England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
Sir Michael Harrison
CO/12710/2009

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/07/2011

Lord Justice Etherton :

Introduction

1. This is an appeal in a planning matter from the order of 2 July 2010 of Sir Michael Harrison, sitting as a Deputy High Court Judge in the Administrative Court. The Deputy Judge dismissed the application of the appellant, Theodoros Georgiou, for an order quashing the decision of a planning inspector ("the Inspector") appointed by the first respondent ("the SoS"), who dismissed the appellant's appeal in relation to one of the conditions imposed by the second respondent, the London Borough of Lambeth ("Lambeth"), when granting planning permission in respect of development at 68-70 Clapham High Street, London SW4 7UL ("the Property").
2. The appellant's complaints about the Inspector's decision are that the Inspector did not explain why he rejected the report of the appellant's acoustics expert which had been put forward in support of the appellant's claim that the condition in question was not justified and, further, the Inspector's decision was irrational.
3. Lambeth has not been represented and has made no submissions on this appeal. The effective opposition to the appeal has been by the SoS.

Background facts

4. The Property comprises a restaurant and bar called "Aquum". The appellant and his business partners, having purchased the Property, carried out substantial renovation works, before opening it in March 2009. Retrospective planning permission was granted by Lambeth on 26 March 2009. The approved alterations included bi-folding doors that open onto Clapham High Street. With all of the doors in the open position, the Property is, at the bar and restaurant level, in effect open-fronted. Condition 4 of the planning permission ("Condition 4") stated:

"The existing shopfront which comprises of bi-folding doors shall remain fixed shut throughout the duration of the use of the bar/restaurant."

5. The reason given for the imposition of the condition was:

"To protect the amenities of adjoining occupiers (Policies 7, 29, 33 and 36 of the Unitary Development Plan)."

6. The appellant appealed pursuant to section 78 of the Town and Country Planning Act 1990 ("the 1990 Act"). The appeal was conducted by the written representations procedure. The principal issue was whether or not Condition 4 should be retained in order to mitigate actual and potential nuisance arising from the bar and restaurant use.
7. The appellant submitted as part of his written representations a report dated 7 May 2009 ("the Report") by Richard Vivian, the principal acoustic consultant at Big Sky Acoustics, an independent acoustic consultancy providing advice on environmental noise matters. In paragraph 2.3 of the Report Mr Vivian stated that it was understood that Condition 4 existed for the purposes of preventing noise egress from the Property; and the purpose of the Report was "to establish typical external noise levels in the area and consider if open doors to the building frontage may contribute to increased noise levels outside the premises". In paragraph 4.4 he said that the objective of the assessment was to establish "if operating Aquum with the doors open during the day will cause any nuisance to local residents."
8. Having explained his measurement methodology in section 5 of the Report, Mr Vivian recorded in section 6 the measurement data that had been obtained, and made the following observation:

"6.3 The data shown illustrates typical noise levels in the area in excess of 71dB at all times. I can confidently predict this continuous noise level in the area is due to traffic on Clapham High Street, and at locations where the level is significantly higher than 71dB this is due to increased patron noise associated with queuing and gathering outside premises at night."

9. Mr Vivian then set out his assessment, recommendations and conclusions as follows:

"7.0 Assessment

7.1 Low-level background sound in a restaurant would typically be in the range of 55-65dB. Indeed at levels greater than this voices would need to be raised for conversation so effectively it stops being background music. Therefore it is realistic to assume a maximum sound system level of around 65dBA in the central bar area during the daytime.

7.2 Assuming simplified propagation; a point source of 65dBA would be attenuated by 14dB at a distance of 5m. Therefore at 5m from the bar area music noise levels would be 54dBA and totally masked by any traffic noise.

7.3 With a continuous "masking noise" of 71dBA in the area due to traffic any other low level noise will not lead to a change in average ambient noise level."

