considered that the proposed amended condition would be ineffective to control smells by limiting the type of food cooked.
- At paragraph 17 he stated:
“I do not doubt that due to the rather basic construction of the floors and walls of this old building and the timber access stairs that pass through the centre of the floor plan, cooking smells may permeate easily to be noticed by the residents of the flat above and those of adjoining properties. The windows of the living areas of 3 dwellings are also in close proximity to the back door of the kitchen and smells are very likely to emanate by this external route. I understand that in warm weather, that door and a small window is kept open for reasons of ventilation and comfort. However, it is also on warm days when residents will desire to open their own windows. The rear area of gardens is restricted by high walls to the east and north (that to the north being at least 3 storeys high) and I consider smells may not easily disperse, depending on weather conditions. I conclude that the activity of cooking in the appeal property as it stands would detract from the living conditions of adjoining residents.”
- He referred to regular complaints since the use commenced. He considered that if a different operator took over the premises cooking would be likely to lead to more objectionable odours. They would be more difficult to control if an A3 use were permitted without an effective ventilation and extraction system. (Paragraph 18) He then continued:
“19. Turning to the ventilation system that has been proposed, planning permission was granted in October 2005 for a rear extension that provides a modern toilet facility and a slightly enlarged customer area. As part of the appeal submission, a ventilation scheme was submitted that has been approved by the Council’s Environmental Health and Building Control Departments, which could be installed as part of the extension and improvement works. It includes a heated intake at the front of the building combined with a grease filter and activated carbon filter at the rear. The appellant suggests that this removes some of the force of the Council’s reasons for refusal. In my view, whilst a filtered extract must lead to some improvement, unless it is combined with a proposal to seal the internal walls and floors, some smells are likely to continue to permeate through by this route. Furthermore, there is no high level extract proposed. The Public Services division of the Council advised that a low level discharge would not be acceptable. In addition, no indication of the likely performance of the filter is given and I consider it is extremely likely that cooking smells will still be perceived by adjacent occupiers, particularly when the filter needs changing; simply due to the close proximity of their windows and living areas to the extract.
20. No attenuation is proposed to deal with noise, the potential nuisance of which is referred to in the third reason for refusal. The scheme includes 3 fans, 2 of which would discharge directly to the outside. Whilst a condition could be imposed requiring the prior approval of the detail design of the ventilation system, the space available is very restricted. It seems likely that the fans would operate for much of the day and the main kitchen extract would be within 2 metres of the window of the adjacent dwelling. I am not satisfied that this scheme, which was designed after the applications had been refused and in knowledge of the reasons, would sufficiently reduce the harm that could be caused to the amenities of the adjoining occupiers in terms of noise from fans.
21. I have considered the possibility that a high level ventilation extract could be installed but whilst such a system could also be subject to approval by the Council by way of a condition, without a firm proposal the visual effect on the Conservation Area and the locally listed building cannot be properly assessed.”
- He concluded in relation to the amenity of neighbours.
“23. I have taken account of the advice received by the appellant from the Council over the years which at times has been confusing, as well as the long period during which cooking has continued during which a loyal customer base has been created. However, that does not affect the planning matter at issue, on which I am satisfied that the condition in dispute is reasonable, necessary and enforceable, and serves a useful planning purpose. As proposed, the applications to remove or vary the condition would conflict with the amenity protection objectives of UDP policies E6, E8 and S21.”
- The Inspector then went on to consider whether the proposals would conflict with the policies intended to protect the character of the Conservation Area. He concluded that they would.
“24. The reasons for refusal suggest that the effect of the proposals on the Conservation Area is limited to the establishment of a ventilation system, which would be likely to have a deleterious impact. At the time of the applications, the appellant suggested that the Council could impose a suitable condition requiring prior approval of an extract system, but no information was provided to show how the scheme could be installed. In my view, the potential impact of ductwork and grilles on the character or appearance of the conservation area and on the appeal property which is locally listed, given the lack of any information, could reasonably be considered to be potentially harmful, particularly as the Public Services division has advised that a high level duct was necessary.
