The owner of a Bath restaurant that was turned into a noisy mixed-use nightspot has failed in a challenge to an enforcement notice that demands he put a stop to nightclub and drinking establishment activities there.
Deputy judge John Howell QC ruled that an inspector was entitled to reject a claim that the steps required were “excessive” because the council imposed them not solely to remedy injury to amenity, but also due to concerns over the impact on the health and well-being of nearby residents.
The judge said that an appeal against an enforcement notice made under ground (f) of section 174(2) of the Town and Country Planning Act 1990 – on the basis that any step specified in an enforcement notice exceeds what is necessary to remedy any injury to amenity caused by the relevant breach of planning control – cannot be entertained when (i) there is no appeal under ground (a) that planning permission should be granted and (ii) the planning objections which the step addresses are not limited to any injury to amenity.
He said that an appeal on that basis when there is no appeal under ground (a) “may be considered on its merits”, if the step in issue is one solely to remedy any injury to amenity caused by the breach of planning control.
In this case, he said: “The reasons why the council served the enforcement notice indicate plainly that they were concerned with the injury to amenity that the additional uses as a drinking establishment and as a nightclub had caused. But they also indicate that they were concerned with the effect of those uses on the health and well-being of nearby residents. These are not merely matters of amenity.”
He continued: “In this case there was no appeal against the enforcement notice under ground (a). The relevant step, that the use of the premises as a drinking establishment must stop, was not one merely seeking to remedy the injury to amenity such a use had caused. Accordingly the inspector did not err in law in refusing to consider the merits of the appellant’s contention that the step exceeded what was necessary to remedy any such injury, and other general planning considerations the appellant used, in support of its appeal against that step under ground (f).”
Stamatios Miaris appealed after Bath and North East Somerset Council issued an enforcement notice requiring him to cease use of Opa, at North Parade, Bath, as a drinking establishment and nightclub and put a stop to DJs performing there.
Miaris did not challenge the bar on nightclub use, but claimed that the other requirements were excessive. He claimed that the council’s aims could be met in other ways, such as a limit on non-dining drinkers allowed in the premises, and a noise abatement order already in existence.
In its reasons for issuing the notice, the council said that the change of use had led to an increase in pedestrian movements and a change to the pattern and timeframe of those movements outside the premises which had had a detrimental effect upon the well-being of residents of nearby residential properties, including from an increase in noise, vibration and disturbance.
Miaris v Secretary of State for Communities and Local Government Planning Court (Deputy Judge John Howell QC) 4 June 2015
Jonathan Wills (instructed by Horsey Lightly Fynn) for the appellant
Estelle Dehon (instructed by The Treasury Solicitor) for the first respondent
