Planning permission for café-bar refused following concerns about effect upon local residents — Inspector upholding refusal on ground that no conditions to control use submitted by claimant — Whether conditions should be determined by licensing authorities — Claim dismissed
The claimant was refused planning permission to open a late-night café-bar, and he subsequently appealed to the first defendant’s inspector. The inspector was primarily concerned that the operation of another bar might adversely affect local residents by increasing the incidence of late-night crime in an area already dominated by bars and clubs. The claimant maintained that his café-bar would attract a more sophisticated class of clientele, and referred the inspector to similar establishments in the area to illustrate his case. The inspector visited these establishments and found that the first was similar to a restaurant, but the second was more akin to a public house. He concluded that the proposed café-bar would improve the area only if the character of the premises could be identified and controlled by the imposition of conditions so that it resembled that of the first establishment.
The inspector considered whether the imposition of conditions fell within the remit of the planning authorities or the licensing authority, and concluded that it fell to be considered as part of the planning permission. Since the claimant had failed to submit any proposals for conditions, the inspector concluded that he was unable to allow the appeal because it was not clear what type of operation would result. Although reuse of the premises in general was desirable, on balance it was probable that the effects would be negative.
The claimant applied, under section 288 of the Town and Country Planning Act 1990, to have this decision quashed. He claimed that the inspector had erred because: (i) the imposition of conditions should have been considered by the licensing authorities under the provisions of the Licensing Act 1964 and did not constitute grounds for refusal of planning permission; or, alternatively, (ii) if the imposition of appropriate conditions did fall under the aegis of the planning authorities, then they could, and should, have been imposed by the inspector.
Held: The claim was dismissed.
Following Gateshead Metropolitan Borough Council v Secretary of State for the Environment [1994] 1 PLR 85, the inspector was under a duty to consider anything that was a material consideration under section 70 of the Town and Country Planning Act 1990. The fact that such an issue could have been dealt with under some alternative statutory regime did not mean that it could not be dealt with under a planning application. Whether the proposed development would result in an increase in crime and disturbance to residents in the area was a material consideration that the inspector rightly took into account, as was the possibility of imposing conditions to avoid such consequences.
The inspector had the authority to redraft conditions for the sake of enhanced clarity or impose conditions to deal with minor matters where the necessity of doing so was obvious and did not call for further representations from the parties. However, he was under no obligation to formulate conditions when the parties themselves had not advanced any. The inspector had rightly identified his concerns on the basis of evidence adduced by the claimant, but imposing conditions to deal with those concerns would be too onerous a duty. He was unable to grant planning permission while outstanding issues were still to be determined. It was not an option for him to grant planning permission on the understanding that the matter would then be referred to the licensing authority, and his refusal was therefore correct.
John Steel QC and Robert White (instructed by Charles Russell, of Cheltenham) appeared for the claimant; John Litton (instructed by the Treasury Solicitor) appeared for the first defendant; Michael Bedford (instructed by Worcester City Council) appeared for the second defendants.
Vivienne Lane, barrister