8.0 Recommendations

8.1 Based on the measurement data above and my assessment of these premises and other premises in the area, there is no reason with regard to noise, why the frontage of 68-70 Clapham High Street may not be open during the day.

8.2 However any music systems in the premises must be limited to a level so as to not cause disturbance to local residents. This effectively means that it should not be possible to hear music from Aquum at the facade of any noise sensitive premises in the area. In order to achieve this consistently and effectively the internal sound equipment should be configured to have a "doors open" setting which must be used at all times when the doors are open. It is recommended that at this operating level measurements are taken from within the bar and these measurements provided to the Environmental Protection Team at Lambeth for their records.

8.3 Additionally loudspeakers should be positioned within the premises so as not to point at the open frontage area and no loudspeakers should be placed outside.

9.0 Conclusions

9.1 An assessment of the ambient noise levels in the area around Aquum has been carried out and an assessment made of the potential noise impact from the premises operating with the doors open.

9.2 Measurement data indicates that the average noise levels on Clapham High Street are high due to continuous heavy traffic flow. Therefore lower level noise will effectively be masked by traffic noise.

9.3 It is recommended that if the premises are allowed to operate with doors open then the sound system should be configured with a present "doors open" mode to limit the system to low-level operation.

9.4The ultimate "safety net" with any sound system is that the system should be controlled to not exceed the level where there is no disturbance at nearby noise sensitive properties.

9.5Establishing good noise management policies and periodically verifying the sound system operating levels will ensure there is no loss of amenity to local residents by reason of music noise breakout from Aquum."

10. The Inspector carried out a site visit on the afternoon of 8 September 2009 when the doors were open.
11. In his decision letter dated 17 September 2009 the Inspector described the Property and its surrounding area, the works carried out to the Property, Lambeth's concerns, and the appellant's case. He referred to the Report and some of its conclusions and recommendations, and then said the following, so far as relevant, as his reasons for dismissing the appeal:

"8 … Although it [viz. Aquum] was open and had several customers, both inside and outside, my visit occurred at a relatively quiet time in its operation. From the Council's representations, I have little doubt that at other times, particularly in the late evenings and at weekends, and extending into the small hours of the morning, it would frequently be far more busy. This is borne out by representations from interested persons, objecting to the application. Noise sources would include both the customers themselves, and the internal music system.

9. It is a legitimate and commonplace objective of planning policies, including the UDP policies cited by the Council in this case, to attempt to mitigate noise nuisance coming from commercial and entertainment uses, including bar/restaurant premises. This in order to protect the residential amenity of persons living in the vicinity, including in the upper floors of the nearby buildings along Clapham High Street.

10. In my judgement, on the balance of probability there would be likely to be occasions – perhaps many occasions – when with the doors open the noise from Aquum, whether generated by the customers themselves or by the internal sound system, would not be adequately contained within the premises, but would be heard in the immediately surrounding locality, sufficient to constitute a noise nuisance. In my opinion, the doors are needed effectively to screen the interior of the premises from the exterior, and thereby to contain any noise, and that can only occur if they are kept closed. That is why I do not propose to delete condition 4.

11. …

12. I have considered all the other matters raised by the appellant, but they do not alter or outweigh my conclusions on the main planning issue. These are that, in order to mitigate actual and potential noise nuisance arising from the bar/restaurant use, and to comply with the relevant UDP policies, condition 4 should be retained. Accordingly, I dismiss the appeal."