25. The appellant submitted further details in May 2005, referred to above, but for a low level extract solution. An external street elevation was not provided with that design, but was included with the contemporaneous planning application for an extension. I do not disagree with the appellant that in the light of this scheme a dialogue could have ensued that might have led to a visually acceptable solution. The failure of the Council to provide any response is regrettable. However, as the later proposal was for a low level extract that did not meet the requirements of the Public Services division I am satisfied that this reason for refusal has been adequately justified. The proposals would conflict with UDP policies D4, D8 and D18 which seek to protect the character of the area.”
- The Inspector then considered the issue of vitality and viability, which, it is accepted, is not relevant to the present appeal.
- He expressed his conclusions as follows:
“31. Notwithstanding my conclusion that there would be no effect on the viability or vitality of the local shopping parade, the effect on living conditions of nearby occupiers and the conservation area is decisive. For the reasons given above and having regard to all other matters raised, I conclude that he appeal should be dismissed.”
The Claimant’s case.
- The Claimant’s challenge to the Inspector’s decision is on grounds of procedural unfairness. The Claimant contends that the decision was reached in a manner which was procedurally unfair for reasons formulated as follows:
(1) At no point prior to or at the hearing of her appeals had the Second Defendant put in issue the submission upon which the Claimant relied in support of those appeals, to the effect that the proposed ventilation scheme was in any respect inadequate or ineffective in eliminating or reducing cooking odours to acceptable levels, and the Inspector did not put this to the Claimant.
(2) The Second Defendant had not referred to, either before or after the hearing, to the purpose of or to there being an ongoing requirement for a high level ventilation duct of the kind referred to by the Public Services Division, and nothing had been said to suggest that the 2004 Public Services response remained a live issue, despite the fact that the low level system had subsequently been approved by the Second Defendant’s Environmental Health Building Control Departments.
(3) The Inspector did not refer to the requirement of Public Services for a high level duct, despite the fact that Peter Stanway, the Claimant’s planning witness, had explained at the site visit the absence of external bulk in the design of the ventilation scheme that had been submitted.
(4) It was unreasonable for the Inspector to refer to the absence of a firm proposal for a high level ventilation system in circumstances in which the Claimant could not have been aware that such a proposal was necessary.
(5) For the above reasons, it was procedurally unfair for the Inspector to have treated a high level duct at the rear of the premises as a continuing requirement imposed by the Public Services without reference having been made or evidence having been directed to that issue at the hearing.
(6) Similarly, the Inspector dealt in an unfair manner with the issue of noise, in that that issue had not been referred to by the Second Defendant prior to or at the hearing and was not put to the Claimant by the Inspector at the hearing.
The Law.
- In support of her submissions the Claimant relies on the following formulation of the rules of natural justice applicable in the exercise of an investigative jurisdiction, as stated by Lord Diplock in
“The first rule is that the person making a finding in the exercise of such a jurisdiction must base his decision upon evidence that has some probative value in the sense described below. The second rule is that he must listen fairly to any relevant evidence conflicting with the finding and any rational argument against the finding that a person represented at the inquiry, whose interests (including in that term career or reputation) may be adversely affected by it, may wish to place before him or would have so wished if he had been aware of the risk of the finding being made. The technical rules of evidence applicable to civil or criminal litigation form no part of the rules of natural justice. What is required by the first rule is that the decision to make the finding must be based upon some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory. The second rule requires that any person represented at the inquiry who will be adversely affected by the decision to make the finding should not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce additional material of probative value which, had it been placed before the decision-maker, might have deterred him from making the finding even though it cannot be predicted that it would inevitably have had that result.”
The Claimant also relies on the speech of Lord Russell of Killowen in Fairmount Investments Limited v Secretary of State for the Environment [1976] 1 WLR 1255 and the judgment of Lord Goddard C.J. in R. v Paddington and Saint Marylebone Rent Tribunal, Ex parte Bell, London and Provincial Properties Limited [1949] 1 KB 666 at p. 682 as particular applications of this general principle.
The Ventilation System.
- The Claimant submits that the central issue on this application is the Inspector’s acceptance that a high-level ventilation duct was a continuing requirement of the Public Services Department and his reliance on this in his reasoning. It is submitted that the Claimant proceeded on the basis that the requirement had fallen away as a result of the ventilation scheme submitted on her behalf to the local planning authority. It is submitted that the proposed scheme had received no criticism on that ground from the Council either before or at the hearing. Furthermore, this was a matter on which the Inspector heard no evidence. The Claimant submits that she had made very clear both in correspondence and in her statement of case that she considered that any historical requirement for a high-level duct had fallen away. As a result, it is said that the hearing before the Inspector proceeded on the basis that there was no continuing requirement for a high-level duct and that nothing that occurred at the hearing could have caused her to think otherwise.
