England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
(MR JUSTICE BEAN)

		Royal Courts of Justice Strand, London, WC2A 2LL
		18th December 2008

Lord Justice Dyson:

1. This is a renewed application for permission to appeal against the decision of Bean J on 29 July 2008 whereby he dismissed an application by the appellant to quash the decision of a planning inspector contained in a letter of 7 November 2006. The appellant had sought to appeal against the refusal by the local planning authority to vary conditions on planning permission which prevented him from using the premises -- an Indian restaurant -- as a takeaway and from operating it beyond the hours specified in the planning permission.
2. The planning permission had been granted in 1996 to the previous owner of the premises for the premises to be used as a restaurant, subject to the conditions that the premises were to be used for no other purpose than as a restaurant, thereby preventing the operation of a takeaway and delivery service. It was also subject to the condition that the restaurant was to operate between 17:00hrs and 23:00hrs Monday to Saturday only, with no opening on Sunday. Despite these conditions the previous owner used the premises as a restaurant and takeaway and was open seven days a week and in excess of the specified hours. The appellant bought the business in November 1997 and ran it from December 1998. He continued to use the premises as a restaurant takeaway but only between 17:00hrs and 23:30hrs.
3. In the middle of 2005 he made an application for variation of the conditions to which the planning permission had been subject, including an application to extend the permitted opening hours of the restaurant to include Sundays and, perhaps more importantly, to include the operation of a takeaway service between 17:00hrs and 23:00hrs seven days a week. This application was rejected on 16 August 2005. The appellant appealed to the Secretary of State, who appointed the inspector. The inspector dismissed the appeal. He held that in view of the fact that there were already three takeaways in the vicinity, there was already likely to be a significant level of noise in the comings and goings of customers in the evenings. He said at paragraph 13 that he agreed with the original planning inspector that:

"…even ancillary takeaway use would be likely to significantly add to the noise and disturbance experienced by the residents of the first floor flats in both parades, particularly in the late evening on Mondays to Saturdays and on the Sunday when residents would have a reasonable expectation of a quieter environment."

4. The principal argument advanced on behalf of the appellant to the inspector, since repeated to the judge and now again in support of the application for permission to appeal, was that the premises had been used for takeaway purposes for something in the order of seven or eight years, and the local residents had not objected on the basis of noise or disturbance. The argument was that that was in effect conclusive evidence that the concern which had given rise to the restriction imposed on the planning permission in the first place had proved, in the event, to be unfounded. It was also argued that the history of the user over that period demonstrated that the concern of the previous inspector that takeaway use would be likely to significantly add to the noise and disturbance also was unfounded.
5. The inspector dealt with that point at paragraph 15. He first of all recited the argument and then said:

"However, there is no guarantee that the use would continue to operate in this way over time. I do not consider that a condition seeking to limit the amount or proportion of trade from customers visiting the premises would be enforceable. A condition requiring the restaurant to serve only a specific type of food would be unduly onerous and therefore unreasonable. In addition, it could be difficult to devise a condition that would be precise and capable of enforcement."

He therefore was not moved by that argument and dismissed the appeal. He also dismissed the appeal in relation to the refusal to permit the restaurant to open on Sundays on the grounds that this would give rise to additional noise and disturbance and cause harm to the living conditions of the occupants of neighbouring flats. The appellant applied under Section 288 of the 1990 Act for an order to quash the decision. Bean J dismissed that application on the grounds that he could detect no error of law in the approach of the inspector.

6. Mr Leigh submits that the decision of the inspector was wrong in point of law. Although he was reluctant to agree that he had to demonstrate that the decision of the inspector was perverse, it seems to me that that is the only basis upon which he could argue that there was an error of law in this case. It is plain that the inspector was aware of the principal argument advanced on behalf of the appellant and that he took it into account. Mr Leigh says that it is insufficient simply to utter the mantra of rehearing the argument; more was required. I do not agree. It seems to me that Mr Leigh does have to go so far as to show that, having taken that argument in to account, no reasonable inspector could have failed to allow the appeal. The facts of the experience of the seven or eight years, when the takeaway use was in operation, so overwhelmingly demonstrated that the feared nuisance and disturbance was ill-founded that no reasonable inspector could have reached the conclusion that this inspector reached.
7. I am not surprised that Mr Leigh was reluctant to go that far because, in my judgment, such an argument would have no prospect of success. The inspector, it seems to me, was entitled to say, as a matter of planning judgment, that there was no guarantee that the use would continue to operate in the way that it had over time, and this was a matter of planning judgment on which planning inspectors might take different views, but I can see no error of law here.
8. I well understand that the appellant feels aggrieved that he has been running a takeaway for seven or eight years, apparently without complaint. From his point of view I can see that it seems unfair that he should now be required to stop that use on the grounds that there is a possibility that the takeaway user will cause noise and annoyance and disturbance, at any rate, of which there has been no complaint thus far. But, as I say, this is a matter of planning judgment, and the hurdle that the appellant has to overcome in demonstrating that there has been an error of law is a high hurdle and in my judgment it is not arguable that in this case it has been surmounted.
9. I would therefore dismiss this application.

Order: Application refused