R. v. South Cambridgeshire District Council exp. Salek

Transcript date:

Friday, October 22, 1999

Matter:

Court:

High Court

Judgement type:

Substantive

Judge(s):

Richards J

IN THE HIGH COURT OF JUSTICE CO/2028/99

QUEEN'S BENCH DIVISION

(CROWN OFFICE LIST)

Royal Courts of Justice

Strand

London WC2

Friday, 22nd October 1999

B e f o r e:

LORD JUSTICE RICHARDS

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REGINA

-v-

SOUTH CAMBRIDGESHIRE DISTRICT COUNCIL

EX PARTE LILLIAN ADA SALEK

- - - - - - -

(Computer-aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Telephone No: 0171-421 4040/0171-404 1400

Fax No: 0171-831 8838

Official Shorthand Writers to the Court)

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MR D EDWARDS (instructed by Richard Buxton, 40 Clarendon Street, Cambridge, CB1 1JX ) appeared on behalf of the Applicant.

THE RESPONDENT did not appear and was not represented.

J U D G M E N T

(Draft for Approval)

Friday, 22nd October 1999

JUDGMENT

MR JUSTICE RICHARDS: This ia an application to challenge a conditional planning consent granted by the South Cambridgeshire District Council on 8th April 1999 pursuant to a resolution of the Council's Planning Committee on 7th April 1999.

The matter comes before me as an application for permission, but, for the reasons that

I will cover in this judgment, I have granted permission and I am dealing with it here and now as a substantive hearing and giving my decision on the substantive application.

The factual background is as follows: on 6th July 1998, conditional planning consent was granted by the Council in respect of the use of premises at 44 Station Road, Histon, as a restaurant. The consent was granted subject to the following conditions with reasons for those decisions set out immediately after each condition:

"1. The use hereby permitted shall be discontinued and the land restored to its former condition on or before 30th June 2001. (Reason - In order that the effect of the development upon the amenities enjoyed by neighbouring residents, highway safety and amenities to the neighbouring area can be assessed during this period so that any future application can be decided upon this assessment).

2. The restaurant shall only be open between the hours of 12.15 pm - 2.15 pm and 6.00 pm - 10.30 pm and all customers shall leave the premises prior to 2.45 pm or 11.00 pm. (Reason - In order that the effect of the development upon the amenities enjoyed by neighbouring residents, highway safety and the amenities of the neighbouring area can be assessed during this period so that any future application can be decided on this assessment).

3. This permission shall relate to

a maximum of 16 covers only and that area of the ground floor measuring 3.6m by 3.6m approved for restaurant use as shown on plan No.314/2 shall be clearly defined and separated from the remainder of the ground floor in accordance with details which shall have previously been submitted to and approved in writing by the Local Planning Authority. Such details to be agreed shall be implemented prior to the restaurant use commencing and shall thereafter be retained at all times unless otherwise agreed to be varied in writing by the Council.

(Reason - To ensure that the scale of the restaurant is not excessive [bearing] in mind the other permitted uses of the site and the fact that the premises are situated on a busy road junction in a predominantly residential area)."

Those are the three relevant conditions.

On 1st April 1998 an application was submitted for a larger ground floor area than authorised by the permission that I have described. This was considered by the council to be unacceptable, owing to the intensification of use and its impact upon neighbouring properties. The application was apparently withdrawn before a formal decision was reached.

On 8th February 1999, however, an application was received by the Council for the removal of Condition 1 attached to the 1998 consent, that is to say, the temporary Condition and the modification of Conditions 2 and 3 so as to extend the opening hours of the restaurant and increase the number of covers that might be provided there.

