England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		28th July 2005

1. MR JUSTICE COLLINS: On 2nd December of last year the London Borough of Camden, through its Development Control Sub- Committee, resolved to grant planning permission for, among other things, a 556 m2 A3 restaurant use in Shelton Street in the Covent Garden area. Shelton Street runs north of and parallel to Long Acre, and in fact forms the boundary between Camden and Westminster, the boundary running down the middle of the road. Thus, Camden is the highway authority for half and Westminster is the highway authority for the other half of the street. Planning control is dealt with on the one side by Westminster and on the other by Camden. One would have thought, therefore, that it was important that each authority should be informed of any application for planning permission on either side of Shelton Street and that there should be discussions between the relevant authorities in relation to it to see what objections there might be, and what requirements might be desirable on both amenity and traffic grounds. I am sure that, generally speaking, that liaison exists. Certainly it would be strange if it did not.
2. The application in question was for a development which involved some residential accommodation and in the basement of the building a restaurant. The building had been badly damaged by fire. It was a question of refurbishing it and bringing it back into sensible use. The restaurant in question was a relatively substantial one. In due course permission was granted but the covers were to be limited to 100, this being on amenity grounds, because the existence of a restaurant means more people and people coming out at the end of the evening. That was the real concern so far as local residents were concerned.
3. The Covent Garden Community Association was consulted. The chairperson of the Association wrote objecting to the development and highlighting the issues to which I have broadly referred. There were concerns in relation to amenity, largely as a result of noise and persons frequenting the premises, but also there were substantial highway objections on traffic safety grounds. Shelton Street is a street which has narrow pavements and there are dangers of pedestrians involving themselves with traffic using the street. That was a concern which the objectors raised.
4. The Committee met on 2nd December. Westminster was, for obvious reasons, an obligatory consultee. It was consulted. Information was given, as it should have been, of the application. Unfortunately, Westminster did not respond within the period which had been given for raising objections. It seems that, certainly according to the evidence on behalf of the developers which is before me, that the officer dealing with the matter in Camden was aware that Westminster was unhappy with the application and would be objecting to it, and was apparently aware that the substance of Westminster's objection related to possible harm to residential amenity by restaurant use, pedestrian congestion in Shelton Street, and other highway issues, but no written objection was received by the end of the period in which objections should have been submitted. So it was that the officer's report was drafted in the absence of the existence of any such objection. No reference was made to Westminster's position in the report.
5. It is submitted that this is not a matter which should be the subject of any criticism because if the report had indicated that it believed that Westminster was going to object, but in fact there had been no such objection that might lead to unfair prejudice to the developer. It was only if an objection was properly raised that the matter should have been referred to. Unfortunately, an objection was submitted but was not put to the Committee. Westminster submitted a written objection which is dated 15th November, though I am told that it was received in Camden on the 17th. The reasons for the objection were set out in these words:

"The City Council considers that the proposal, in having A3 restaurant customer and service accesses onto Shelton Street, would lead to potential amenity problems for residents in Shelton Street, potentially dangerous increases in pedestrian flows on this stretch of Shelton Street where pavements are narrow and the juxtaposition of pedestrians and traffic is already a potential danger, and potential traffic obstruction from servicing."

There was then a further paragraph under the heading "Informatives":

"For your information, the City Council is currently asking the applicants for a planning application with an A3 unit opening onto Shelton Street to look at ways in which Shelton Street can be made safer for pedestrians, before any final decision is taken. For more information on this, you can contact Barry Ward."

A telephone number is given. Unfortunately, it appears that no action was taken in relation to that objection. Somehow it seems to have either been detached from or never found its way onto the relevant file, because when the Committee met, one of the members raised the question whether Westminster had objected. The information given was that the officer, whoever that officer may have been at the time, believed that that was not the case but would come back to the Committee if there was any further information. It seems that the officer went to check the file and found nothing on the file indicating that Westminster had objected and, in the result, did not come back to the Committee to raise or to add anything to the information that was already before the Committee.

