Planning permission — Business use — Conditions imposed — Use continuing beyond permitted hours — Enforcement notice issued — Appeal dismissed by inspector — High Court holding that inspector entitled to conclude that condition as to opening times should be upheld — Appeal dismissed
Planning permission was granted in 1991 in respect of premises at 20 Market Square, Amersham, Buckinghamshire, for retention of change of use to a coffee shop. It was provided that the use thereby permitted should not take place other than between the hours of 0800 and 2200 hours Mondays to Saturdays and between the hours of 0930 and 2100 on Sundays (condition 4). It was alleged, inter alia, that the use continued beyond the permitted hours and an enforcement notice was issued by the local authority on March 31 1992.
The applicant appealed against the notice. He argued that condition 4 was to be construed as meaning that orders for food might be taken up to 2200 hours on Mondays to Saturdays and 2100 hours on Sundays and that service and consumption of food might take place thereafter. The inspector took the view that the proviso in condition 4 that the use should not take place outside the permitted hours included the service and preparation of goods, the presence of customers whether eating or shopping, relaxing to digest their food or paying for services rendered, clearing, cleaning, washing up and tidying thereafter; in short, the operation of use. He dismissed the appeal in respect of condition 4. The applicant appealed.
Held The appeal was dismissed.
1. The meaning of the condition was clear: it was the total use, not only the eating of food and other services rendered, but also clearing, cleaning, washing up and tidying thereafter.
2. It was reasonable for the inspector to consider that 2200 hours was the time by which all those activities should come to an end so that other residents, including children, should have peace and quiet thereafter. It was important to bear in mind that the premises concerned were not in central London but Amersham, a comparatively quiet place. It would be improper for the court to substitute its opinion as to what was late at night for that of the inspector.
3. On the evidence the inspector had taken into account all matters raised, including the adverse consequences for the employees of the business and was entitled to take the view that the condition was reasonable and necessary and reasonably related to the development proposed: see Newbury District Council v Secretary of State for the Environment [1981] AC 578 together with the advice contained in Circular 1/85 to similar effect.
4. The applicant had complained that the inspector erred in failing to take account of the consequences of the continuation of use out of hours when limited to the activities of staff, ie cleaning, tidying up, etc. However, the applicant had asked the inspector to consider the case in the round. There was no distinction sought to be made between the components or sources of noise, ie eating of meals and clearing up. The inspector had reasonably concluded that residents were not unaffected by the noise, but that their interests were sufficiently protected to allow the use to operate up to 2100 or 2200 hours as the case may be. The inspector’s reasoning was clear and it was unnecessary to add anything.
Meyric Lewis (instructed by Kingsford Stacey, agents for Peter Knipe & Co, of Chalfont St Peter) appeared for the applicants; Alun Alesbury (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment; the second respondent did not appear and was not represented.
