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
		13 February 2013

1. MR JUSTICE COLLINS: This is an appeal under section 288 of the Town and Country Planning Act by Westminster City Council as the local planning authority against the decision of an inspector imposing conditions upon the grant of planning permission. Essentially what is said is that the conditions that have been imposed are unenforceable and therefore it must follow that the appellants are prejudiced because obviously as the local planning authority if there is a breach of condition then they must be able to enforce against such a breach. It is said, therefore, that the decision should be quashed and the matter should be reconsidered.
2. It is not possible for this court, if persuaded that there was an error in the inspector's decision, to correct that error: the power of this court is only to uphold or to quash.
3. The background can be shortly stated. Before the inspector there were two appeals: one was against the refusal to grant planning permission and the other against an enforcement notice that had been made against the interested party. The breach the planning control alleged in the notice was the material change of use of the ground floor of an address at Seymour Place in Westminster from Class A1 retail to a sui generis use comprising a mix of Class A1 retail and Class A3 café/restaurant uses.
4. The description of the premises and what was going on there showed that there was a fully-fitted kitchen at the rear of the premises (this was on the ground floor) with a range of cooking facilities, including an industrial-sized cooking hob, bread oven and other food preparation areas. There was a sandwich bar inside with some seating, and a forecourt area outside with a number of tables and chairs. This had been a retail shop but, without planning permission, the change of use had taken place.
5. The requirements of the notice were that the use of the premises as a sui generis use comprising a mix of Class A1 retail and Class A3 café/restaurant uses should cease, and secondly the tables and chairs on the forecourt, the deep fat fryers, industrial-sized cooker and other equipment used for the purposes of the Use Class A3 should be removed.
6. The inspector decided that planning permission should be granted, but that it should be subject to conditions. Essentially, provisions should be made so that there was an avoidance of unnecessary and harmful fumes and smells from the premises and noise and vibration, and also there was to be a limitation on use of the premises on Bank Holidays and Sundays. This was to protect the amenities of the residents because these were ground floor premises in buildings which were residential buildings, so obviously those living above would be affected by cooking smells and by noise; and indeed, if there were late-night uses, by noise as a result of that. It was also important that Sundays and Bank Holidays be kept free in the interest of the amenities of neighbours.
7. The inspector, in those circumstances, allowed the appeal against the enforcement notice but dismissed the appeal against the refusal of planning permission, because of course that appeal became unnecessary since he had decided that conditional planning permission should be granted. Having decided that permission could be granted, in paragraphs 27 and 28 of his decision letter, under the heading "Conditions" he said this:

"27. The appeal is allowed subject to a condition controlling hours of operation and others aimed at preventing any undue smells, fumes, noise and vibration, disturbance.

28. Regarding the control of smells and fumes, I do not have any appropriate scheme before me but this is not a good reason to dismiss this appeal since one can be required. But because the development has already taken place, and in the light of the importance of such measures in regard to the protection of the living conditions of residential neighbours (especially those occupying the flats above the sandwich bar/café) failure adequately to control smells and fumes, within a strict timetable and for whatever reason, would trigger a requirement to terminate the café (A3) element of the mixed use. Noise and vibration attenuation measures similarly need to be implemented and controlled."

So that was the reason behind the imposition of the conditions and it was made clear that a strict timetable to deal with the matters which concerned the inspector should be imposed.

8. The way in which he dealt with conditions was in paragraph 30 of the decision. He said that the appeal was allowed subject to the following conditions. One was a condition that there should be no use on Sundays or Bank Holidays and that there were hours on Mondays to Fridays and Saturdays, essentially which meant that there should be no evening use and no early morning use of the premises. Then he dealt with the conditions relating to the control of smells, fumes and noise, and I quote so far as is necessary the manner in which he dealt with these conditions. The following was put in italics in his decision letter. I am not sure that that in itself is of any great importance but, as will be seen in due course, the argument is that the conditions themselves, when they are eventually reached, do not incorporate any specific timetabling. It would have to be implied, the argument goes, and there is no power to imply extra matters into conditions which are clear on their face. The way inspector approached it was as follows:

"Because the use has already been started conditions 2)-3), set out below, require that any works or schemes associated with these conditions shall be submitted to, and approved in writing by, the local planning authority (or Secretary of State as appropriate) with the required works being implemented in accordance with the following strict rules.