The appeal to the High Court

12. The appellant applied to the High Court under section 288 of the 1990 Act to quash the Inspector's decision on the ground that the decision was not within the powers of the 1990 Act, or alternatively the requirements of the 1990 Act had not been complied with and the appellant's interests had been substantially prejudiced thereby.
13. In his judgment the Deputy Judge summarised ([16]) the main submission of Mr Kevin Leigh, counsel for the appellant, as being that the Inspector failed to grapple with the Report and failed to give any reasons why he disagreed with it; accordingly, the claimant did not know whether the Inspector misunderstood it or what parts he did not accept, and why; and so the appellant was substantially prejudiced. The Deputy Judge said that Mr Leigh alternatively submitted that the Inspector's conclusion was Wednesbury unreasonable because it flew in the face of the Report, which was not contradicted by Lambeth and was not explained away by the Inspector.
14. The Deputy Judge acknowledged ([20]) that the Inspector did not expressly address the conclusions in the Report. He nevertheless rejected the appellant's case because he considered that the Inspector was not bound to do so. He said ([21]) that, having considered the report and having visited the Property, the Inspector exercised his own subjective planning judgement for the reasons expressed in paragraphs 10 and 12 of the decision letter, and he was entitled to do so. The Deputy Judge referred ([22]) to Kentucky Fried Chicken (GB) Ltd v Secretary of State for the Environment [1978] 1 EGLR 139 and Mason v Secretary of State for the Environment and Bromsgrove District Council (1984) JPL 332 as authority that an inspector is not bound to accept an expert's report even if it is unchallenged. He said, at [23]:

"In this case, the inspector was entitled to rely on his own experience, expertise and common sense in exercising his subjective planning judgment, taking into account all the evidence, including the noise report, the residents' objections, the fact that the premises could be open until as late as 04.00 hours, and his site visit where he saw the doors being operated. In my view, the reasons that he gave in paragraphs 10 and 12 of the decision letter were adequate and sufficient and there was no need for him, in the circumstances of this case, to embark on a critique of the noise report"

15. The Deputy Judge then said ([24]) that the decision could not be Wednesbury unreasonable because all relevant considerations were taken into account and reasons were given for the decision which was an exercise of planning judgement; it could not be said that the decision was one which no reasonable decision taker could have reached.

This appeal

16. The appellant says that the Report was new evidence on the appeal to the Inspector, which was effectively unchallenged by Lambeth and which demonstrated that the perceived harm that might result from noise break-out onto the High Street would not occur as a matter of proper analysis, and, in any event, noise break-out could be avoided by a condition that would prevent the source of the noise from increasing in the event that noise levels at the position of the doors rose to a specified level. The appellant says the evidence in the Report is based upon well-known and uncontroversial acoustic principles, but the Inspector wrongly failed to explain why he did not accept the reasoning of the expert evidence or why the Inspector's own judgement was preferable.
17. As part of its case, the appellant has placed weight on the fact that there is permission from Lambeth to have tables and chairs for customers on an area in front of the Property surrounded by a railing; and that the pavement is sufficiently wide at that point to accommodate them. He seeks to adduce in this court new evidence relating to that permission.
18. So far as the legal principles are concerned, Mr Leigh submitted, on behalf of the appellant, that, while an inspector does not have to mention expressly in the decision letter every argument and each submission advanced, he or she must deal with the principal important issues in dispute between the parties. He cited in support of that proposition the speech of Lord Lloyd in Bolton Metropolitan Borough Council v. SSETR (1995) 71 P&CR 309 at pages 313-315. He said that, in the present case, the Inspector expressed his opinion but gave no reasons at all for rejecting the Report.
19. Mr Leigh also referred to South Bucks District Council v Porter (No. 2) [2004] UKHL 33, [2004] 1 WLR 1953. In that case, Lord Brown, with whom all the other members of the Appellate Committee agreed, having reviewed several earlier cases in which the adequacy of reasons requirement in a planning context had been considered, gave the following broad summary of the relevant principles, at [36]:

"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon such future applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision. "