- In order to consider these submissions it is necessary to set out the history of the matter in some detail.
- Following the Claimant’s application to the Council on the 24th May 2004 for the removal of condition 3, officers of the Council produced in about June 2004 a document entitled “Development Control Delegated Report” which addressed the application. This document, a copy of which was supplied to the Claimant at the time, included the following passages:
“Public Services
Public Services advise that they would have no objection to the proposal subject to a suitable extract ventilation system being high level ducted nuisance free discharge position, internally located fully isolated fan and additional odour control. Premises should be treated as any other A3 use. Low level discharge is not acceptable. Imposition on “no cooking” may relate to difficulties of providing duct at rear.”
“Currently there is no ventilation system, as the subject premises have no permission for cooking. It should be noted that no details were supplied to us as to a ventilation system to address any impact which may arise as a result of the removal of Condition 3. As this is relevant to the upholding of this “no cooking condition” the following evaluation is made. The subject site is located in a Conservation Area with residences in close proximity above and beside it. The installation of potential ducting to control cooking odours, potentially as high as the roof or alternatively, internally through the building in the building would be likely considered to impact on visual amenity, and cause nuisance, from noise, vibration and discharge to local residences.”
“Impact on the Conservation Area.
The potential installation of high level ducting to control odours (should the premises be an A3 use) is likely to have significant visual impact on the Conservation Area contrary to Policy D18 and Second deposit draft Unitary Development Plan policy D16.”
“Conclusion.
The subject site is unsuitable for an A3 use. Allowing cooking on the premises is considered to deleteriously impact on the amenity of local residents. The establishment of a ventilation system to control odours is considered to deleteriously impact on the Conservation area and residential amenity. The establishment of an A3 use in this location is considered incompatible with adjoining residential uses and to erode the safeguarding of the neighbourhood shopping parade.”
It recommended that the application be refused for the reasons subsequently given by the Council in its refusal.
- On 6th October 2004 the Council granted planning permission for the erection of a single storey extension at the rear of the premises, subject to a condition that the premises should not be used for A3 use. The planning permission included permission for ducts.
- On 17th March 2005 Mr. John Love on behalf of the Claimant submitted to the Council’s Building Control Department a design of a ventilation system for the single storey extension. It is common ground between the parties that this proposal was for discharge at the level of the single storey extension and was therefore a low level system. On 7th April 2005 Mr. Love wrote to the Environmental Health Department of the Council seeking approval for his design.
- On 11th May 2005 Mr. Bennett, a Senior Environmental Health Officer in the Council’s Environmental Health–Commercial Department replied to Mr. Love in the following terms:
“The scheme would appear to satisfy the requirement of the Food Safety Act 1990 and legislation made thereunder.
I would however advise you that this does not confer automatic approval under the Planning and Environmental Protection Legislation which may or may not be granted when planning permission is applied for.”
- On 20th May 2005 Mr. Stanway, a planning consultant engaged by the Claimant, wrote to Mr. Chris Morris, the Director of Strategic Planning of the Council, referring to the pending appeals against the Council’s refusal to vary or remove condition 3. He enclosed details of the mechanical ventilation system designed by Mr. Love which, Mr. Stanway stated, had been designed to deal with environmental concerns that the Council had shown about the premises. Mr. Stanway stated:
“Clearly the approval of these ventilation proposals, which fit into the proposed extension works that were permitted on the 7th October 2004,…remove some of the force of your Council’s reasons of refusal… This is particularly so at reason 3 which is satisfied by the approved ventilation system and which must fall away from consideration of the appeal.
We therefore invite you to reconsider the circumstances of these matters where the Council may wish to grant planning permission for a sympathetic proposal for the premises without resorting to the appeals.
We look forward to receiving your helpful response and confirm that copies of these documents are being sent to the planning Inspectorate.”
- It is an unfortunate fact that the Council never responded to that letter.
- In June 2005 Mr. Stanway submitted the Claimant’s Statement of Case on the Appeal to the Inspector. This document addressed the reasons for refusal. It includes the following statements:
“4.2.2.2 Policy E6: Planning Permission
The proposals will not result in any emission of noise, fumes, dust, water or any water and soil pollutants, grit or vibrations.
