In Forster v Secretary of State for Communities and Local Government and another [2016] EWCA Civ 609 permission was granted on appeal for a residential development next to a pub also operating as a nightclub and film shoot location. The pub’s owner challenged under section 288 of the Town and Country Planning 1990, primarily on the grounds of an alleged failure to consider harm to the viability of the pub business due to possible future complaints from residents of the proposed flats about noise from the existing nightclub use. The inspector concluded that noise levels for the residents would be reasonable given the proposed mitigation measures, but did not address the potential consequences for the pub of legal complaints about noise by residents.
The noise challenge was dismissed in the High Court, on the basis that residents would be unlikely in the circumstances to complain about noise and the Inspector was entitled to discount the “spectre of future proceedings” and could not be “criticised for not venturing into the law of nuisance”. Laws LJ overturned the refusal of permission to appeal to the Court of Appeal at an oral hearing.
In dismissing the challenge on the noise ground, the Court of Appeal nonetheless concluded that the impact of a prospective planning permission on the viability of a neighbouring business may in principle amount to a material planning consideration. In relation to noise, the extent of amenity effects cannot be used to exclude the possibility of later claims which may impact on that viability. The judgment is clear that such arguments must be raised with a “sufficient degree of particularity and supporting evidence” to allow an “objective and reasoned conclusion” to avoid a “merely speculative “, “unorthodox and illegitimate” exercise. Objectors to noise sensitive uses adjacent to established noisy uses therefore need to adduce clear evidence before the decision maker must investigate and then weigh the gravity of the risks of licensing and nuisance claims to viability.
The appellant raised concerns about the loss of light to rooms in the pub, including a staircase used for location shoots. Although the significance of light to the locations shoot use of the staircase (and therefore the viability of the combined pub/nightclub/locations business) was noted in the original objections to the LPA, the appellant’s submissions to the Inspector only noted the loss of light. The inspector rejected any unreasonable effect in lighting terms, based on the evidence (which related only to the rooms). By failing to join the dots between the original objections and representations on appeal, the Inspector was held to have neglected the abnormally sensitive use.
The case arguably raises the bar for decision makers on appeal by suggesting that they must cross reference parties’ formal appeal case with their original objections and triangulate to ensure every point is covered as if it were a main issue.
Roy Pinnock is a partner in the planning and public law team at Dentons