The application was considered by the planning committee on 7th April 1999. But the committee had before it a report of the Planning Director which set out a description of the site, the relevant history, relevant policy, the result of consultations and representations and other relevant matters. I would refer in particular to the comments first of the Chief Environmental Health Officer who had recommended that the application be refused in so far as it related to an extension of opening hours. He said in relation to that:

"It is my opinion that the location is more residential than most of the other food premises which the agent has listed on page 5 of the explanatory letter dated 4th February 1999. There is a single commercial property more or less opposite number 44 in Station Road but the rest of the properties surrounding number 44 are residential dwellings. In addition, the first floor of number 44 is separately let as a flat which could be seriously affected by any increase in evening activities.

During the period of operation of the restaurant, there has not been a single deleterious impact on the neighbourhood but this may be due to the existing conditions regarding trading hours and the limit on table covers.

I am very nervous about extending the evening closing times because I would not wish to cause the premises to become a resort for people leaving public houses in the area at closing time. On balance, I consider that the existing time restrictions should remain in order to safeguard the amenity of the residential area. The requested increase in table covers from 16 to 24 in a slightly larger but still defined area of the premises should not cause a significant disturbance. I would therefore not oppose such a move but I consider that it would be reasonable for the proprietor to display notices within the premises adjacent to the main door, requesting guests to leave the premises quietly so as not to disturb the nearby residents."

He also observed that his suggestions were made with the intention of minimising the disturbance caused by allowing more business use of the premises.

The Director of Planning provided the Council with his own comments and recommendation. In his written report he recommended that Condition 1 be removed so as to render the development authorised by the 1998 consent permanent, but he recommended that the hours of operation of the restaurant should not be extended as requested and that the number of covers should not be increased.

He said this:

"The application proposes 3 changes: The first is to remove the temporary consent for the site. Government advice under Circ. 11/95 is that temporary consent should not be renewed. The level of activity arising from the restaurant has, as far as

I am aware, not caused regular problems to neighbouring properties. However, I believe this is due to the restricted seating (covers) and hours of operation which has led to alleged infrequent use of the restaurant. If the existing restrictions continued to apply I believe it would be reasonable to grant

a permanent permission. However, should members be of the opinion that the increase in numbers of covers and extended hours of opening is acceptable a temporary consent may be appropriate to assess the intensification of use of the site.

The second change proposes to relax the hours of use of the restaurant. Presently, the restaurant can take customers up to 10.30 pm but must close by 11.00 pm. The increase in hours of use has the potential to cause unacceptable noise and disturbance to the residential properties in such close proximity to the site (including the unrestricted flat above the premises). If customers are allowed to enter the site until 11.30 pm then they could leave anytime up until 12.30 - 1.00am. In summertime when nearby residents have their windows open this level of use will be likely to cause harm to neighbours amenity. Given the concern from the Chief Environmental Health Officer and Policy ES6 of the Deposit Draft Local Plan, the existing restrictions on hours of use are appropriate and should not be relaxed in this predominantly residential area.

The third change relates to the number of covers (seats) which is proposed to be changed from 16 to 24. The existing permission restricts the use of the restaurant to an area of no greater than 3.6 square metres. I have difficulty in seeing how additional seating can be accommodated without increasing the size of the restaurant. I have requested a plan from the agent identifying the seating arrangement. The restaurant presently is not the main use of the ground floor given the space used for A1 kitchen/store to rear (which is used for a delivery service). An increase in floor area to accommodate the extra seats could change the nature of the site giving an appearance of a restaurant, rather than an A1 shop with small restaurant area attached. This, I believe, would also result in an intensification of use of the site with potential undesirable consequences to neighbouring properties through increased noise and general disturbance. There may also be parking implications if the floor area for the restaurant is increased.

On the whole, I believe it would be unreasonable not to grant planning permission on a permanent basis for the restaurant as long as the conditions on numbers of covers and hours of operation remain. The increase in hours of use and seats as proposed will result in unacceptable noise and general disturbance to nearby residential properties. On this basis the application as submitted is unacceptable."

