Refusal of change of use to wine bar — Inspector finding noise level and disturbance detrimental to residents — Whether inspector erred in law — High Court holding that inspector entitled in evidence to reach his conclusion
The appellants had applied for a change of use to a wine bar for the basement at 70 Charlotte Street, London W1. They wished the wine bar to remain open until midnight on weekdays, but were willing to close on Sundays and bank holidays if such a condition were imposed. An inspector dismissed an appeal against the local authority’s refusal of permission for change of use. He found that the proposed use would increase the noise level and disturbance in the locality to the detriment of existing residents and potential occupants of residential units currently vacated.
The appellants appealed on the grounds that: (1) the inspector had failed to consider whether the excesses of noise and disturbance in the locality identified could be controlled by the application of appropriate conditions; (2) there was no evidence on which such a finding could be based; and (3) the inspector gave too much weight to local plans which preceded in time and were inconsistent with government policy in Circular 13/87, para 19 of which advised the consideration of conditions to alleviate particular difficulties where serious environmental problems were envisaged.
Held The appeal was dismissed.
1. The inspector had considered whether the worst excesses of noise and disturbance could be mitigated by appropriate conditions, but had rejected that possibility.
2. The issue of closing hours was a matter before the public inquiry as was the late-night interest which attached to the proposed wine bar. There was adequate evidence before the inspector for him to take the view that imposing earlier closing times would be likely to bring into question the benefits arising from the permission.
3. There was no requirement that the inspector should put the matter back to the appellants to comment on the proposition behind his finding where, as here, he had made a legitimate inference from existing facts: see Winchester City Council v Secretary of State for the Environment (1978) JPL 467.
4. The inspector was under a statutory obligation to take local development plans into consideration: see section 54A of the Town and Country Planning Act 1990. What weight was to be attached to a particular policy was a matter for the inspector not the court. Moreover, there was no inconsistency between local and government policy. Para 19 of Circular 13/87 was referring to the breaking down of barriers between some sui generis uses, not between residential and other uses. The inspector had considered whether he could meet what para 19 suggested, but rejected that on reasoned grounds. As to the chronology of the policies, the constructive use of conditions had been government policy for some years before Circular 13/87 came into force.
5. Finally, there was a statutory duty on the inspector to consider the effect upon conservation areas: London Buildings Act 1990 section 72. It was for the inspector to reach an independent judgment on the issue taking into account the evidence he had heard and his impression of the site in question. The issue had been raised by local residents in a way critical of the proposal.
Ruth Stockley (instructed by Fuglers) appeared for the applicants; David Elvin (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment; the second respondent did not appear and was not represented.
