Retail store — Refusal of planning permission — Appeal to Secretary of State — Inspector’s refusal of planning permission due to unacceptable noise — Applicant complained that illustrative plans relied on as fixed and immovable to its detriment — No opportunity to explain scope for alterations — High Court refusing to quash inspector’s decision — Court of Appeal upholding decision — Appeal dismissed
Homebase Ltd submitted a planning application to Kingstonupon-Thames Royal Borough Council under Class A1 of the Town and Country Planning (Use Classes) Order 1987. It applied to erect a retail store, with garden centre and residential development and submitted plans for the construction of a new vehicular and pedestrian access and the laying out of car parking and associated landscaping on the land occupied by former Government offices on Kingston Road, Tolworth, Surrey. Planning permission was refused and on appeal the Secretary of State for the Environment refused permission on the ground that customer noise entering and leaving the store with trolleys and car park noise, in particular on Sundays and bank holidays, would cause an unacceptably grave diminution in the living conditions of nearby residents. In reaching that conclusion the inspector relied on the position of the store entrance as shown on illustrative drawings.
The High Court dismissed an application by Homebase to quash the Secretary of State’s decision, but it appealed. The grounds of appeal were that the judge should have held that the inspector’s approach was erroneous in that he had treated the position of the store entrance as fixed by the illustrative drawings whereas the location was shown only illustratively and could be changed on an application for approval of reserved matters. Furthermore, he had failed in breach of the rules of natural justice to alert the appellant to the adverse significance being attributed to the particular location of the store entrance, as shown on the illustrative drawings, so as to give the appellant an opportunity to deal with the scope for altering the location of the street entrance.
Held The appeal was dismissed.
1. It was clear from the decision letter that the inspector had treated the plans as illustrative only and had not regarded the proposed entrance as fixed and immovable. The customer entrance to the store by its very nature was obviously both the focal point of activity and therefore of noise and the point of reference for customers. Thus, it was not surprising to find it used as a measuring point.
2. It was a basic and fundamental principle that everyone should know the case against them but where the issues were clear, that principle would not be extended so that a party was entitled to know what contemporaneous significance would be attached to each issue.
3. The decision letter was careful, reasoned, reasonable and judicious and showed that the inspector had fully considered the impact of all aspects of the proposed new development on the particular site.
Duncan Ouseley QC (instructed by Nabarro Nathanson) appeared for Homebase Ltd; Alun Alesbury (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment); the second respondents, Kingston-upon-Thames Royal Borough Council, did not appear and were not represented.
