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 WC2A 2LL
		9th February 2012

1. MRS JUSTICE DOBBS: This claim is brought under section 288(1) of the Town and Country Planning Act 1998. The applicant, Mr Simoni, challenges the decision of the first respondent's inspector dated 2nd November 2010 to dismiss his appeal against the second respondent's decision dated 16th June 2010, refusing him planning permission for the continued use of land at 31-33 Brigstock Road, Thornton Heath as a car wash together with the erection of a shed, railings and convex mirror. He seeks that the order and the decisions of the respondent be quashed.
2. The background facts are as follows. In 2008 Mr Simoni applied for planning permission on the site for the use of the land as a car wash and erection of metal gates and fencing. This was application 08/04109/P. This application was refused by the second respondent on 12th February 2009. The second respondent's decision was upheld by a planning inspector on appeal under section 78 of the 1990 Act on 23rd February 2010. In the meantime, on 23rd March 2009 the second respondent served an enforcement notice on Mr Simoni in respect of the site. The breach of planning control alleged was "without planning permission the use of land as a car wash". The notice took effect as of 4th May 2009 and remains extant. I ascertained today from Mr Philpott, representing the applicant, that in fact Mr Simoni has operated the car wash since 2008 without permission.
3. Mr Simoni then made an application for planning permission on 16th April 2010 (application 10/01165/P). This was refused by the second respondent by notice dated 16th June 2010. The reasons given for refusing planning permission were (1) that the development would result in an unacceptable level of noise and general disturbance for the occupiers of adjoining properties; (2) that the development would be detrimental to the visual amenity of the street scene by reason of its design and material; (3) that the development would create a hazard to pedestrians and vehicular traffic using the highway by reason of inadequate visibility splays. The report of the second respondent's officer, Chris Werren (of which more later), dated 7th June 2010 said under the heading "Noise and general disturbance impacts" that:

"... the Scientific Officer (Noise) has viewed the application and has raised concerns regarding the potential noise disturbance especially given the likely use of jet washes and other cleaning equipment."

The report added that the proposal had been viewed by the Environmental Officer (Noise), who had objected to the development on the ground that it would have an unacceptable impact in terms of noise and disturbance on the nearby residential properties. Under the heading "Transportation impacts" the report stated that the comments had been received from the transportation team, who observed that the development would result in unnecessary conflict between vehicles and pedestrians. It transpired subsequently that in fact the officer had not received comments from the Environmental Noise Officer or from the Transportation Team in relation to Mr Simoni's application.

4. Mr Simoni appealed against the refusal of planning permission by the second respondent under section 78 of the Act by a notice dated 23rd June and accompanying grounds of appeal. He submitted a statement of appeal on 23rd August and also a draft noise assessment dated August 2010. That report concluded that there were no reasons on noise grounds why the existing hand car wash should not continue to operate within the proposed shed over the extending operating hours.
5. The second respondent submitted a written statement in August 2010 and Mr Simoni submitted his final comments in a document dated 26th September 2010. On 22nd October 2010 the Planning Inspectorate contacted Mr Simoni's agent and second respondent by e-mail to ask whether the second respondent had received any specific comments from their Environmental Noise Officer or their Transportation department. In an e-mail dated 22nd October 2010 the second respondent confirmed that no comments from the Environmental Noise Officer or the Transportation department had been received. This clarified the position mis-stated in the report of the officer referred to earlier.
6. On 2nd November 2011 the inspector dismissed Mr Simoni's appeal, having conducted the appeal by written representations. He also made a site visit on 27th October 2010 and his decision and reasons for it is contained in the decision letter dated 2nd November 2010.

The first respondent's findings

(1) It was noted that the position of the site was close to the junction with Boswell Road, which, like the areas to the south, was predominantly residential in character, although immediately opposite the site in question there is a garage building with MOT use. Even taking into account the applicant's submissions on how the noise emanating from the property could be contained, including the conclusions in the noise assessment and an activity survey, he concluded, from his assessment of the scheme and observations, that the continued use of the site would still result in the constant coming and going of customer vehicles, closing of car doors and noise and disturbance from talking and other general activity up until about 9 o'clock in the evening every day. This would include times when local residents would expect to have quiet periods.

(2) Turning to the appearance of the canopy within the street scene, the inspector concluded that because the site was open to view from Boswell Road, the canopy would appear intrusive and out of place.