6. The result of that must have been that the Committee was in the position of believing that there was no objection raised to the proposal from Westminster. The Committee went on to debate the matter. It is clear that they did not find it easy to reach its decision. The record of the meeting that is before me records that one of the members raised concerns about excessive concentration of restaurants in the Seven Dials area and considered that given the problems of access, safety and servicing arrangements on the site and the size of the proposed restaurant, there was likely to be an adverse impact on residential amenity. Another member was concerned about the number of covers for the restaurant, the likely impact on traffic and the loss of residential amenity in terms of noise due to a large number of people leaving the premises late at night. Then this is said:

"On the question of whether the concerns raised were enough to refuse the application, Members with reluctance, following a lengthy debate, indicated that they were minded to approve the application, however, subject to the inclusion of additional conditions, limiting the number of covers in the restaurant to 100 and requiring the submission of a noise assessment prior to the commencement of the development to ensure that the conditions imposed were adequate in mitigating the adverse impact of the development on residential amenity.

On being put to the vote, with 4 in favour, 1 against, it was

RESOLVED -

THAT planning permission be granted subject to conditions and a s106 agreement."

In that agreement there was a provision for highway improvements which the officers believed were sufficient to meet the highway concerns that they had in relation to impact on Shelton Street, and the developers indicated that they were prepared to provide £100,000 towards the implementation of the necessary improvements.

7. It is clear that this must have been a difficult decision for the Committee to reach, no doubt aware of the feelings of the local residents against the proposal. The substance of the objections was, it is said, covered fully in the officer's report, albeit the fact that Westminster had raised the objections that it had raised was not referred to.
8. The point is made that A3 uses were not ruled out in Shelton Street or in the vicinity. The relevant guidance in the interim version of the Central London SPG dated 28th September 2004 covering Covent Garden was to be found in paragraph 7.11 of that document, which read:

"To provide protection for residential amenity and to protect the particular character of the area, all new or expanded uses should be small scale, generally with a maximum gross floor area of 100m2. Exceptions will only be made where it can be demonstrated that larger uses will not create harmful impacts or undermine the character of the area."

What I have read relates to A3 use, which covers restaurants. The proposal here was for a maximum area well in excess of 100 m2. It followed that this was to be regarded as an exception. The developers had the burden of demonstrating that the particular use would not create harmful impacts or undermine the character of the area. Of course, as Mr Harrison has pointed out, this could not mean and did not mean that A3 restaurant use was wholly forbidden in Shelton Street, but it did mean that it had to be shown that the impact was not going to be detrimental.

9. In the report that particular aspect was dealt with in some detail. The report stated that:

"The character along Shelton Street is of larger sized units rather than smaller shop units typical of other streets in the Covent Garden area. It does not appear that the character of this part of Covent Garden would be harmed by this proposal. However, for all applications the impact of the use will be considered and conditions together with legal agreements may be used to ensure the premises are designed, operated and managed in a way that does not cause harm to the area".

It was the officer's view that the conditions and the contents of the proposed section 106 agreement would suffice to overcome any otherwise unacceptable impacts upon the local amenities and the character of the area and the measures that were designed to avoid unnecessary disturbance were referred to in the report and in the conditions.