The sui generis use hereby permitted ... will cease, and the tables and chairs on the forecourt, deep fat fryers, industrial sized cooker, filtration equipment and associated internal ducting system ... will be removed, along with all other equipment ... shall be removed within 3 months of the date of the failure to meet any one of the requirements set out in (i) to (iv) below;

(i) Within 6 months of the date of this decision schemes (for the installation of equipment and/or measures to control the emission fumes and smells, noise and vibration, from the premises) shall be submitted to and approved in writing by the Local Planning Authority and the schemes shall include a timetable for their implementation;

(ii) If within 11 months of the date of this decision the local planning authority refuse to approve the schemes or fail to give a decision within the prescribed period, an appeal or appeals shall have been made to, and accepted as validly made by, the Secretary of State;

(iii) If an appeal or appeals is/are made in pursuance of (ii) above, that appeal/those appeals shall have been fully determined and the submitted schemes shall have been approved by the Secretary of State, and;

(iv) The approved schemes shall have been carried out and completed in accordance with the approved details and timetable."

9. We then come to the two conditions, 2 and 3:

"2) A scheme for the installation of equipment to control the emission of fumes and smells must be submitted to, and approved in writing by, the local planning authority and the approved scheme shall be implemented ... and;

3) A scheme for the attenuation of noise/vibration from the premises/plant shall be submitted to, and approved in writing by, the local planning authority and the approved scheme shall be implemented..."

In each condition there is a requirement to maintain what has been installed as part of the scheme.

10. The conditions themselves do not contain any specific timetabling requirements. Those are set out in the material which I have read, which, the submission is, are not themselves incorporated into the conditions.
11. It is accepted that if the requirements of timetabling as I have described them had been expressly included in the conditions, or if there had been a further condition numbered 4 which again expressly incorporated the timetabling requirements, then no complaint could have been made. There is no challenge to the timetabling itself. The challenge is, as I say, that the conditions are said not to be enforceable because they do not themselves express any particular timetabling requirement.
12. This matter was raised with the inspectorate by a letter following the receipt of the decision. The decision itself was dated 21 November 2011. By letter of 20 December 2011, the Head of Legal and Democratic Services in Westminster City Council stated that the conditions were, following advice from counsel, in his view unenforceable because the requirements contained in what is described as the italicised text, points (i) to (iv), are not, it was said, in fact conditions. It was requested that there be a reconsideration and agreement to reissue. In fact, the matter had been raised earlier in a letter of 25 November and it was said that the concerns were not ones which were accepted by the inspectorate, and that if one read the decision letter and the grant of permission as a whole, it was apparent that those timetabling requirements were part and parcel of the conditions.
13. It was suggested that there should be, in the circumstances, a reissue of the decision letter with the enforceable conditions as was suggested by the council. That is to say, that the timetabling was expressly incorporated into the two conditions. Whether by amending the conditions to include them themselves or by adding a further condition which applied the timetabling perhaps matters not.
14. The response by the inspectorate on 23 December 2011 was to repeat that while the conditions were indeed, in its view, perfectly enforceable, and to continue:

"I have taken advice from our Assistant Director for Enforcement Appeals, who is himself a highly experienced Inspector, and can only reiterate our view that the imposed conditions are sound. While the presentation of the conditions may not be considered best practice, the entire body of text appears following the wording 'subject to the following conditions'. It is clear, therefore, what the intentions of the Inspector were. The requirements are also detailed. It is our view that the conditions are enforceable.

On this basis, we are of the view that no error has occurred and are therefore unable to re-issue the decision under Section 56(2) of the Planning and Compulsory Purchase Act."