7. The circumstances led the inspector to conclude that it would be contrary to the Council's Adopted Unitary Development Plan Policy EP1. He noted that noise and disturbance is a significant problem in urban areas, as the policy points out; the proposed activity was likely, in his opinion, to exacerbate such disturbance in an area that contains a significant number of residential properties. As to the third issue, he noted that the installation of the steel grille-type fence and use of convex mirror would help allow for better visibility when motorists left the site. However, he noticed that residents at number 1 Boswell Road use their front garden in which to park their vehicle which, in his view, was likely to cause at least some partial obstruction of vision for motorists. Given the close proximity of the footway to the front of the site, the inspector thought that there was a risk that motorists might not be able to clearly observe pedestrians, particularly small children, using the footway. Accordingly, he was not satisfied that the scheme would avoid significant harm to the interests of road safety. The inspector noted the applicant's comments on other businesses and car washing facilities in the area, as well as the loss of employment opportunities, but concluded that those and other matters raised in the written representations did not weigh against the conclusions he had reached.
8. The grounds of appeal challenge the decision of the first respondent on grounds of Wednesbury irrational principles, namely that the first respondent has failed to consider material matters, took into account irrelevant matters and failed to provide intelligible reasons and failed to explain his conclusions. Additionally, the applicant contends that there has been a failure to observe the principles of natural justice and failure to give the applicant a fair hearing contrary to his Article 6 rights. The irrationality challenge covers the three findings of the inspector that I have just alluded to.
9. There are 24 matters raised in the grounds of the claim form, some of which are duplication. So far as the first ground is concerned, it is submitted that the following, inter alia, were not taken into account:

(1) noise control measures submitted with the application, together with the report of the specialist noise consultants, based on a survey of the property and measurements which would yield a noise level which would be below the lowest measure background noise, the conclusion of the authors being that there was no reason on grounds of noise why the existing car wash could not continue to operate in the proposed shed over the extended -- and I emphasise "extended" -- operating hours;

(2) the distance between the premises and the nearest residential property;

(3) that there were other car washes in the locality;

(4) that a maximum 35 cars would enter during a full working day, with minimum disturbance;

(5) no local residents had objected to the car wash business in its operation since 2008. A letter from neighbours had indicated no objections to the application;

(6) the applicant would be willing to carry out the business between any hours considered reasonable in the circumstances.

10. With regard to the second ground of challenge, namely the visual impact, it is submitted that the inspector failed to take into account;

(1) the different kinds of canopies that exist in the surrounding areas, including flat and pitched roof;

(2) that having granted permission for a similar kind of design and appearance of the proposed shed in the locality, it would be unjust for the first respondent to treat the applicant differently;

(3) the development does not harm the appearance and quality of the local environment;

(4) the neighbours had no objections.

Turning to the third ground, it is submitted:

(1) that the applicant had not proposed any new access to the property and all the existing crossovers were designed and made by the Highway Department, which had considered all the parameters and standards of pedestrian crossings on footways;

(2) the maximum 35 cars a day would have no significant effect on the locality and pedestrians;

(3) not a single accident had occurred during the operation of the car wash since 2008;

(4) the neighbours have no objections.

Finally, the loss of employment opportunities and that the development has been carried out at a sustainable location and makes efficient use of previously developed urban property are stressed.

11. There are other submissions about the case officer, to whom I have referred, being biased and a suggestion that he acted in bad faith and contrary to the principles of natural justice in that it is alleged that he determined the applicant's original application. Moreover, it is alleged that the officer lied in his delegated meeting report about the noise officer's concerns about the potential noise disturbance when in fact there was no such concern. Finally, that the applicant's rights to a fair trial had been breached and that the inspector erred in failing to consider a condition limiting the open hours of the car wash.

The evidence of the applicant

12. There is a witness statement from Mr Simoni which sets out the history of the application and appeals. He also deals with his relationship with the second respondent's case worker. Accompanying that statement is a statement from Munawar Hussain, a qualified town planner who has been acting as agent in Mr Simoni's application. He states that he believes that the development proposed in the application would not cause significant harm to the living environment of nearby residents or to the appearance of the street scene and that it would not cause significant detriment to the interests of highway safety. He believes that the first respondent has failed to take account of material facts as set out in the particulars of claim and failed to consider the relevance and effect of the applicant's evidence. It should be pointed out that this statement was not in front of the inspector at the time.