20. The appellant says that the Deputy Judge was plainly wrong to accept the SoS's argument that the Inspector did not need to do deal expressly in the decision letter with the analysis in the Report since he was entitled simply to ignore the expert evidence and form his own planning judgement. The appellant says the point of principle is directly covered by that summary of the relevant principles by Lord Brown in South Bucks because he cannot tell from the decision letter what view the Inspector took of the analysis in the Report or whether the Inspector exercised his planning judgement correctly or whether the Inspector erred in his approach to the evidence, including his understanding of the evidence placed before him.
21. The appellant criticises the reliance of the Deputy Judge on Kentucky Fried Chicken and Mason. He says that those cases are about the ability of Inspectors to form their own judgement, whereas the issue here is about the need for adequate reasons where there is a single issue and sound scientific evidence one way. The appellant distinguishes Kentucky Fried Chicken and Mason on their facts, and also submits that they do not represent the modern approach to considering planning decisions as exemplified in cases such as Bolton Metropolitan Borough Council v SSETR (1995) 71 P&CR 309 and R v SSETR ex p. Alconbury Developments Ltd [2003] 2 AC 295.
22. Those submissions were initially advanced on the basis that the Report expressly or implicitly addressed the issue of potential noise nuisance from the Property at all times, that is to say both in the daytime and at night. Mr Leigh further submitted, however, that even if, as the SoS contends, the Report is dealing only with daytime use of the Property, so that the Inspector was entitled on any footing to form his own judgement about the potential for noise nuisance at other times, the Inspector's decision should still be quashed on the basis of absence of adequate reasons. Mr Leigh submitted that the Inspector had both the powers and, in view of the unchallenged evidence in the Report, the duty to limit Condition 4 to daytime use, and, if he did not do so, to explain why he was not doing so.
23. The appellant does not abandon his argument, which he unsuccessfully ran before the Deputy Judge, that the Inspector's decision was Wednesbury unreasonable. Mr Leigh submitted that the Inspector's decision simply cannot stand in the light of the clear evidence of the noise consultant; and that, in any event, noise could have been conditioned with a sound-limited device being required to cut any noise registered above a pre-set level at the threshold of the Property. Mr Leigh said that the Inspector's decision was therefore irrational on the further ground that it infringed the principle of planning law and practice that, where a condition can save a permission that would otherwise be refused, it should be imposed and consent granted.

