Material considerations — Matter dealt with under other legislation — Whether capable of being material consideration — Application for planning permission for hot food retail shop — Possible problem of dropping of litter — Whether proper reason for refusal of planning permission
The first
respondent, the Secretary of State for Scotland, by his reporter, allowed an
appeal by the second respondents, Scotstown Holdings Ltd, and granted planning
permission for the change of use of premises in North Deeside Road, Cults,
Aberdeen, to use as a hot food retail shop. The planning authority and the
local community council appealed against the decision on the ground, inter
alia, that the reporter, who had identified loss of amenity as the main
issue in the appeal, had erred in law in considering that as the dropping of
litter in public places was dealt with under other legislation it was not a
proper reason for withholding planning permission.
the decision quashed.
Problems of
litter could affect residential amenity and should be considered by the
planning authority or the reporter in that context. To ignore them on the basis
that they were dealt with under other legislation was an error of law: see pp
3G-4B.
Per curiam: In view of the undisputed finding that the premises were in an
area of mixed commercial and residential use the reporter had not erred by
applying too high a test in asking himself whether the proposed change of use
would result in a serious loss of amenity.
referred to in the opinion
Appeal under
sections 231 and 233 of the Town and Country Planning (Scotland) Act 1972
This was an
appeal by the City of Aberdeen District Council and Cults, Bieldside &
Milltimber Community Council under sections 231 and 233 of the Town and Country
Planning (Scotland) Act 1972 against a decision dated September 24 1990 of the
first respondent, the Secretary of State for Scotland, by his reporter, who had
allowed an appeal by the second respondents, Scotstown Holdings Ltd, against a
refusal of planning permission by the district council for the change of use of
premises at Unit 7, The Courtyard, 327/329 North Deeside Road, Cults, Aberdeen,
to use as a hot food retail shop.
(instructed by Bennett & Robertson) appeared for the appellants, City of
Aberdeen District Council and Cults, Bieldside & Milltimber Community
Council.
Moynihan (instructed by the solicitor for the Secretary of State for Scotland)
appeared for the first respondent.
Kinroy (instructed by Bird Semple Fyfe Ireland) appeared for the second
respondents, Scotstown Holdings Ltd.
following opinion of the court was delivered.
LORD COWIE: This is an appeal under the provisions of sections 231 and 233 of
the Town and Country Planning (Scotland) Act 1972.
The appellants
are the City of Aberdeen District Council as planning authority and Cults,
Bieldside & Milltimber Community Council. They are appealing against a
decision of the Secretary of State for Scotland, who allowed an appeal by
Scotstown Holdings Ltd against a refusal of planning permission by the district
council for the change of use of premises at Unit 7, The Courtyard, 327/329
North Deeside Road, Cults, which is restricted to Class I in the Schedule to
the Town and Country Planning (Use Classes) (Scotland) Order 1973 [SI 1973 No
1165 (S90)], as amended, to use as a hot food retail shop. The first respondent
is the Secretary of State for Scotland and the second is Scotstown Holdings
Ltd.
The
description of the site and the representations made for and against the
application by the parties are fully set out in the reporter’s letter of
September 24 1990.
The reporter’s
conclusion was that, having considered all the matters raised in the representations,
there were no sound and clear-cut reasons for the refusal of planning
permission in this instance provided that certain safeguards were provided by
way of conditions. He then proceeded to specify certain conditions directed
particularly to the question of amenity. These conditions were as follows:
1. The
development hereby permitted shall be begun before the expiration of five years
from the date of this permission.
2. The
premises shall not open for business outwith the hours 0800 to 2300 Monday to
Saturday, nor at any time on Sunday.
3. The change
of use hereby permitted shall not begin until provisions for the extraction and
filtration of cooking smells have been made in accordance with a scheme to be
agreed with the planning authority; any plant installed in accordance with such
a scheme shall be maintained to the satisfaction of the planning authority.
4. No
recorded music shall be played on the premises at a level which would result in
a sound level measurement in excess of 55 dB(A) within 10 metres of the
premises.
The appellants
have appealed against that decision on various grounds which are set out in the
case but we were informed by counsel for the appellants that he was presenting
an argument on only three of these grounds.
The first was
that the reporter had erred in law in considering at para 18 of his decision
that as the dropping of litter in public places was dealt
planning permission.
The second was
that there was no evidence before the reporter to allow him to hold at para 17
of his decision that cooking smells can be substantially reduced by the
installation of modern filtration equipment and, in any event, to attach
condition 3 to the grant of planning permission which assumes that it can be
done was unjustified.
The third was
that the reporter had erred in law when he reached the conclusion in para 13 of
his decision that the test of whether planning permission should be refused in
the circumstances of this case was whether the hot food retail shop would
result in a serious loss of amenity to nearby residents as opposed to
loss of amenity of a lesser standard.
On the first
ground it was submitted by counsel for the appellants that it was clear that
the reporter had put out of his mind the consideration of litter as a ground
for refusing planning permission because, in his view, the control of litter in
public places was covered by other legislation. Indeed, it was indicated in the
answer to this ground of appeal by the first respondent that it would have been
improper for him to have refused planning permission by assuming that members
of the public would not comply with the law.