The legal framework

13. Planning permission is required for development of land under section 57(1) of the 1990 Act. The determination of a grant of planning permission must be made having regard to the relevant provisions of the development plan and to all other material considerations: see section 70(2) of the Act. Where a determination falls to be made with regard to the development plan, it has to be made in accordance with that plan unless material considerations indicate otherwise: see section 38(6) of the Planning and Compulsory Purchase Act 2004. What constitutes the development plan is prescribed by statute: see section 38 of the 2004 Act. When planning permission is granted it runs with the land. Section 75(1) of the 1990 Act provides as follows:

"Without prejudice to the provisions of this Part as to the duration, revocation or modification of planning permission, any grant of planning permission to develop land shall (except in so far as the permission otherwise provides) enure for the benefit of the land and of all persons for the time being interested in it."

14. Section 78(1) of the 1990 Act provides that where, inter alia, a local planning authority refuses an application for planning permission, the applicant may by notice appeal to the Secretary of State.
15. Section 79 of the 1990 Act deals with the determination of appeals:

"(1) On an appeal under section 78 the Secretary of State may -

(a) allow or dismiss the appeal, or

(b) reverse or vary any part of the decision of the local planning authority (whether the appeal relates to that part of it or not)

and may deal with the application as if it had been made to him in the first instance."

16. Section 79(5) of the 1990 Act provides that the decision of the Secretary of State on such an appeal shall be final.
17. Pursuant to section 79(7), Schedule 6 to the 1990 Act applies to appeals under section 78. Paragraph 1 of that Schedule empowers the Secretary of State to make regulations prescribing the classes of appeals which are to be determined by a person appointed by the Secretary of State for that purpose instead of by the Secretary of State (known as "an appointed person"). Paragraph 2 of the Schedule provides that an appointed person shall have the same powers and duties in relation to an appeal under section 78 as the Secretary of State has, inter alia, under section 79(1).
18. Section 288 provides the grounds of appeal to this court. It provides that if any person is aggrieved by the decision of the Secretary of State on an appeal under section 78, he may make an application to the High Court on the ground that either the action is not within the powers of the 1990 Act or that any of the relevant requirements have not been complied with in relation to that decision.
19. The following principles apply to a section 288 claim:

(1) Questions of planning judgment and of weight are within the exclusive province of the decision maker and it is not for the court to substitute its own judgment: see Tesco Stores v Secretary of State for the Environment [1995] 1 WLR 759 at page 780;

(2) Where it is alleged that the decision maker failed to have regard to a material planning consideration, the omission of the consideration must materially affect the decision taken: see Bolton MDC v Secretary of State for the Environment [1990] 60 P&CR 343 at page 352.

(3) There is no obligation on the decision maker to refer to every material consideration but only the main issues in dispute: Bolton MDC v Secretary of State for the Environment [1995] 3 PLR 37 at page 43.

(4) An application under section 288 of the 1990 Act is not an opportunity for a review of the planning merits of an inspector's decision. Sullivan J (as he then was) stated in R (Newsmith Stainless Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74 paragraph 6 that, whilst an allegation that the inspector's conclusion is perverse is in principle within the scope of a challenge under section 288, the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a re-run of the arguments of the planning merits.

(5) It is only necessary for the decision-maker to state his reasons in sufficient detail to enable the reader to know what conclusion he has reached on the principle important controversial version issues: see South Buckinghamshire CC v Porter (No 2) [2004] 1 WLR 1953. The decision letter has to be read as a whole in a reasonably flexible manner and not as a contract or as a statute.

Discussion and decision

20. I will deal with some of the peripheral grounds before turning to the essence of the challenge.
21. In my judgment, the allegations of bad faith and bias on the part of the second respondent's officer have no relevance to the decision of the inspector. Section 79 requires that he consider the application de novo. He had to determine whether or not planning permission should be granted for the site. He was not misled in any way by the error, alleged by Mr Simoni to be a deliberate lie, in the report of the second respondent's officer which was prepared for the original decision by the second respondent. The first respondent merely had before him submissions on behalf of both parties with accompanying documentation. Some of them are annexes, which this court has read. Having made a site visit, the inspector had to make a fresh decision, and that is clearly what he did. It is notable that in his notice of appeal Mr Simoni raised no issue of bad faith. As a result, the inspector was unable to address the issue. But in any event, the case worker complained of was not the second respondent's decision maker, he was merely the person who put the report together and made the recommendation. The decision was taken, it appears, by the head of planning. There is therefore no merit in the bias/bad faith and Article 6 points raised. I turn to the essence of this appeal, namely the irrationality challenge.

