Town and Country Planning Act 1971–Appeal from decision of Forbes J upholding a decision of the Secretary of State for the Environment who had dismissed an appeal against an enforcement notice and a refusal of planning permission–Former restaurant in Walker’s Court, Soho, used for the purposes of a coin-operated ‘peep-show’–Planning authority, Westminster City Council, served an enforcement notice requiring removal of all equipment, fixtures and fittings used in connection with the peep-show and refused planning permission for the continuance of the use–Inspector appointed by Secretary of State to hear occupiers’ appeal reported that in his view the notice was valid and that planning permission should not be given–Secretary of State dismissed appeal–On appeal to the High Court the appellant occupiers attacked the inspector’s report on the ground that he had applied the wrong test–They submitted that, although the inspector had noted that there were already a number of sex-related and sex-orientated businesses in Walker’s Court, some of them authorised, he had wrongly assumed that there had not been a change in the character of the street–Forbes J dismissed the appeal, holding that the inspector had in fact taken into account the existing character of the street and the existing sex-related and sex-orientated business uses–He had, however, come to the conclusion that the change of use of the former restaurant to a live peep-show had had an adverse effect on the character of the area, its functioning as an important pedestrian link and on the amenity of residents–Held, affirming decision of Forbes J, that the inspector was entitled to say, having looked at the whole situation, that the appellants’ activities were going too far–The inspector had applied the proper test and come to a proper decision–Appeal dismissed
This was an
appeal by Lewstar Ltd and others, occupiers of premises in Walker’s Court,
Soho, London W1, against a decision of Forbes J, dismissing their appeal
against orders by the Secretary of State for the Environment.
David Smith
(instructed by Jacobs Blok & Kane) appeared on behalf of the appellants; S
Lawson Rogers (instructed by the Treasury Solicitor) represented the Secretary
of State (the first respondent) but was not called on; Westminster City Council
(the second respondent) were not represented and took no part in the
proceedings.
Giving
judgment, WALLER LJ said: This is an appeal from a decision of Forbes J given
on May 3 1983, when he heard an appeal against the decision of the Secretary of
State for the Environment refusing planning permission and granting an
enforcement order.
The facts are
these: there are premises in Walker’s Court, Soho, which are occupied by the
appellants. At one time these premises were part of a larger set of premises
which consisted of a restaurant, but in 1980 the premises were subdivided and
planning permission was given for various uses of parts of the premises.
However, there was one part of the premises which was left alone, and that has
now been used for what is described as a ‘peep-show’–a coin-operated review
bar. It is in Walker’s Court, and what happens is this, that on going into these
premises money is put into a coin-operated shutter in a booth which enables a
person to look through the aperture into a room which is lined with mirrors in
which there is a nude female dancing. Access to the room for those who are
waiting to dance is from another direction–but I need not deal with the
organisation which is involved in that. It is fully set out in the judgment of
Forbes J and does not need repeating here.
The appellants
were served with an enforcement notice telling them to remove all machinery,
equipment, fixtures and fittings. The appellants then applied for planning
permission for the use to which they were putting these premises. Planning
permission was refused. An appeal was made to the Secretary of State and, on
August 4 1982, the inspector appointed by the Secretary of State made his
report. His conclusion was that planning permission should not be given and
that the enforcement notice was a good enforcement notice.
On September
10 1982 the Secretary of State wrote to the appellants quoting parts of the
inspector’s report and refusing the appeal which had been made to him. The
Secretary of State quoted five paragraphs from his inspector’s report–namely
paras 47 to 51–and I will read para 51 because Mr Smith, who appears on behalf
of the appellants before us, has laid great emphasis upon it.
It does not
seem to me that because there are now a number of sex-orientated businesses in
Walker’s Court that these should be accepted as establishing the character of
the street even though several of them are authorised. To do so would be a
negation of the planning process. In my view the change of use of the former
restaurant to a live peep-show has had an adverse effect upon the character of
the area, its functioning as an important pedestrian link and upon the amenity
of residents. It is, therefore, contrary to the policies contained in paras
7.37(iii) and 7.45(v) of the recently adopted district plan.
I should add
that the inspector had made an inspection of Walker’s Court and therefore had
had an opportunity of seeing the use which was made of this passageway between
Brewer Street and Berwick Street by a very large number of people.
Mr Smith has
sought to submit to this court that the inspector, in the paragraph which I
have quoted, did not apply the right test. He has submitted that, taking that
paragraph by itself, the inspector is assuming that there had not been a change
of character in the street, and therefore this peep-show should be removed. Mr
Smith has drawn attention to the fact that, in the appellants’ case, they say
there was some change in the character of the street–although partially
unauthorised.
That argument
was made initially before Forbes J, because at p3 of his judgment he says:
At the
beginning of his argument, Mr [J] Smyth [QC] really had to retreat from the way
in which ground (i) of those grounds is expressed because it is perfectly clear
from the inspector’s report that he did in fact take into account the existing
character of the area and the existing lawful sex-related or orientated
business uses. All that can be said is that he did not take the view of those
matters which was being urged upon him by the appellants. Therefore, Mr Smyth
altered his approach on ground (i) by saying, in effect, that he was arguing
that no reasonable inspector, properly instructing himself, could have come to
the conclusion which the present inspector did.
Before us Mr
Smith has valiantly sought to repeat the argument from which Mr Smyth had to
retreat before Forbes J, and in my view it is quite impossible to repeat that
argument.
It is clear
from the paragraph which I have quoted from his
account the existing character of the area and ‘the existing lawful sex-related
or orientated business uses’. When the whole of the inspector’s report is read
one can see that that is so.
In my opinion
it really is quite impossible for Mr Smith, valiantly as I have said, to seek
to raise this argument before us. The inspector was perfectly entitled to say,
having looked at the situation, having looked at the sex shops in the
passageway and having looked at the neighbourhood, in the paragraph which I
have just quoted, that this was going too far and was something which should
not be allowed. He said:
In my view
the change of use of the former restaurant to a live peep-show has had an
adverse effect upon the character of the area, its functioning as an important
pedestrian link and upon the amenity of residents.
In my judgment
that was a conclusion to which he was entitled to come. It is only by putting
very great stress upon the first sentence of para 51 that it is possible to
begin the argument which Mr Smith put forward, but when the whole of the
inspector’s report is considered, it is quite clear he applied the proper test
and came to a proper conclusion. I would dismiss this appeal.
GRIFFITHS and
DILLON LJJ agreed and did not add anything.
The appeal
was dismissed with costs.