A satisfactory extract system has been designed which has received approval from the LPA’s building regulation and environmental health officers. Those details were sent to the LPA and the Planning Inspectorate on the 20 May 2005.”
The same response was made in relation to Policy S21:
“We comment that a satisfactory extract system has been designed that will combat any cooking smells…”
“5.1.3…
We comment that the condition was unnecessary and does not serve the purpose for which it was intended. The interests of the amenities of neighbouring properties would best be served by adding a condition that required a suitable mechanical extract system to be authorised by the LPA before commencement of the development. Clearly the prescribed activity has not harmed the neighbourhood amenities there being no complaints being made for nearly 12 years about the activities taking place at Royal Teas.”
“6.3 The five objections highlighted in the Development Control Delegated Report deal with environmental issues which in terms of the emission of cooking odour would be obviated by the installation [of] the environmental controls that have been approved by the Council.”
“7.1.3 To avoid any doubt about the suitability of the premises for these uses in this location. An acceptable method and system for ventilating the premises has been designed and approved by the LPA. If this appeal is sustained and planning permission granted. This installation would be implemented and a suitably worded condition would be attached to insure that this installation is carried out.”
- The Council’s response to the Claimant’s Statement of Case is contained in a letter dated 11th July 2005. This letter includes the following statement:
“The LPA has received a letter and information relating to a proposed mechanical ventilation system for the appeal site from the appellant. The LPA considers that the alterations to the front of the unit necessary for the installation of the system would be harmful to the character of the Conservation Area. The LPA considers further that the expulsion of air from the rear elevation of the appeal site would be detrimental to the amenity of the neighbouring properties.”
The letter also states:
“The LPA has submitted officer’s reports (sic) in relation to this appeal outlining the Council’s case.”
This is, and would have been understood by all concerned, to be a reference to the Development Control Delegated Report of June 2004 to which reference has been made above.
- On this application there is evidence from Mr. Stanway that at the hearing before the Inspector on 23rd November 2005,
(1) there was no reference to the Public Service requirement for a high-level duct referred to in the Development Control Delegated Report;
(2) no explanation had by that time been provided for the requirement of a high-level duct;
(3) emphasis was placed by the Claimant on the fact that the approved ventilation system had no external bulk;
(4) there was no reference to any problem that might be caused by the proposed kitchen fan as designed by Mr. Love.
Procedural unfairness.
- The Claimant’s case is, essentially, that she has been kept in the dark as to the risk of certain findings being made and, as a result, has been deprived of an opportunity to deal with these matters at the hearing. In the words of Lord Russell of Killowen in Fairmount Investments, she has been denied a fair crack of the whip.
- First she contends that at no point prior to or at the hearing of her appeal had the Council put in issue the submission upon which she relied in support of her appeals, to the effect the proposed ventilation scheme was in any respect inadequate or ineffective in eliminating or reducing cooking odours to acceptable levels. I am unable to accept this submission. The suitability of a ventilation system was clearly in issue. In that regard the Claimant maintained that Mr. Love’s proposals met all of the difficulties and objections. As a result the adequacy or effectiveness of the proposed ventilation scheme was clearly in issue in the appeals.
(1) The Development Control Delegated Report produced in June 2004 and supplied to the Claimant concluded that the establishment of a ventilation system to control odours would have a deleterious impact on the Conservation Area and residential amenity. It was against this background that the Claimant commissioned and submitted the Love proposal as a suggested means of meeting the objections.
(2) The suitability and appropriateness of a ventilation system as a means of overcoming the effect of the Claimant’s proposals on the amenities of neighbouring residents was clearly raised as an issue in the second and third reasons for refusal of consent given by the Council on 23rd July 2004.
(3) The Council’s initial response to Mr. Love’s design in the letter dated 11th May 2005 from Mr. Bennett, Senior Environmental Health Officer, merely stated that the scheme would appear to satisfy the requirements of the Food Safety Act 1990 and the legislation thereunder. The letter expressly stated that it was not conferring approval under planning and environmental protection legislation.
(4) Mr. Stanway’s letter of 20th May 2005 made submissions as to the virtues of Mr. Love’s design. Regrettable as it is, the Council did not respond to this letter. This failure cannot have led the Claimant or her advisors to believe that Mr. Love’s design was accepted as meeting the objections.