Noise pollution

22. The inspector concluded that the continued use of the site as a car wash would result in undesirable consequences. He specifically referred to the draft noise report but concluded that the incidental noise arising from use as a car wash was unacceptable. This was not limited only to the use of the noise emanating from the car wash itself as measured in the report, but also to the constant coming and going of vehicles, closing of car doors and noise and disturbance from talking and other activities. It is correct to say that the draft report, which the court has seen and which was in front of the inspector, did make reference to background noise, but it is clear that in fact the background noise was not separately measured. What was being measured was the noise created by the operation of the car wash, namely the machinery. The thrust of the report was in setting out how, together with the shed that was proposed, this noise would be reduced.
23. The inspector obviously had regard to the siting of the premises in relation to neighbours as he made a site visit. He noted that the existing flats in Boswell Road were close. He was no doubt aware of other car washes in the area. It would appear from the photographs produced in this case that in fact there was another car wash right opposite Mr Simoni's site.
24. Mr Simoni has now raised the issue of lack of complaints about the use of the site, indicating that some residents have signed a document saying they have no objection. This was not raised in the statement of appeal before the inspector. He can hardly be criticised for not dealing with it.
25. For the record, but not having any bearing on the decision, Mr Simoni's contention is not entirely correct, because even though it does not refer to noise, there is in the papers a complaint from the neighbour most directly affected by the car wash, who complained that the water they use affects her flat walls and causes damp and mould, that the flat parking facilities are affected by the car wash and that the business was bringing the area and the property down.
26. Irrespective of that, as for the reasons given by the inspector, which do not refer to the document I have just referred to, they are clear, cogent and sufficient, in my judgment.

Visual amenity

27. As already noted, the inspector concluded that because the site was open to view from Boswell Road, the canopy would appear intrusive and out of place.
28. The first point to note is that the inspector was clearly aware of the other businesses to which the applicant alluded when he made the point that planning permission had been given to businesses in the areas which had canopies of similar design. However, that is not the issue. The inspector had to consider the impact on that particular site of the canopy. He concluded that it was harmful to the visual amenity of the area. This is a classic area in which the court should not interfere, not having had the advantage, as the first respondent did, of both experience and a site visit. The ground is, in essence, a disagreement with the first respondent's judgment.
29. So far as any lack of complaint is concerned, again this was not raised with the inspector at the appeal. It is interesting to note that the documents relied on by the applicant headed "Community petition" and signed by some locals merely said that the person had no objection to the location and operation of the car wash and services it has to offer to the local community. It did not address details, if indeed they were told, of any proposed changes to the site. The second document which carries signatures merely states that the signatories are happy that the car wash remains open; again, no details of what was planned being clearly set out and acknowledged.