15. That is of some importance because the power to issue only applies where there has been an error in the original decision and that error can be corrected. Since it was asserted that there was no error, there would have been no power to reissue the decision. So it is that the matter has come before me as an appeal by Westminster under section 288.
16. The approach of the court to conditions has been set out in a number of authorities. Essentially it is common ground that conditions must be read in a benevolent manner in the sense that there must not be nitpicking as to whether the condition can be read in one way or another. It is important that they are capable of being enforced, but, when considering their construction, the grant of permission as a whole must be taken into consideration. What, however, is forbidden is to imply into a condition, which otherwise is perfectly understandable on its face, a condition which is simply not there.
17. Perhaps the most helpful authority which was referred to by Ms Clutten is the decision of Sullivan J in R (on the application of Sevenoaks District Council) v First Secretary of State & Anor [2004] EWHC 771 (Admin). That was a case in which there was a condition under challenge in relation to the permission for the construction of a golf course, which provided:

"Details of the means of access from the A20 shall be submitted to, and approved by, the Local Planning Authority prior to the commencement of any works on the site. Thereafter, the access shall be completed in accordance with the approved details prior to the commencement of any other works."

That was contrasted with a condition, numbered 12, which said:

"Prior to the commencement of the development hereby permitted details of all proposed engineering works associated with the laying out of golf courses including the creation of greens, bunkers, tees, ponds or lakes shall be submitted to and approved in writing by the District Planning Authority."

The question essentially was, as Sullivan J indicated, whether there could be an implication into condition 12 an additional obligation which was not there. The learned judge referred to a number of authorities on the point and, as I say, the decision was based upon condition 8 being clear on its face and there was no reason why the added obligation which was not necessary to enable it to make sense had to be imported.

18. The situation, in my judgment, is entirely different in this case. The inspector's decision makes it clear when he deals with the conditions (because the italicised part is included in the part of his decision which deals with the conditions) that the required works contained in conditions 2 to 3 must be implemented "in accordance with the following strict rules." The following strict rules are then set out in (i) to (iv). He had in paragraph 28, as I have cited from his decision, indicated that there must be a strict timetable because of the existence of the matters which had led to the breach of planning control. It was a question, therefore, of a retrospective planning permission being granted. It was therefore important that there should be a relatively tight timescale.
19. In those circumstances, anyone reading paragraph 30 of the decision letter (which, as I say, deals expressly with the conditions) would have had no doubt that conditions 2 and 3 incorporated the timetabling requirements which were set out in (i) to (iv) in the italicised part. This is not a question of implying into the conditions matters which were not indicated as being part and parcel of those conditions, because the way in which the inspector expressed himself made it clear that he was incorporating the timetabling requirements into conditions 2 and 3. What is said in the introduction makes no sense otherwise. Accordingly, in my judgment, these conditions are clearly enforceable and the requirements of the timetabling do bite.
20. I am told that nothing has been done by the interested party or by the individual who has been granted this planning permission to seek to comply with the conditions that have been imposed. It seems to me that, in those circumstances, it is open to the planning authority to enforce, should they consider it desirable to do so, because of the failure to comply with the timetabling. Indeed, if they take the view that further time should be granted, because it may be that this was subject to consideration by the court and it might be, I suppose, that if the interested party knew of that he might have taken the view that this matter was not enforceable until the decision was reached. But that is not a matter for me: it is a matter for the local authority to decide how they should progress the matter now.
21. As I say, there is no question in my mind but that the appellants are wrong; the planning inspectorate was correct; and, read as a whole, these conditions do clearly incorporate the timetabling requirements set out by the inspectorate, and on that basis are entirely enforceable conditions. Accordingly, I dismiss this appeal.
22. MS HANNETT: I am very grateful, my Lord. I do have an application for the Secretary of State's costs. I do not know if cost schedules have reached my Lord.
23. MR JUSTICE COLLINS: I have one from Westminster. I do not think I have had one from you.
24. MS HANNETT: Perhaps I can pass one up.
25. MS CLUTTEN: My Lord, if it assists, neither the principle nor the amount of costs are disputed.
26. MR JUSTICE COLLINS: What is the amount?
27. MS HANNETT: It is £4,700.
28. MR JUSTICE COLLINS: Rather less than yours. Very well. In that case, the appeal will be dismissed; costs in favour of the Secretary of State in the sum of £4,700.
29. MS HANNETT: Thank you, my Lord.