(5) The Claimant’s Statement of Case on the Appeal, prepared by Mr. Stanway, and submitted in June 2005 contends that the interests of the amenities of neighbouring properties could best be served by adding a condition that required a suitable mechanical extract system to be authorised before commencement of a development. (Paragraph 5.1.3) Similarly, it submits that the five objections highlighted in the Development Control Delegated Report deal with environmental issues which would be obviated by the installation of the environmental controls that had been approved by the Council. This is, of course, a reference to the limited approval of Mr. Love’s design given by Mr. Bennett in his letter of the 11th May 2005. In these circumstances, the Claimant and her advisors were advancing a positive case that the designs which had been submitted would meet the objections.
(6) The Council’s response dated 11th July 2005 maintains its objections. In particular, it deals with the proposed ventilation system and states that it considers that the expulsion of air from the rear elevation of the site would be detrimental to the amenity of neighbouring properties. Nothing in this response could reasonably have led the Claimant or her advisors to believe that Mr. Love’s design was accepted as meeting the difficulties. On the contrary, the Council’s response makes clear that the Council has submitted the Development Control Delegated Report on which it relies in the appeal as outlining the Council’s case. Its effect, therefore, was to reiterate the objections, including those embodied in reasons 2 and 3 for refusal, notwithstanding the more recent proposal incorporating Mr. Love’s scheme. Nobody could reasonably have been led to believe that the Council was abandoning its objections as a result of the submission of Mr. Love’s scheme.
(7) Finally in this regard, it was the Claimant’s case at the hearing that Mr. Love’s design met all the objections. In his first witness statement Mr. Stanway states that a mechanical ventilation system had been designed to deal with environmental concerns and was intended to overcome the reasons for refusal. He states that this matter was discussed during the hearing and in more detail later during the site inspection with the Inspector.
In these circumstances it should have been plain to the Claimant and to her advisors that the question of the effectiveness or adequacy of the proposed ventilation system was far from closed at the time of the hearing. On the contrary, this was a key issue for the Inspector to consider.
- Secondly, the Claimant submits that the Council had not referred, either before or at the hearing, to there being an ongoing requirement for a high-level ventilation duct of the kind referred to by the Public Services Division and that nothing had been said to suggest that the Public Services response to consultation in 2004 remained a live issue, despite the fact that the low level system had subsequently been approved by the Environmental Health and Building Control Departments. The Claimant complains that the Inspector did not refer to the requirement of Public Services for a high level duct despite the fact that Mr. Stanway had explained at the site visit the absence of external bulk in the design of the ventilation scheme that had been submitted. The Claimant submits that it was unreasonable for the Inspector to refer in his decision to the absence of a firm proposal for a high level ventilation system in circumstances in which the Claimant could not have been aware that such a proposal was necessary. For these reasons it is submitted that it was procedurally unfair for the Inspector to have treated a high level duct at the rear of the premises as a continuing requirement imposed by Public Services without reference having been made or evidence having been directed to that issue at the hearing.
- I am satisfied that there was no reasonable basis on which the Claimant or her advisors could have concluded that the requirement for a high level ventilation duct was not an on-going requirement. In particular, it is incorrect to state there was nothing before the hearing to suggest that there was an ongoing requirement for a high level ventilation duct.
(1) The Development Control Delegated Report of June 2004, citing the advice of the Public Services Department, made clear that low level discharge was not acceptable.
(2) Mr. Bennett, in his letter of 11th May 2005 made clear that he was not granting approval for planning purposes. Accordingly there is nothing in that letter which could support a suggestion that the Claimant was misled.
(3) Mr. Stanway’s letter on the 20th May 2005 was an attempt to persuade the Council to change its position on the basis of Mr. Love’s design. However, in the absence of any response, regrettable as that was, matters remained as they stood and the Claimant could not reasonably have concluded that a high level ventilation duct was no longer a requirement so far as the Council was concerned. In particular, the Council did not accept the invitation extended by Mr. Stanway to vary or remove the condition and avoid the need for the appeals. Nothing in Mr. Stanway’s letter or the failure of the Council to respond to it could reasonably have led the Claimant or her advisors to conclude that the Council had changed its position in the light of Mr. Love’s proposals and therefore the requirement of a high level ventilation duct was no longer maintained and no longer needed to be addressed.