Highway safety

30. The inspector visited the site and was able to assess the number of cars likely to be accessing the car wash. He also had access to the figures provided by the applicant, namely some 35-odd cars per day. He was clearly not, as seems to be suggested in the grounds, labouring under a misapprehension that a new access to the site was proposed. Mr Simoni did not raise the fact that there had been no accidents during the operation of the car wash and thus cannot now rely on this as a failure to take a relevant matter into account. The inspector was able, at the visit, to make his own assessment of the potential hazards, which he did. Again, in my judgment the grounds are no more than a disagreement with the inspector's judgment.
31. It is to be noted that even the statement of Mr Hussain, which was not in front of the inspector, does not go into any explanatory details as to why the judgment of the inspector was wrong, it just supports the grounds in the claim. One would have expected him to show why the inspector's judgment was flawed given the grounds, rather than merely disagreeing with the conclusions.
32. It seemed to be submitted by Mr Philpott during the course of his submissions that the inspector had failed to get any professional evidence about the highway risks and that his judgment was just impressionistic. If Mr Simoni wished to rely on lack of accidents, and indeed lack of risk, it was open to him to provide evidence for the appeal in front of the inspector. The inspector was not bound to provide expert evidence himself. He was entitled to use his experience and judgment when he was at the site.
33. Turning to the other matters raised in the grounds, they add little to the application. The inspector dealt with most of them explicitly. He made it clear that he had read all the submissions and his failure to mention, for instance, the points that the development had been carried out at a sustainable location and that it made full and effective use of previously developed land takes the case no further.
34. There is one final ground and that relates to the submission that the inspector erred by failing to consider a condition limiting the opening hours of the car wash. In his grounds of appeal to the first respondent the applicant did not indicate that he was willing to limit his hours. The form applying for planning permission showed extended hours from what he was currently operating - until about 7 o'clock at night every day, including public holidays. On the appeal paperwork in the submissions, reference was made by the second respondent that if the inspector was against them and willing to grant planning permission, it was submitted that he should do so on the condition of limiting the hours. The inspector is criticised for, and reliance on placed on, the fact that another inspector in an earlier planning appeal by this applicant had noted that he was amenable to restricting his hours of operation. That document apparently was in one of the appendices in front of the inspector. But, as has been noted by Ms Hannett, counsel for the first respondent, the claimant did not indicate in his statement of appeal that he was amenable to changing the hours. As I have already indicated, the actual application for planning permission had stated the extended hours. Also, as I have already noted, the noise report that the applicant submitted also concluded that there was no reason why the car wash should not operate under the extended hours, and, as Ms Hannett has pointed out today in court, at page 762 of the bundle in this applicant's response to the second respondent's submissions which were in front of and addressed to the first respondent, Mr Simoni makes it quite clear that there was no reason for the extended hours not to take place. The whole effect of that is that the application was for the extended period. There was no duty on the inspector to deal with an issue which was not raised.
35. Given the inspector's findings overall, as Mr Philpott had to concede when the court asked him earlier about this matter, restricted trading hours would not in any event have overcome the findings of the inspector with regard to visual amenity and highway safety in particular such as to render or change his decision. It follows therefore from what has gone before that this court finds no merit in this claim and accordingly it is dismissed.
36. MS HANNETT: My Lady, I am very grateful. I do have an application for the first defendant's costs. Does my Lady have a copy of the costs schedule?
37. MRS JUSTICE DOBBS: Yes, I was sent two and I am just checking whether they are both the same document. No, they are not.
38. MS HANNETT: I have a spare.
39. MRS JUSTICE DOBBS: I have something called "Summary assessment" which is £3,835, and I have another document which looks like it is more recent, 8th February, £4,920.
40. MS HANNETT: I think that is the claimant's schedule. The defendant's is the one that comes to £3,835.50.
41. MRS JUSTICE DOBBS: Yes.
42. MS HANNETT: My Lady, I simply ask for an order that the claimant pay those costs summarily assessed in that amount.
43. MRS JUSTICE DOBBS: Yes. Mr Philpott?
44. MR PHILPOTT: I am just trying to lay my hands on the costs schedule. Could I just take instructions on it (_Pause). My instructions, my Lady, is that the schedule is challenged.
45. MRS JUSTICE DOBBS: Yes.
46. MR PHILPOTT: On the basis that there has not been a great deal of correspondence and communication between the parties historically.
47. MRS JUSTICE DOBBS: Well, you need to direct me to the specific entry. Which entry are you talking about? 1.7 hours attendance on opponents is claimed. Your solicitors have claimed two hours for attendances on opponents, more than they have claimed.
48. MR PHILPOTT: Yes. The applicant prays in aid that the respondents have not filed a defence to the claim and --
49. MRS JUSTICE DOBBS: What does that have to do with anything?
50. MR PHILPOTT: I do not think there is any specific item that is challenged, but it is generally challenged --
51. MRS JUSTICE DOBBS: Okay.
52. MR PHILPOTT: -- on the basis that there has not been a great deal of activity on this matter from the respondents.
53. MRS JUSTICE DOBBS: All right.
54. The respondent seeks its costs in the sum of £3,835.50, the claimant having been unsuccessful in this matter. The claimant has challenged the respondent's schedule of costs on the first basis that it claimed that there had been little activity between the respondent and the claimant, in other words the opponents, secondly, that there has been no defence to the claim that was filed by the respondents and generally challenging the schedule on the basis that there had not been a great deal of activity on this matter by the respondents.
55. Dealing with the first point about the communications between both parties, it is instructive to note that the first respondent has claimed 1.7 hours on attendance for opponents, whereas Mr Simoni's solicitors have claimed 2 hours at £180 for attendance on opponents, the respondent charging £160 an hour. The claimant's solicitors appear to have claimed for longer on that particular activity so it is difficult to understand why they challenge that part of the schedule.
56. As for challenging the schedule generally on the basis there seems to have been little activity and lack of defence being filed, the court has obviously had access to all the papers including the skeleton arguments of the applicant and the skeleton argument of the first respondent. Taking matters overall, what is instructive in this case is that the total costs applied for by the first respondent, as I have already indicated, amount to £3,835, whereas the total costs claimed by Mr Simoni's solicitor are over £1,000 more.
57. It seems to me in the circumstances that it ill behoves Mr Simoni's solicitors to submit that the first respondent should not have its costs in a significantly lesser figure for the work done in this case. I have gone through the schedule. I can see no excessive claim. In the circumstances it seems to me that there is no reason to do other than order that the applicant pay the costs of the respondent in the sum of £3,835.50.
58. MS HANNETT: I am very grateful, my Lady.