Planning permission – Condition – Retrospective permission for alterations to bar and restaurant including retention of bi-folding doors creating possibility of open frontage – Condition requiring doors to be kept closed – Inspector upholding condition on appeal – Whether failing to deal adequately with acoustic report indicating that opening of doors unlikely to cause loss of amenity to neighbours – Whether insufficient reasons given for decision – Appeal allowed
The appellant and his business partners acquired a restaurant and bar on Clapham High Street, London SW4, and carried out substantial renovation works before re-opening it in March 2009. The second respondent council granted retrospective planning permission for the works, including bi-folding doors at the front of the bar and restaurant that could be opened onto the High Street, creating an open-fronted effect. However, a condition attached to the planning permission required that the doors be kept closed while the restaurant and bar were in use, in order to protect the amenity of adjoining occupiers.
The appellant appealed to the first respondent against the condition; the appeal was determined by an inspector on written representations. As part of his representations, the appellant submitted a report by an acoustic consultant, which contained noise measurement data and concluded that no reason arose, with regard to noise, why the frontage of the premises should not be open during the day without causing any loss of amenity to local residents. Dismissing the appeal, the inspector concluded that the condition should be retained to mitigate actual and potential noise nuisance. In his decision letter, he referred to his own site visit, the parties’ submissions and the acoustic report and found that on some occasions, if the doors were open, the noise from the premises would not be adequately contained and would constitute a noise nuisance in the immediate vicinity.
The appellant brought proceedings, under section 288 of the Town and Country Planning Act 1990, to quash the inspector’s decision on the ground that he had failed to grapple with the report or to provide reasons why he disagreed with its findings. Dismissing the claim, the judge held that the inspector had not been obliged to address the report’s conclusions expressly and that, having read the report and visited the premises, he had been entitled to exercise his own planning judgment for the reasons set out in his decision letter. The appellant appealed.
Held: The appeal was allowed.
The conclusion in the report that there was no reason why the frontage should not be open during the day did not preclude or undermine any conclusion of the inspector, exercising his planning judgment, that noise would be generated at other times, including at night. He had therefore been entitled to reject the appellant’s case that the condition should be discharged in its entirety. The inspector had not been obliged to consider modifying the condition by, for example, limiting the opening of the doors to the daytime. The appeal to him had been conducted by professionals on the appellant’s behalf on the basis that the condition should be discharged in its entirety. He had not been asked to consider restricting the opening of the doors to daytime use and did not have the material before him on which to make such a modification without requesting further representations, since the report did not focus on the precise time when, for its purposes, the “daytime” began and ended: R (on the application of Ayres) v Secretary of State for Environment, Transport and the Regions [2002] EWHC 295 (Admin) considered. The inspector had been entitled to conclude that the condition had value, particularly at night.
However, the reasons provied by the inspector for his decision were inadequate. The required degree of particularity of reasons would depend on the nature of the issues falling for decision: South Bucks District Council v Porter (No 2) [2004] UKHL 33; [2004] 4 PLR 50 applied. In the instant case, the report had given specific data measurements in support of its conclusions that there was no reason why the frontage of the property should not be open during the day. The inspector’s failure to provide reasons for rejecting the analysis and conclusions in the report left the appellant in doubt as to the potential for a future application, under section 73 of the 1990 Act, for a planning permission with a modified condition applying only at certain hours at night. It was unclear whether the inspector was rejecting the report in its entirety because he did not agree with its facts or analysis. His decision should be quashed on that ground and remitted for reconsideration.
Kevin Leigh and Philip Williams (instructed by Hall & Co) appeared for the appellant; Justine Thornton (instructed by the Treasury Solicitor) appeared for the first respondent; the second respondents did not appear and were not represented.
Sally Dobson, barrister
