Planning permission – Change of use – Noise – First defendant allowing appeals by second defendant against claimants’ refusal of planning permission for supermarket in city street – Whether inspector erring in assessment of noise impact – Whether inspector using flawed approach to measure of noise levels – Whether inspector misunderstanding delivery and servicing plan – Application dismissed
The property was a mixed-use building in the City of Westminster. The upper floors were flats. The ground floor consisted of three retail units, one of which (“the site”) had planning permission for A1 retail use restricted to non-food activities. The second defendant made two applications for planning permission to operate the site as a supermarket. That involved the lifting of the restriction to non-food retailing and building works at the back of the premises in order to provide a service entrance for deliveries to the supermarket. The applications were refused by the claimant local planning authority on the grounds that the arrangements for deliveries at the rear of the site conflicted with policy in relation to the promotion of pedestrian movements and the viability of vehicular movements and would have an unacceptable impact on the residential amenity of those living in the flats. The second defendant appealed against those decisions.
An inspector appointed by the first defendant held a public inquiry, including a site visit, and allowed both appeals. The claimants applied under section 288 of the Town and Country Planning Act 1990 for an order quashing his decision as unlawful. They contended that: (i) in his approach to the assessment of the noise impact of the proposed development, the inspector had not dealt with the matter on the basis of the evidence and the arguments before him but had introduced a new process of assessment in breach of natural justice; (ii) the inspector’s approach had been flawed in that he had misunderstood the table of measures used to evaluate noise levels; and (iii) the inspector had misunderstood the effect of the proposed delivery and service plan (DSP).
The defendants argued that the inspector had been working on the material before him, that he had correctly interpreted it, had done nothing in relation to the figures that he was not entitled to do and had properly exercised his judgment in deciding whether the noise impact would be unacceptable.
Held: The application was dismissed.
An application to the court under section 288 of the 1990 Act may be brought only on normal public law grounds and was not an opportunity for a reconsideration of arguments on the planning merits of the inspector’s decision. The inspector had to proceed on a correct understanding of any relevant development plans and of any evidence, but within that context he was entitled to reach his own planning judgment. The court provided the authoritative interpretation of the meaning of any relevant policy document but would not interfere with the inspector’s planning judgment, which was, in a case like the present, within the exclusive province of the inspector. The inspector responded to the materials and evidence before him and might well be influenced by what he saw on a site visit. He was not bound to accept the opinions of experts but reached his own conclusion. His expression of that conclusion in his decision needed to be reasoned, but the decision letter needed to be read as a whole, and with the understanding that it was addressed to parties who were aware of what the issues were. Thus, the inspector did not need to set out matters from first principles, but only such reasons as would enable those involved to understand the way in which the inspector reached his decision on the issues that were contested: Seddon Properties Ltd v Secretary of State for the Environment Transport and the Regions (1978) 42 P&CR 26, Westminster Renslade Ltd v Secretary of State for the Environment, Transport and the Regions (1983) 48 P&CR 255, Tesco Stores Ltd v Secretary of State for the Environment, Transport and the Regions [1995] 2 EGLR 147, R (on the application of Newsmith Stainless Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74; [2001] PLSCS 30, South Bucks District Council v Porter (No 2) [2001] 1WLR 1953 and Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; [2012] PLSCS 69 applied.
In the present case, the decision, read as a whole, showed a properly balanced approach both to the evidence and to the arguments that were before the inspector. The inspector’s task was to evaluate the impact of adding the noise of deliveries to the existing noise. In order to do that he had, first of all, to decide how the baseline of existing noise was to be established; then he had to see how appropriately to add the extra noise of deliveries to that base in order to discover the impact of the proposed development. Reference to the material before the inspector, which he did not need to set out because it was known to all parties, showed that the impact of the increase in noise fell in the middle of the six-level table to which he had been referred. The inspector had remarked that any increase in noise levels was undesirable but had to judge whether the proposed increase was unacceptable in what was, as he had found (and was not uncontested), not the quiet backwater described by the claimants but already a noisy city street. His judgment had been entirely proper on the material before him. There was no discernible defect of natural justice, nor were there reasons given by the inspector insufficient to enable those concerned to understand why he had come to the decision that he had.
Saira Kabir Sheikh (instructed by Westminster City Council) appeared for the claimants; Justine Thornton (instructed by the Treasury Solicitor) appeared for the first defendant; Natalie Lieven QC (instructed by Dentons UKMEA LLP) appeared for the second defendant.
Eileen O’Grady, barrister
