QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF ENTERTAINU LTD||(CLAIMANT)|
|WESTMINSTER CITY COUNCIL||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MISS S-J DAVIES (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANT
Crown Copyright ©
1. The use of the premises as a hostess bar is considered to be detrimental to the residential amenity by reason of the external activity associated with the hostess bar use such as touting and increase in the fear of crime or actual crime."
There was then reference to the policies of the adopted UDP, (1997 vintage) and policies in the replacement UDP (Second Deposit version) of January 2002, that is an ongoing emerging new UDP and, as I understand it, the public inquiry has not yet taken place in relation to it.
"The proposal would, by reason of the external activity associated with the hostess bar use and the design, size and location of the signage, adversely affect the character and appearance of this part of the Soho Conservation Area... "
Again that was said to be contrary to policies of both the adopted and the emerging UDP.
"This part of Wardour Street is close to the centre of China Town in Gerrard Street and is characterised by restaurants at basement and ground floor levels. Although there is much commercial activity in the locality the upper floors are primarily in office and residential use. Indeed, the upper floors of this building are in residential use. It is considered that local residents are adversely affected by the hostess bar, principally by the touting that takes place and the associated crime and disorder that this use causes."
Then it suggested that the pavement was narrow and the touting was intimidating. There was evidence from the Metropolitan Police of touting. There had been a considerable number of calls to the police alleging actual offences of assault and also the demanding of exceedingly high fees from customers (about £300 it was said for the service of one soft drink and the company of a hostess). Threats and intimidation had been used to encourage payment. It was considered that the use of the premises as a hostess bar caused a high incidence of crime. The notice goes on in subparagraph 5:
"The use is therefore considered to be contrary to policy STRA 16 of the Replacement [that is the emerging UDP] which seeks to reduce the fear of crime, actual crime and nuisance for residents, businesses and visitors."
It goes on to note that the premises are within the defined area where sex-related uses will be considered; that is a reference to what at the present is the Commercial Activity Zone (CAZ), and which is to be replaced by a zone (which appears to be coterminous) where sex-related uses would be considered. The approach is that outside the CAZ no premises with sex-related uses would be granted planning permission; within the CAZ they would only be granted planning permission if, in the circumstances, there was no adverse impact from them. The matter is helpfully set out in the relevant policy (TACE 8) in the existing UDP, where this is said:
"The City Council's general policies on entertainment activities are:
(A) Proposals for new or expanded entertainment uses will not normally be permitted outside the Central Activities Zone or within the Central Activities Zone where they would have a significant detrimental impact on the amenity of residents and the general environment...
(C) Planning permission for entertainment facilities will not normally be granted ... where the amenity of residents would be appreciably injured or where a proposal is incompatible with the existing character and function of the area."
"This part of the Soho Conservation Area is characterised by commercial uses at basement and ground floor level (many of which are restaurants) and offices and residential above. It is acknowledged that parts of Soho have historically been associated with the sex industry. However, it is considered that despite the fact that the mixed character of Soho includes an element of sex-related uses, to allow the continuation of this use would harm, rather than preserve or enhance, the character of the conservation area, by contributing to this imbalance of uses. The presence of the hostess bar, by virtue of the external activity associated with it (touting and, crime and disorder), is prejudicial to the continued attractiveness of Soho as a place to live, and in this sense it is considered harmful to the character of the conservation area as a whole."
There is also reference to the signing, which is said to be harmful because of the design, size and location of the signs. Advertisement consent had been refused for them in October 2001.
"Although it is acknowledged that parts of Soho have historically been associated with the sex industry, this particular part of the Soho Conservation area is more associated with the distinctive character of Chinatown.
7.15 Chinatown is the area in and around Gerrard Street/Lisle Street and is the home of London's Chinese community and forms the largest and most centrally located Chinatown in Europe. The specialist nature of the area and its contribution to the character of London is recognised in the Government's Regional Planning Guidance for London RPG 3 (para 2.29).
7.16 The area profile of Soho from the City of Westminster Planning and Transportation Supplementary Planning Guidance Note, December 2001 - CAZ Area Profiles is included in Appendix 8.
7.17 It is considered that the hostess bar does not form part of the local Chinatown character and is out of place in this part of Soho and fails to either preserve or enhance it.
7.18 With regard to the Soho Conservation Area as a whole is it considered that the continuation of the hostess bar would harm, rather than preserve or enhance, the character of the conservation area, by contributing to imbalance of sex related uses in the area. The presence of the hostess bar, by virtue of the external activity associated with it (touting, crime and disorder) is prejudicial to the continued attractiveness of Soho as a place to live, and in this sense it is considered harmful to the character of Conservation Area."
So, there submits Miss Davies, the distinction is drawn between the impact on the Chinatown character in that the hostess bar is said not to form part of that local character, and is out of place in that part of Soho, and the more general impact on the conservation area as a whole, which is limited to this bar because of the touting, crime and disorder associated with it.
"This appeal was allowed before the City Council's policies regarding sex uses were introduced and the Chinese character of this part of Soho was consolidated. More recently, appeals against near beer/hostess bars have been dismissed."
"Both the application and the unauthorised use are considered unacceptable by reason of the loss of amenity to neighbouring residential occupiers, increased incidence of crime and fear of crime, and adverse affect on the character and appearance on this part of the Soho Conservation Area."
She submits that it was there being made clear that there were three aspects. Unfortunately, those were translated not into three but into two when the reasons were eventually given. Again, if one goes on to read the body of the report it is clear in my judgment that what was being suggested to the subcommittee was that this hostess bar, for various reasons, was unacceptable. The draft reasons were the eventual reasons which I have already set out.
"From my visits to the area and reading of the representations I find that the main issues here are, firstly, the effect of the hostess bar on the living conditions of nearby residents and, secondly, its effect on the character and appearance of the surrounding area which forms part of the Soho conservation area."
That is wholly correct provided, as Mr Leigh would submit, the effect on the character and appearance is limited to this hostess bar as opposed to any hostess bar.
"However there is no evidence of crime or public disorder outside the premises ... "
He considered that those matters, that is to say the complaints of overcharging and criminal activities within the premises, had no bearing on the lives of local residents. He found that the operation of the bar had no significant harmful effect on the living conditions of those who lived nearby. That disposed of the first ground for the refusal of planning permission. He did not uphold the Council's objections.
"The stretch of Wardour Street south of Shaftesbury Avenue including No 26 is on the edge of, but in my view part of, this distinctive Chinatown area. I saw no evidence of other sex-related uses, apart from handwritten notes in a few open doorways in Lisle Street which indicated the presence of flats used by prostitutes. I considered that a hostess bar is out of character in the setting of Chinatown and I share the view expressed by the Metropolitan Police that any touting for business which may take place, whilst not necessarily distressing or intimidatory, suggests a seedier aspect of London life; as such this too would detract from the character of Chinatown."
"As the objection to the development is one based on fundamental policy grounds, it could not be overcome by any of the conditions suggested to regulate the detailed operation of the use."