10. In those circumstances the submission made is that, despite the unfortunate loss of Westminster's objection and the failure to refer it to the Committee, the substance of it was dealt with by the officer's report, and the Committee was well aware of the arguments for and against, and reached its conclusions in the light of the full information on the matters that were in issue. Mr Harrison submitted that, in reality, all it would do, if Westminster's objection had been referred to, was to add one in number to the objections that had been raised by others. He submitted that the source of the objection was not a material factor. What was material was the contents of the objection. If Westminster had raised matters which were not dealt with by other objectors and were not dealt with in the officer's report, then obviously there would be a flaw in the process. That was not the position here. Nothing that was raised in the objections put forward on behalf of Westminster added to those which had already been put forward and referred to by the Covent Garden Association and by others who raised objections against this proposal. Accordingly, there was no reason why it should be assumed that the Committee might have reached a different conclusion had it been aware of Westminster's specific objections. The contrary was the case. It was clear, he submitted, that the decision must have been the same.
11. Miss Lieven did not go quite so far as Mr Harrison in relation to the authorship of the objection. She accepted that this might affect the weight to be attached to an objection which was received, but she submitted that, when one looked at the matter in detail, it was plain that the objections had all properly been considered by the Committee. The council officers were aware, because they had spoken to Westminster, of the proposals that Westminster was concerned with, and there was no reason to believe that the measures which had been required, particularly highway improvements, were unacceptable to Westminster or were matters which could not properly be regarded as saving this application.
12. So far as the amenity considerations were concerned, there was no reason to believe that Westminster's concerns had not been covered by the officer's report. Indeed, if one looks at the terms of the Westminster objection, it is in the form of potential amenity problems, potentially dangerous increases, and potential traffic obstruction. It was not said to be a positive problem in any of these regards, merely that those were matters which could arise. Accordingly, it really is not considering the reality of the matter if one thinks that there would have been any difference as a result of the knowledge and concerns of this particular objection.
13. I am satisfied that Miss Lieven is correct not to go so far as Mr Harrison. It seems to me that it is self-evident that the weight of an objection may well be affected by its authorship. To take an obvious example, if highway issues are raised by individuals, in the absence of any expertise they of course will be taken into account. But if the Committee believes that the relevant highway authority has no objections, then, in deciding on the weight to be attached to those objections, it will no doubt bear that very much in mind. If, on the other hand, it is aware that those objections are supported by the highway authority, that is something which would, I am sure, persuade it to attach more weight to those objections. Certainly they would be capable of having that effect. It would depend in all cases on the evidence on either side. It may be that, in a given case, the objections could be shown to be insubstantial by evidence called on behalf of the developer. That would depend upon the Committee or an inspector weighing up the material before it and deciding where the balance should be struck. It seems to me that the source of the objection can be a relevant consideration, depending on the circumstances and the view to be taken as to the likely expertise of and the weight to be attached to an objection coming from a particular source.
14. So, here, it seems to me that it is plain that the Committee might well have been influenced in favour of attaching greater weight to the objections raised by the objectors had they been aware that Westminster supported them. It is insufficient to say that the officer's report dealt with all the objections. Nothing new was raised and therefore it could not have made any difference. Naturally, any advocate at a planning inquiry will seek to persuade an inspector to find in his favour in relation to contested issues, having regard to the nature of the evidence that is produced on his behalf. It is, I venture to suggest, absurd to think that an advocate would not properly pray in aid the views of, such as the highway authority, when traffic or highway considerations were in issue. In a given case it could be shown that those objections should not be given greater weight. That would depend upon the circumstances of any given case. Where a committee, or an inspector for that matter, was led to believe that no objection was raised, by such as a highway authority, this might well affect the decision whether permission should or should not be granted.