In a further written report (and it would seem in his oral reports to the Committee) the Director of Planning revised his position to a limited extent, in that he accepted that there was a sufficient case to justify an increase in the number of covers from 16 to 24 for a temporary period of one year, in order that its affects could be monitored and any extension into a permanent permission for a large number of covers should be dependent on the monitored impact.

He indicated that, nonetheless, a plan showing the area to be used needed to be agreed prior to the grant of such approval. He adhered to his view that the condition concerning opening hours should not be altered.

The Planning Committee, when reaching a decision on the application, rejected the advice of the Director of Planning and of the Chief Environmental Health Officer. The Committee resolved that there should be a permanent grant of permission for use of premises, on the basis of an extension in the number of covers provided and in the opening hours.

Planning consent was granted subject to two conditions:

"1. The restaurant use hereby permitted shall be limited to no more than 24 covers." (Reasons - To protect the amenities of adjoining residents).

2. The restaurant shall be closed and the restaurant area vacated by customers between 23.30 hours and 08.00 hours.

(Reason - The site is within a predominantly residential area. The use of the restaurant outside the permitted hours would be detrimental to the amenities of the neighbouring residents by reason of general noise and disturbance)."

It was that decision which was the subject of an application to this Court. The application was made promptly. It came before Mr Justice Ogdel for consideration on the papers. He pointed out that there was no indication that the Council had been given an opportunity to comment or to address the matters that now form the basis of the challenge and he adjourned the matter from oral hearing on notice to the Council to enable such comments to be provided.

The Council provided extensive comments in

a letter of 24th August 1999 from the Head of Legal Services -- I shall come back to the detail of those comments in a moment. Procedurally, however, the letter had made clear that the Council had no intention of appearing so as to make submissions to the Court at an oral hearing whether at the permission stage or at the substantive stage. There was an offer to swear an affidavit or provide a statement of truth to verify the matters set out in the Council's letter; that is unnecessary in the circumstances. The letter made clear that if the Court wished to treat the permission hearing as a substantive hearing of the application, the Council was content for that course to be adopted.

Full details concerning the proceedings and the stance taken by the Council have, I am told, been provided to the interested party, the owner or operator of the premises that are the subject of the planning permission. He has intimated no intention of appearing in order to make submissions to the Court. In all the circumstances, I have taken the view that if I am satisfied that permission should be granted in this case, as I am, then I should go on forthwith to consider the substantive application. That seems to me to be the most efficient means of dealing with the case. It affords with the position adopted by the Respondent. It will enable substantial reduction in overall costs and Court time, and, to my mind it will deal with the matter in a way that is proportionate to the nature of the case. This is not a case of any general importance. It falls to be decided on a very narrow basis and is a matter of very local interest, though I fully recognise the concerns of the Applicant which are set out in her own witness statement.

I therefore go on to consider the substantive issues in the case. For that purpose, I must examine in a little more detail the letter of 24th August 1999 from the Council. That letter sets out the planning history of the site, it recounts, in some detail, the objections that had been received at the time, it refers to the advice given to the committee both in the written report and in the oral report of the Director of Planning and it goes on to explain the Committee's decision. It states that members considered the matter very carefully. The debate lasted more than 10 minutes. Members had the report and the plans in front of them. The full plans were displayed outside the committee room. Passing over certain further details that are given, I quote in particular the following passage:

"Members noted that in addition to a Fish and Chip Shop/Chinese Take-away in Station Road which closed at 11.00 pm there were two other restaurants in Histon which were open until 11.30 pm as well as the four Public Houses which affectively closed at 11.30 pm. Members felt it was entirely appropriate to grant the application bearing in mind the previous three years' trial period. The Planning Committee decision was overwhelming."

