Applicant seeking permission for use of premises without compliance with conditions of planning permission – Application refused and dismissed on appeal by inspector – Whether inspector failing to take material considerations into account and taking account of immaterial considerations – Application dismissed
In June 1995 planning permission was granted for the use of premises at 33-34 Rathbone Place, London, as a restaurant/bar, subject to the condition that the permitted use “shall not be carried on except between the hours of 8am to 11pm on Monday to Saturday and 10am to 10.30pm on Sundays and Bank Holidays”. The applicant purchased the premises in September 1996. An entertainment licence was granted in November 1996 and was transferred and renewed to one of the applicant’s directors in April 1997. It was renewed again in April 1998 and permitted opening on Mondays to Thursdays until 2am, on Fridays and Saturdays until 3am and on Sundays until midnight.
The applicant sought permission under section 73 of the Town and Country Planning Act 1990, to use the premises as a restaurant/bar, without the above conditions. The application was refused by the second respondent. The claimant appealed. The inspector summarised the main issue as whether the removal of the condition would seriously harm the living conditions of residents of the locality through late night noise and disturbance” and dismissed the appeal.
The applicant applied pursuant to section 288 of the 1990 Act, to quash the inspector’s decision, inter alia, on grounds that the inspector had: (1) failed to have proper regard to a material consideration, namely the grant of the late-night entertainment licence, on the mistaken assumption that there was no commonality of material between the licensing and planning aspects of the matter; (2) the inspector erred in relying upon the effect that lifting the condition would have as a precedent; and (3) failed adequately to explain the weight she attached to policies contained in the unitary development plan, some of which supported the applicant’s proposal.
Held: The application was dismissed.
1. Having fully dealt with the licensing consideration, the inspector had not concluded that there was no commonality between the licensing and planning considerations, but that it could not override the planning considerations, as the licensing decision had not been made on the same basis. On the evidence before her, the inspector was entitled to conclude as she did. Her reasons were pertinent and justified.
2. The evidence before the inspector regarding premises in the adjoining area was such that, had she granted permission, her decision would have been likely to set a precedent. The inspector’s concern over that issue was justified.
3. The inspector carried out a balancing exercise between the two aims of the development plan policies and concluded that there was sufficient evidence of harm to the living conditions of residents to make the proposal contrary to the development plan. That was a judgment to which the inspector was entitled to come.
Robert Fookes (instructed by Colin Magill, of Newbury) appeared for the applicant; John Hobson (instructed by the Treasury Solicitor) appeared for the first respondent; Nathalie Lieven (instructed by the solicitor to Westminster City Council) appeared for the second respondents.
Sarah Addenbrooke, barrister