15. It does not stop there. There is in the informative reference to an application being made and considered by Westminster. Miss Lieven submits that that cannot be regarded as a relevant consideration when one has regard to the nature of that particular application. It was a major development with substantial office and residential accommodation on the other side of Shelton Street. The point being made was that that development included an A3 unit for a restaurant of some sort opening onto Shelton Street. It was that aspect of the development that was in issue so far as Westminster was concerned. It is here that one would expect the Committee, if it was aware that this was the situation, to have expected to have received some information as to what inquiries had been made at Westminster, what the situation was, whether there had been any discussions with Westminster, to see whether the proposals put forward by Camden in this case were satisfactory, and so on. This does not mean that Westminster would have a veto or, if it were the other way round, that Camden would have a veto, but it does assume that there would be sensible liaison on applications which cover streets with a boundary between two planning authorities. For one to go one way, without consideration of the impact on the other, is absurd, and something which no sensible planning committee should countenance unless it received the necessary information to see whether the situation had been investigated. Miss Lieven says that it had, in the sense that the officer was aware of Westminster's concerns and what they were. I have no evidence before me -- there is none at all -- that there has been any specific questioning or liaison in relation to what was raised in the informative.
16. The approach of this court where there has been a material error is consistent. The decision will normally have to be quashed if the defect, whatever it may be, may have affected the result. It is only if the court is satisfied that the result would not have been any different that normally it will be persuaded that no relief should be granted. It seems to me that it is clear that there was here a failure to have regard to a material consideration; that is to say, that there was an objection and the terms of it from Westminster. Indeed, the contrary has not been argued. The only question, therefore, that I have to decide, in the light of all these circumstances, is whether the defect was such that, notwithstanding the error, the decision would have been the same. I cannot take that view. It seems to me that the Committee may well have been influenced by the knowledge that this objection had been raised by Westminster and may well have been persuaded, as a result, that greater weight should have been attached to the objections than the officers believed to be the case, and that the remedies suggested were not in fact sufficient to meet the situation. At the very least, the Committee might have wanted to adjourn the matter to enable further inquiries to be made of Westminster, to get further and better particulars as to the grounds upon which Westminster were objecting. In those circumstances, I am clearly of the view that this permission cannot stand and must be quashed.
17. MR JONES: I ask for my costs against Camden. Neither ourselves or Camden complied with the practice of serving a schedule, although we did receive this morning Camden's schedule.
18. MR JUSTICE COLLINS: You cannot oppose that in principle?
19. MR HARRISON: I do not oppose it in principle, subject to these points. I understand that there is a conditional fee agreement and after the event insurance.
20. MR JUSTICE COLLINS: Is that a matter for me to take into account?
21. MR HARRISON: We have had brief notice of it.
22. MR JUSTICE COLLINS: All I say is that they are entitled to their costs against you, to be the subject of detailed assessment if not agreed.
23. MR JONES: That is the order I invite.
24. MR JUSTICE COLLINS: Whether you want to share it with Miss Lieven is a matter for you.
25. MISS LIEVEN: I am instructed to ask for leave to appeal. I do not want to waste the court's time. There is one point of law of some importance, whether or not failure to take into account an objection per se can be a material objection.
26. MR JUSTICE COLLINS: I do not think that I said that failure to take into account an objection per se is necessarily capable.
27. MISS LIEVEN: In my submission there is an arguable case to put to the Court of Appeal, that in circumstances where a statutory objector, in this case Westminster, makes an objection that is not taken into account, that is not in itself a material consideration, and therefore the only issue is if the substance of that objection is taken into account. It is an important point. This kind of error is by no means unheard of.
28. MR JUSTICE COLLINS: It will depend upon the circumstances.
29. MISS LIEVEN: I have made the application.
30. MR JUSTICE COLLINS: The circumstances here are against you. Your ingenuity is magnificent, but I do not think that there is any novel point of law.
31. MISS LIEVEN: Given the time of year I would ask that my client be given time to have a think about appealing.
32. MR JUSTICE COLLINS: How long?
33. MISS LIEVEN: I ask for an extension of five weeks.
34. MR JONES: I object. We have cooperated in bringing the proceedings on speedily. We sought to get things wrapped up -- my clients are local residents -- in one hearing. We sought to have the substantive hearing and permission hearing to be heard together. That was strenuously objected to for reasons I do not understand. We then made an application, which was not supported by the other parties, to expedite matters, and that the permission hearing should be heard after this hearing. That was not supported by the other parties. If one was unsuccessful there would be a permission hearing to come on next term.
35. MR JUSTICE COLLINS: How does it harm you? Nothing has been done to implement the permission. They would be foolish in the extreme to try to implement it. There is no question of you trying to?
36. MISS LIEVEN: In the light of your judgment we cannot implement it. We have no planning permission.
37. MR JONES: I am not objecting.
38. MR JONES: You can have your five weeks. What about the outstanding permission application? I had better adjourn that. I cannot dispose of it in case Miss Lieven were to decide to go to the Court of Appeal.
39. MR JONES: That must be right.
40. MR JUSTICE COLLINS: I will adjourn that. If there is a decision not to appeal it will stand dismissed formally. It disappears. If there is a decision to appeal it will await the outcome of the Court of Appeal, or whatever the Court of Appeal might decide to do.
41. MR JONES: It is automatically dismissed. As long as it is not on the basis that we have to pay anybody's costs, that seems sensible.