Three separate sets of adjacent premises in redevelopment — Condition attaching to opening hours — Refusal to extend opening hours — Three separate applications contained in single application — Whether should be separate decision in relation to each appeal — Procedure by way of written representations — Court holding that procedure not requiring separate decision for each application — Application refused
Planning permission had been granted by the second respondent, Gateshead Metropolitan Borough Council, for Units 1 and 2, and a supermarket at Dewhurst Terrace, Sunniside, Gateshead, which were part of a redevelopment site. Each of the premises was subject to a condition: Unit 1 was a fish and chip shop with opening hours from 0900 hours to 2200 hours; Mondays to Saturdays Unit 2 was a hot food takeaway shop with similar opening restrictions; and the third premises comprised a supermarket which was not allowed to open on Sundays. The applicant made applications to vary the hours for all three outlets, extending them on weekdays and allowing them to remain open for seven days per week. Planning permission was refused on the ground that there would be disturbance to nearby residents. The applicant applied to the High Court on the ground, inter alia, that by determining all three appeals together in one decision letter without making a separate decision in relation to each appeal, the inspector acted in breach of Regulation 9 of the Town and Country Planning (Appeals (Written Representations Procedure) Regulations 1987 which allows the Secretary of State to “proceed to a decision on an appeal” and should only have regard to documentation relating to that appeal.
Held The application was refused
1. The court did not regard that Regulation 9, or indeed any regulation, required a separate decision for each application. It was sufficient if the decision letter made clear for each application both the decision and the reasons for it. There was no objection to a compendious decision provided that those two requirements were met.
2. In the present case the inspector knew that he had three appeals in respect of the properties. Further, there were considerable similarities in the three appeals, concerning late night opening and Sunday opening. Each appeal premises was on a single site and the subject of a recent development. The opening hours restrictions placed on each in the planning permissions was for the same reasons viz disturbance to nearby occupiers and, in each case, disturbance was given for the reason for refusal. It was clear that the inspector applied and intended to apply the disturbance factor to all three appeals.
3. The issue as to whether, by having regard to all the documents in relation to the appeals other than to each one individually, entailed a breach of Regulation 9, had been answered in Geha v Secretary of State for the Environment and another [1993] EGCS 202. There is was stated that the Secretary of State was given express permission by the regulation to proceed to a decision taking into account only such written representations and supporting documents as were submitted to him.
4. In the instant case the point was unsustainable in any event where the application itself had invited joint consideration by adopting a single notice of appeal.
John Fryer-Speeding (instructed by Richmond James & Lee of Consett, Durham) appeared for the applicant. Timothy Mould (instructed by the Treasury Solicitor) appeared for the Secretary of State. The second respondent did not appear and was not represented.