In the next paragraph it is stated that even the Local Member supported the application for the modest expansion of the restaurant. Members

"... were fully aware of the neighbourhood, the nature of the application and of the past history, were informed about impact on local amenities by Officers of the Local Member, and had plenty of information upon which to base their decision. They used their common sense about potential impact on amenity and the potential effect of altering the restaurant restrictions previously imposed. In particular, they considered that the absence of any recent complaint was most significant and noted the absence of any substantive complaint about the restaurant business per se. They did not feel that

a longer trial period or temporary permission, even in respect of the extended hours or increased covers would be of any assistance in forming their decision, providing these conditions were imposed and the earlier relevant conditions rehearsed. They attached appropriate weight to all matters and their decision cannot be said to be perverse in any sense. They considered every aspect of this matter that was relevant to the decision and did not consider any aspect which was irrelevant."

The letter goes on to make clear that if the Council has to reconsider the application then the author of the letter cannot see how the Committee could come to any different decision than to grant the application subject to the same conditions.

Mr Edwards, on behalf of the applicant, recognises that it is for the members of the Committee to make the relevant planning judgment in a matter of this kind, and that they are not bound by the judgment made and recommendation made by the Planning Officer or Environmental Health Officer. He submits, however, that in the circumstances of this case, there simply was not enough evidence before the committee upon which they could properly have based a judgment different from that reached by the officers. He refers me to the decision in R v Newbury District Council, ex-parte Blackwell 1998, a journal of Planning Law, at 680 as an example of a case where a decision was quashed because the relevant authority did not have sufficient evidence to justify a decision reached contrary to the recommendations of its officers.

In this case, Mr Edwards points out (and as is plain from the material before me) there had been previous recognition of the sensitivity of the area surrounding the subject premises because of the residential nature of that area and the need to protect the amenity of the residential premises; but that had been an expressed reason for the imposition of the Conditions in 1998. The only information which the Committee had before it indicated, it is submitted, that the permanent increase in the hours of operation and increase in size of the restaurant would be unacceptable in terms of the impact on residential amenity, including matters of noise and traffic disturbance.

The basis upon which the Planning Officer, the Director of Planning and the Chief Environmental Health Officer have reached their views is apparent from the parts of the reports to which I have already referred.

Although there are some differences of detail between them, there is, self-evidently, an absence of uniform support on the part of those officers for permanent extension to opening hours and in the seating capacity of the restaurant.

It is submitted that the Committee simply lacked evidence upon which they could properly form the view that the permanent extension of opening hours and of the seating capacity of the restaurant would have no unacceptable impact upon the amenity of the residential premises in the neighbourhood.

It is said that although the letter of 24th August refers to the members as being fully aware of the neighbourhood, there was nothing to show that they were familiar with the full physical layout of the area or of the particular operation of the particular restaurant. They had not carried out a site inspection, they had not asked their officers to carry out any further inspection or monitoring; they apparently placed reliance, as the letter of 24th August shows, on the existence of similar premises in Histon with hours of opening corresponding to those which the Committee decided to apply in relation to the subject premises. However, that was a matter which had been specifically addressed by the Chief Environmental Health Officer in his comments where, as I have already indicated, he had taken the view that such premises were distinguishable because this was a "more residential" location.

I have given careful consideration to those submissions and to the contents of the letter of 24th August. That letter is very helpful to the Court, though, inevitably, not as helpful as oral submissions might have been in enabling the Court to test the details of the matters put forward on behalf of the council.

I have concluded that this is plainly an arguable case, but, as to the substance, it is only a marginal case. The Committee were plainly entitled to take the view on the evidence that permission could be made permanent for

a restaurant of the existing size, that is to say, the size permitted by the 1998 Permission in terms of seating and area and with existing opening hours. There was insufficient evidence of problems arising as to make that in any way an unreasonable view but the officer supported it and Mr Edwards, on behalf of the applicant, has not sought to take issue with that.

The only real question relates to the increase in the size of the seating capacity and the extension of opening hours. As to the former, the Director of Planning was recommending a temporary period in order to monitor the effects, the Chief Environmental Health Officer was not opposed to the extension but was still of the view that there should be a defined area before the grant of permission. As to the latter, both officers recommend against an extension because of the potential impact on the amenity of the residential area.