(4) In the Claimant’s Statement of Case for the Appeal she proceeds on the basis that the objections highlighted in the Development Control Delegated Report have to be met. I note that paragraph 6.3 of the Statement of Case refers expressly to this document. Nothing in the Statement of Case indicates that the Claimant is proceeding on the basis that the Council has changed its position and that the third ground of refusal is no longer maintained. In this document the Claimant is making her submissions and trying to persuade the Inspector that Mr. Love’s scheme provides an answer to the objections.
(5) The Claimant submits that there is nothing in the Council’s response of the 11th July 2005 about a requirement for a high level ventilation duct. It is correct that this is not mentioned in the body of the letter. However, the letter makes clear that the Council has submitted the Development Control Delegated Report on which it relies in the appeal as outlining the Council’s case. The fact that the letter states that it comprises the Council’s response to the Appellant’s Statement of Case it does not alter the matter. It cannot reasonably be read as limiting the Council to the matters in the letter as opposed to the matters in the Development Control Delegated Report to which it refers. Similarly, the statement at the final page of the letter that the Council does not wish to make any further comments on the Appellant’s Statement of Case does not assist the Claimant. Nothing in the Council’s response provides any reasonable basis for belief that the Council had changed its position. To assume that it did could only have been wishful thinking on the part of the Claimant and her advisors.
- I have referred above to the fact that the Development Control Delegated Report cites the advice of the Public Services Department to the effect that a low level discharge was not acceptable. Contrary to the submission on behalf of the Claimant, I consider it totally irrelevant that by the time of the hearing of the appeals the Council’s Public Services Department had ceased to exist. The position taken in the Development Control Delegated Report was and remained the position of the Council.
- I should also draw attention to the fact that in his first witness statement Mr. Stanway states that he pointed out to the Inspector on the site visit the absence of external bulk in the design of the ventilation scheme that had been submitted. This demonstrates that the Claimant and her advisors were aware that the impact of the proposed ventilation system on the Conservation Area was an issue at the hearing.
- The Inspector was under a duty to determine the appeals on the basis of the proposal that the Claimant had put before him, namely the proposal including the proposed ventilation system. It is clear that this is what he did.
- Thirdly, the Claimant submits that the Inspector dealt in an unfair manner with the issue of noise in that that issue had not referred to by the Council prior to or at the hearing. I consider that there is no reasonable basis on which the Claimant or her advisors could have concluded that noise was not an issue in the appeals. Three of the four grounds for the refusal of consent expressly referred to noise. This was clearly an important issue in the appeals.
- The Claimant then makes the further submission that there was procedural unfairness to the Claimant in that the Inspector failed expressly to raise certain issues at the hearing or to put matters specifically to the Claimant and her advisors. In this way a complaint is made that the Inspector failed to put to the Claimant the suggestion that the proposed ventilation scheme was inadequate or ineffective, the continuing requirement for a high level ventilation duct and the issue of noise.
- In this regard the Claimant relies on Dyason v Secretary of State for the Environment and Chiltern District Council [1998] JPL 778. There, the Court of Appeal was concerned, as we are in the present case, with a hearing as opposed to a public inquiry. Pill L.J. observed (at p. 784):
“Planning permission having been refused, conflicting propositions and evidence will often be placed before an Inspector on appeal. Whatever procedure is followed, the strength of the case can be determined only upon an understanding of that case and by testing it with reference to propositions in the opposing case. At a public local inquiry the Inspector, in performing that task, usually has the benefit of cross-examination on behalf of the other parties. If cross-examination disappears, the need to examine propositions in that way does not disappear with it. Further, the statutory right to be heard is nullified unless, in some way, the strength of what one party says is not only listened to by the tribunal but is assessed for its own worth and in relation to opposing contentions.
There is a danger, upon the procedure now followed by the Secretary of State of observing the right to be heard by holding a “hearing”, that the need for such consideration is forgotten. The danger is that the “more relaxed” atmosphere could lead not to a “full and fair” hearing but to a less than thorough examination of the issues. A relaxed hearing is not necessarily a fair hearing. The hearing must not become so relaxed that the risk of examination essential to the determination of difficult questions may be diluted. The absence of an accusatorial procedure places an inquisitorial burden upon an Inspector.”
