Council refusing application for planning permission for use of premises as children’s home – Inspector allowing appeal and granting temporary planning permission for two years – Whether inspector erred in law in granting temporary planning permission – Council’s appeal allowed
The appellant council refused an application for planning permission for use of 12 Friern Watch Avenue, North Finchley, London N12, as a children’s home. The existing use of the property was as a home for the elderly. The inspector identified two main issues, first, the effect of the proposed development on the character and appearance of the area and, second, the effect on the present living conditions of neighbouring residents with regard to noise and nuisance. In relation to the second issue, the inspector formed the view that: “With a low standard of management the proposal would cause unacceptable levels of noise nuisance . . . However I believe that, on balance over a twenty-four hour period, if the premises were managed to a high standard, this disturbance could be limited to a level not significantly greater than the present authorised use”. The inspector imposed a condition limiting the time for which the permission was in force to two years “to allow the effect of the proposal to be more clearly determined by the council”.
The inspector considered para 109 of Circular 11/95, which provided that where objections to development arose they should, if necessary, be met by conditions whose requirements would safeguard the amenities, and if it was not possible to devise such conditions, and the damage to amenity could not be accepted, the only course was to refuse permission. He also considered para 111 which provided that it might be appropriate to grant temporary permission in order to give the development a trial run, where there was insufficient evidence to enable the authority to be sure of its character and effect, although such permission would not be justified on the grounds that the character and management might change. The council appealed contending that the inspector had failed to take into account government advice, or had misapplied government policy as to when temporary planning permission would be justified. It was contended in the alternative that the inspector had failed to give any or adequate reasons as to why the government advice was inapplicable.
Held The application was allowed.
1. Although the inspector had concluded that the effect of a high level of management was that it would avoid conflict with the structure plan and harm to living conditions, he had also concluded that there was no uncertainty about the effect of a low standard of management, namely unacceptable levels of noise nuisance which conflicted with the structure plan. Explanation was required as to how a time-limited permission would protect against the potential harm identified and no such explanation could be discerned from the decision letter.
2. There was an apparent conflict with what was advised in para 111 of the circular since temporary permission could not be justified on the grounds that the character of management might change, and there also appeared to be a failure to comply with para 109 of the circular since a condition could not sensibly be devised which ensured good management. Those apparent conflicts had not been explained or justified by the inspector.
Richard Humphreys (instructed by the solicitor to Barnet London Borough Council) appeared for the appellants; Jonathan Karas (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment; the second respondent did not appear and was not represented.