I fully accept that the final judgment must be that of the Committee, not of the officers, and that in addition to taking into account specific information placed before them, they were entitled to use their common sense and their knowledge of the area. But it does seem to me that there is force in the argument that they did not have sufficient information before them to justify

a departure from the more cautious recommendation of their officers. There is no evidence that they had specific knowledge of the site or of the operation of the restaurant; they had not carried out a site view. If account was to be taken, as it was in fact taken, of the other facilities in Histon with later closing times, then it was necessary at the same time to take careful account of the fact that the subject site was in a more residential location as the Chief Environmental Health Officer had pointed out.

There is no indication in the letter of 24th August that that countervailing consideration had been borne properly in mind. The absence of substantive complaints related of course to the existing size and opening hours and is not a necessary indicator of the position if either were to be extended. No evidence so far as I can see had been addressed to the question of all-day opening as was permitted by the Committee pursuant to Condition 2 of the Permission they granted.

There was, as it seems to me, only limited objective evidence before the Committee concerning the affect of noise, traffic disturbance and the like, that would result from the extensions in size and opening hours that the Committee permitted. The matter, as I have indicated, is finely balanced; but I have come down in favour of the view that the Committee did not have enough information and had not made sufficient inquiry to justify the grant of permanent permission for a restaurant larger in size, with no defined seating area and with longer opening hours than was permitted by the existing grant. I do not think that there was material before the Committee that would enable it to reach a reasonably informed judgment of the kind that would justify the grant that they made. I will therefore quash the decision which will fall to be reconsidered by the Committee.

The letter of 24th August indicates that the Committee will inevitably come to the same conclusion next time round. It will be for the Committee to reconsider the case in the light of this judgment and all the evidence before it at the time of reconsideration. I am sure that the Committee will approach the matter responsibly and with open minds, as is their duty, and that they will give particularly careful consideration to the question whether there is really enough evidence before them to justify the permanent grant of permission for restaurant use with the extended seating capacity and extended opening hours, or whether, for example, conditions should be framed that would enable the effect of such extensions to be monitored before a decision is made on whether to make the extensions permanent.

I will direct that a copy of the transcript of this judgment be obtained at public expense and with expedition and be provided both to the Council and to the third party, the owner or operator of the restaurant, since I have adopted an unusual course in proceeding in this way to deal with the matter substantively. I will give the third party liberty to apply within seven days if he wishes to seek to set aside the decision that I have made. I proceeded to deal with it substantively on the understanding that the third party had effectively indicated an absence of intention to appear. If that is a misapprehension on my part then the third party must have the opportunity to appear in order to seek to challenge the matter. He will, however, have to bear in mind the cost implications if he is unsuccessful in any such attempt.

MR EDWARDS: There are two points, my Lord, firstly, the matter of cost. I would ask that the Respondent Council pay the Applicant's cost of this matter. My Lord, I would also ask if your Lordship is minded to make that order for legal aid taxation.

MR JUSTICE RICHARDS: Yes. What I will do is I will make an order for cost in favour of the Applicant. Given that the Council is not here, in relation to that too I will give them seven days liberty to apply, in case they have anything to say on the question of costs. I find it difficult to see what they could say in the circumstances but just to make it clear that they are not being shut out from the opportunity to address the Court on that issue.

It seems to me that if there were an application by either the Council or the third party, the one in relation to cost, the other in relation to the substance, it would be desirable that the matter come back before me and I will direct that it should do so if at all possible.

MR EDWARDS: One other point which Mr Buxton my instructing solicitor raised, your Lordship indicated that the interested party should have seven days to apply, Mr Buxton suggests as the matter is of some importance should that be seven days from receipt of the transcript?

MR JUSTICE RICHARDS: That is what I intended, yes. It should be seven days in receipt of the transcript, likewise the Council in relation to application as regards the cost order because they must plainly have the opportunity to study my reason before they reach a decision.