- In that case, the appellant against a refusal of planning permission had called the President of the British Domesticated Ostrich Association to give his opinion on his business plan for ostrich breeding. The witness had not seen it in advance and told the Inspector that he could not assist as he had not seen it. There was no application for a brief adjournment to enable the witness to consider the document, nor was such an adjournment offered. There was no apparent challenge to the business plan. However, in his report the Inspector made findings adverse to the appellant, including expressing considerable doubt as to his intentions and a finding of insufficient detail about future expansion. The Court of Appeal held that if an Inspector is minded to make such findings against a party he should put the doubts to him and give him an opportunity to deal with them. In all the circumstances the fair hearing required by statute had not been provided.
- As with all allegations of procedural unfairness, a great deal will turn on the particular facts of the case. Thus, in Dyason Pill L.J. expressly added (at p. 784) that each case must be determined on its own merits and that there are plainly limits to the Inspector’s duty to ask questions. In the present case, I consider, for the reasons set out in detail above, that the Claimant was sufficiently alerted to the matters which were the issue in the appeals so as to relieve the Inspector of any burden to do anything further to draw attention to them. Moreover, it is clear from Mr. Stanway’s evidence that the Inspector heard detailed submissions on behalf of the Claimant as to the virtues of Mr. Love’s scheme and how they would provide an answer to the objections maintained by the Council.
- For these reasons I do not consider that there has been any procedural unfairness to the Claimant.
- In any event, I consider that there is a further obstacle in the path of the Claimant. It is clear that even if the Inspector was in error on one or more of the grounds indicated above, he would nevertheless have come to the same conclusion (c.f. Simplex GE (Holding) Limited v Secretary of State for the Environment [1988] 3 PLR 25). In dismissing the appeal on grounds of the effect on the amenities of neighbours, the Inspector considered that the condition imposed in 1987 was reasonable and enforceable and that an attempt to control smells by limiting the type of food cooked by imposing the suggested amended condition would be ineffective. He concluded that the activity of cooking in the property as it stands would detract from the living conditions of adjoining residents. He considered the ventilation scheme proposed by Mr. Love and rejected the Claimant’s suggestion that this removed some of the force of the Council’s reasons for refusal. He did so for a number of different reasons. One was that no high level discharge was proposed and that a low level discharge would not be acceptable. A second related to the efficacy of Mr. Love’s proposal. Here the Inspector concluded that there was no indication of the likely performance of the filter and he considered it extremely likely that cooking smells would still be perceived by adjacent occupiers. In this regard, it is significant that the Inspector dealt with and assessed the merits of Mr. Love’s scheme quite independently of the objection based on lack of a high level duct ventilation scheme. Thirdly, he rejected the Claimant’s submission for a further distinct reason, namely that no attenuation was proposed to deal with noise. He was not satisfied that the scheme would sufficiently reduce the harm that could be caused to the amenities of the adjoining occupiers in terms of noise and fans. (Paragraph 20). Each of these was an independent route to his conclusion.
- However, even if it is assumed, contrary to the view I have come to above, that these three lines of reasoning were not open to the Inspector because of unfairness in the proceedings before him, there remains a fourth basis on which the Inspector rejected and was entitled to reject the Claimant’s submission based on the ventilation system proposed by Mr. Love. In paragraph 17 of his decision the Inspector had referred to the rather basic construction of the floors and walls of this building and the timber access stairs that pass through the centre of the floor plan. He considered that, as a result, cooking smells may permeate easily to the flat above and to the adjoining properties. At paragraph 19 of his decision, in addressing the Claimant’s submission based on Mr. Love’s ventilation scheme, the Inspector added that whilst a filtered extract must lead to some improvement, unless it is combined with a proposal to seal the internal walls and floors some smells are likely to continue to permeate by this route. This is, to my mind, entirely distinct from the other grounds of rejection which are challenged in this appeal on grounds of procedural unfairness. I consider, therefore, that the Inspector would have come to the same conclusion in any event.
- Contrary to the submission on behalf of the Claimant, I do not consider that the Inspector’s objection based on smells permeating through the structure of the building could have been met by the imposition of a condition as to sealing the property. This was not a matter which had been proposed by the Claimant and I do not consider that there was any obligation on the Inspector to consider such a condition.
- For these reasons the application will be dismissed.