Discussion

24. In one sense, it is perfectly clear from the decision letter why the Inspector rejected the appeal. He concluded ([10]) that, notwithstanding the Report, to which he expressly referred, there would probably be occasions when, with the doors open, the noise from the Property would not be adequately contained within the Property but would be heard in the immediately surrounding locality, sufficient to constitute a noise nuisance; and, therefore, Condition 4 is required to ensure the doors are kept closed. The issue is the extent to which, if at all, he was required as a matter of law to descend into further detail as to the grounds for rejecting what was said in the Report.
25. As is apparent from Lord Brown's summary in South Bucks, the required degree of particularity as to reasons depends entirely on the nature of the issues falling for decision. In the present case, the Report gave specific data measurements in support of the conclusion that there was a continuous noise level in the region of 71dB due to traffic on Clapham High Street. The Report also stated that low-level background sound in a restaurant would typically be in the range of 55-65dB; there would be a maximum sound music sound system level of around 65dBA in the central bar area during the daytime; and so, with a continuous "masking noise" from the traffic of 71dBA in the area due to traffic, any other low level noise would not lead to a change in the average ambient noise level. The recommendation in paragraph 8.1 of the Report was that, in those circumstances, there was no reason, with regard to noise, why the frontage of the Property should not be open during the day.
26. Mr Leigh submitted that the Report's analysis and recommendations were not limited to potential noise through daytime use of the Property, with the doors open. He said that, even if not expressly stated, at least implicitly the Report recommended and concluded that use of the Property at any time of the day or night would not cause noise nuisance if the doors were open at the front. I have no hesitation in rejecting that submission. Paragraph 4.4 of the Report expressly stated that the objective of the assessment was to establish "if operating Aquum with the doors open during the day will cause any nuisance to local residents". Paragraphs 5.1, 7.1 and the recommendation in paragraph 8.1 were expressly directed to daytime use. The point is further highlighted by the fact that section 6 of the Report set out noise levels at night for premises nearby but not for the Property itself. It is clear from that fact and paragraph 6.3 of the Report that those measurements were taken purely for the purpose of establishing the continuous noise level due to traffic and not with a view to establishing potential noise levels from the Property itself at night.
27. On that basis there can be no doubt that the Inspector was entitled to reject the appellant's case that Condition 4 should be discharged in its entirety. The Report did not preclude or undermine any conclusion by the Inspector, exercising his own planning judgement, that noise would be generated at other times than the daytime.
28. As I have said, Mr Leigh submitted that is not, however, the end of the matter. The appellant's argument is that the Inspector had power, by virtue of sections 73, 78 and 79 of the 1990 Act, to modify Condition 4 by, for example, limiting it to daytime use, and, in view of the unchallenged evidence in the Report, that was his duty. In support of the existence of that duty, Mr Leigh cited Dyason v SSETR and Chiltern District Counsel [1998] JPL 778 and submitted (by analogy with what Pill LJ said in that case at p.784 in relation to hearings before an inspector in lieu of public local enquiries) that the absence of an accusatorial procedure, on an appeal dealt with by written submissions, places an inquisitorial burden on an inspector to ensure that the proper approach to the issues is adopted in reaching his or her determination, whether that approach is expressly dealt with by either of the parties or not.
29. Ms Justine Thornton, counsel for the SoS submitted that there was no obligation on the Inspector to consider anything other than the complete discharge of Condition 4, for which the appellant was contending on the appeal to the SoS. She invoked in support of that submission the approach of the court in R (on the application of Ayres) v SSETR [2002] EWHC 295 (Admin), in which there was an appeal under section 288 of the 1990 Act against the SoS's dismissal of an appeal against a refusal of planning permission for use of a site for two mobile homes for gypsies. The claimant's appeal to the SoS was based on the need for gypsy site provisions in the area as well as being founded on personal and humanitarian factors relating to the claimant and his immediate family, who lived with him on the appeal site. The main ground of complaint by the claimant on the appeal to the High Court was that the inspector appointed by the SoS should have considered a proposal for a 5 year temporary condition in the light of all the relevant circumstances and of the European Convention on Human Rights. No such proposal had been put to the inspector on behalf of the claimant, who made it clear to the inspector that he wanted a permission for his life and the lives of his mother, wife and children. The appeal was dismissed by Silber J.
30. In the course of his judgment Silber J referred ([35]) to the following statement of Lord Woolf MR in Brightwell –v- SSETR (1997) 73P & CR 418 at 426 in respect of the contention that the inspector had failed to say anything about the possibility of granting permission with a limited time condition:

"So far as that is concerned, I fully accept that this has been made clear in the case of Top Deck Holdings Limited –v- Secretary of State for the Environment that there is no obligation on an inspector, in the absence of any reference to an appropriate condition, to search for a condition which might be used to assist an applicant who is appealing against the decision of a planning authority."

31. Silber J also referred ([39]) to the statement in Top Deck at [1991] JPL 961, 965 of Mann LJ (with whom Dillon and Beldam LJJ agreed) that "an Inspector should not have imposed upon him an obligation to cast about for the conditions not suggested before him", and quoted the following comment of Forbes J in the earlier case of Marie Finlay v Secretary of State for the Environment [1983] JPL 802 at 803:

"If a party to an appeal wanted the appeal to be considered on the basis that some condition could cure the planning objection put forward, then it was incumbent on [the applicant for the permission] to deal with that condition at the inquiry. Unless such condition has been canvassed the Secretary of State was not at fault in not imposing such a condition".