In his reply,
counsel for the first respondent indicated that he did not intend to present an
argument in support of that answer and what he submitted was that, on a fair
reading of paras 18 and 19 of the reporter’s decision, it was clear that the
reporter had not put out of his mind the question of litter as being a material
consideration in deciding whether planning permission should be refused but had
come to the view on consideration of that matter among others that it did not
amount to a sound and clear-cut reason for the refusal of planning permission.
We are unable
to read the reporter’s decision in that way. What he says in para 18 is:
Turning to
other matters raised reference has been made to possible problems of litter.
This is often raised in connection with hot food shops but it is now generally
recognised that as the dropping of litter is dealt with under general
legislation it is not a proper reason for withholding planning permission.
The reporter
then goes on to deal with other considerations in the same paragraph.
In our
opinion, the only proper inference that can be drawn from the words quoted are
that, having considered the matter of litter, the reporter had decided to put
it aside as of no significance because it could be dealt with under other
legislation. Nowhere does he say that litter was still a matter which was of
relevance in dealing with the question of loss of amenity. In our opinion, that
would have been very easy for him to say if that had been his view.
Furthermore, it would have been consistent with a decision which is referred to
in the textbook by Mr Eric Young entitled Scottish Planning Appeals:
Decisions on Law and Procedure and of which we approve notwithstanding other
decisions which appear to be
numbered 6.22 on p 175 of Mr Young’s book, the reporter says:
While
problems of litter and vandalism were primarily matters for the police, they
could also affect residential amenity and so they were also matters for
consideration by the planning authority.
Likewise, in
our opinion, they are matters for the reporter to consider in the context of
residential amenity and to ignore them on the basis that they are dealt with
under other legislation is, in our opinion, an error in law. As was pointed out
by counsel for the appellants, in other fields of legislation consideration has
to be given to activities which infringe the criminal law and it could not be
said that because it is for the police to control these activities they can be
ignored. Breach of the peace in licensed premises when considering the renewal
of a licence is an example.
It was
submitted by counsel for the respondent that although the reporter did not
specifically state that he took the question of litter into consideration when
looking at the issue of amenity, it was clear from the opening words of para 19
that he had done so because in reaching his conclusion he refers back to para 18
by saying: ‘I have taken account of these and all the other matters raised in
the representations’. We do not read these words as referring back to the
matter of litter. In our opinion, the reporter had already disposed of the
matter of litter in para 18 and his reference back to these and all the other
matters raised in the representations refers to matters other than litter.
For all these
reasons, notwithstanding the valiant attempt by counsel for the first
respondent to persuade us that the clear implication to be taken from the
reporter’s words was that he had taken the matter of litter into consideration
when arriving at his conclusion, we are not prepared to accept that submission.
Having failed to do so, when, as the reporter himself states, the principal
issue in this case was whether the proposed use of the premises would result in
a serious loss of amenity, such failure is, in our opinion, an error in law and
accordingly his decision must be quashed.
That is
sufficient to dispose of this appeal but it might be helpful if we were to give
our views on the other grounds of appeal.
As regards the
second ground of appeal, we are satisfied that there was sufficient information
before the reporter to justify him in deciding that it was not impossible to install
an effective filtration system at the premises and on that account we are
satisfied that he was justified in attaching condition 3 to the grant of
planning permission requiring the developer to come up with a scheme for
dealing with cooking smells. The position might have been different if there
had been any suggestion by the appellants that such a system could never be
effective because in that situation the condition would have been
unjustifiable, but that is not the situation here. All that the reporter has
done, on the basis of the information which was before him, was to give the
parties the opportunity of reaching agreement on an effective filtration system
and we consider that he was entitled to do so on the basis of the
appeal.
As regards the
third ground of appeal, the appellants’ submission was that the reporter had
asked himself the wrong question in respect that he had asked himself, as para
13 of his decision discloses, whether the change of use of the premises to a
hot food retail shop would result in a serious loss of amenity.
Counsel’s
argument was that that was applying too high a test in the circumstances of
this case. It was pointed out that these premises were, according to the policy
of the district local plan, in an R1 residential area where activities would
not be permitted unless the appellants could be satisfied that the use would
cause no conflict with or any nuisance to the enjoyment of the existing residential
amenity. In these circumstances it was clear that the test of loss of amenity
was much lower than that adopted by the reporter.
In any event
it was submitted by counsel for the appellants that the reporter had not
attached sufficient weight to the difference between the proposed use of this
unit as a hot food retail shop and the use of the other units which was
restricted to Class I in the Schedule to the Town and Country Planning (Use
Classes) (Scotland) Order 1973, as amended, and argued that the proposed use
would have a significant effect on the amenity of the area.
In our
opinion, however, the answer to these submissions lies in the undisputed
finding that, notwithstanding the fact that this is an R1 residential area and
that there is a condition restricting the use of the units, this is an area of
mixed commercial and residential use (of the reporter’s finding at para
14 of his decision) and, accordingly, that the test of loss of amenity is a
higher one than for a purely residential area. For that reason we do not
consider that the reporter has applied too high a test and we are of the
opinion that this third ground of appeal must also fail.
In view of the
fact that the first ground of appeal is, in our opinion, a sound one we shall
allow the appeal and quash the decision of the reporter dated September 24
1990.
Appeal
allowed; decision of first respondent’s reporter quashed.