32. Although Ayres was an appeal against the refusal of planning permission, Ms Thornton submitted that in principle the same approach should govern an appeal against the imposition of a condition on the grant of planning permission. She emphasised that modification of the condition, which had not been requested, could complicate what was intended to be a speedy and relatively informal appeal procedure by written representations if the inspector was required to ask for further representations and perhaps to consult locally. Ms Thornton accepted that there might be exceptional occasions when it would be appropriate for an inspector to modify a planning condition even though not expressly requested, but the present case was not one of them.
33. I agree with Ms Thornton that, on the facts of this case, the Inspector was not under any duty to allow the appeal to the extent of modifying Condition 4 by restricting it to certain hours or days. The appeal to the Inspector, conducted by professionals on behalf of the appellant was on the basis that Condition 4 should be discharged in its entirety. The Inspector was entitled to find in his planning judgement that Condition 4 fulfilled an important planning function. He was never asked to consider the modification of Condition 4 by restricting it to daytime use. Nor, in my view, did he have the material to make such a modification, at least not without requesting for further representations. The Report did not focus on the precise time when, for the purpose of the analysis in the Report, daytime began and ended. That would have been a very material consideration for any limitation by reference to the time of day. It was not the Inspector's duty to require further representations in order to place himself in a position in which he could modify Condition 4 in a way which had never been requested.
34. That does not, however, exonerate the Inspector for failing to give any reasons for rejecting the analysis and conclusions in the Report. His failure to do so left the appellant in doubt as to the potential for a future application by the appellant under section 73 of the 1990 Act for planning permission with a condition similar to Condition 4 but restricted, for example, to certain hours at night. If the Inspector had made clear that he was rejecting the Report in its entirety, that would probably have made such an application a practical impossibility. If, however, the Inspector had made clear that he was not rejecting the Report insofar as it dealt with daytime use in the week-days, but considered that Condition 4 still served a useful purpose in respect of other times and days and should for that reason not be entirely discharged, it would have left open the possibility of an application under section 73 for a fresh planning permission with a more restricted condition than Condition 4. In the event, it is quite unclear whether the Inspector was rejecting the Report because he did not agree with either the facts or the analysis it contains. It is particularly unclear because his summary in paragraph 7 of his decision letter indicates that he may have misunderstood that the Report dealt only with the daytime. Further, in paragraph 8 of the decision letter, having said that his site visit was at a relatively quiet time in the afternoon, the Inspector then said that he had little doubt that at other times it would have been far more busy, but then only referred specifically to the late evening, the early mornings and weekends.
35. Ms Thornton submitted that the Inspector's use of the word "particularly" in the sentence - "I have little doubt that at other times, particularly in the late evenings and at weekends, and extending into the small hours of the morning, it would frequently be more busy" – showed that he was exercising his planning judgement, and implicitly rejecting the Report, as regards weekday daytime use. That seems to me to be very far from clear, and I am doubtful the submission is correct. Accordingly, contrary to the principles summarised by Lord Brown in South Bucks, the decision letter left the appellant materially in the dark about its impact on obtaining some alternative planning permission in relation to the noise issue addressed in Condition 4.
36. For that reason, while I have some considerable sympathy for the situation in which the Inspector found himself, bearing in mind particularly that he was conducting the appeal on the basis of written representations only, I consider that the decision letter was inadequately reasoned, and accordingly this appeal should be allowed.
37. It follows from what I have already said that the challenge to the Inspector's decision on the ground of irrationality must fail. The Report only dealt with daytime use. The appeal to the Inspector was on the ground that Condition 4 should be removed in its entirety. The Inspector was fully entitled to take the view that Condition 4 had value, particularly at night.
38. The outcome of this appeal does not rest in any way on the use of space by customers at the front of the Property. In any event, it is perfectly clear from decision letter that the Inspector was aware of that use since he expressly referred to some of the restaurants on Clapham High Street, including the Property, having small open seating areas at the front, with tables and chairs alongside the pavement. I would therefore refuse permission to adduce the new evidence about outside use.

Conclusion

39. For those reasons, I would allow this appeal, quash the Inspector's decision and order that the matter be remitted to the Inspector.

Mr Justice Hedley

40. I agree.

Lord Justice Mummery

41. I also agree.