QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| PEMBERTON INTERNATIONAL LIMITED
|- and -
|LONDON BOROUGH OF LAMBETH
MR SHAHROKH PARVIN
Mr Matthew Reed (instructed by Lambeth LBC) for the Defendant
Hearing dates: 5th & 6th June 2014
Crown Copyright ©
Mr Justice Lewis :
THE LEGAL FRAMEWORK.
"(1) Where an application is made to a local planning authority for planning permission –
(a) subject to sections 91 and 92, they may grant planning permission, either unconditionally or subject to such conditions as they think fit;
(b) they may refuse planning permission."
"(1) This section applies, subject to subsection (4), to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted.
"(2) On such an application the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted, and—
(a) if they decide that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly, and
(b) if they decide that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted, they shall refuse the application."
THE FACTUAL BACKGROUND
The Redevelopment of the Site and Units 1 and 3.
"Therefore, given the number of covers proposed, the arrangement of the perimeter blocks as well as proximity to the residential units, it is considered that the proposed scheme would lead to an unacceptable impact on the existing living conditions of adjoining residential occupiers, and that their amenity would be worsen [sic] to a detrimental level. For that reason, the current submission fails to satisfy the requirements of Polices 7, 29 and 54 and the proposal is considered unacceptable in this regard. Condition 6 should not be varied."
"proposed external seating would, by virtue of its proximity to residential accommodation and number of covers proposed, unacceptably impact on the living conditions of the same residential occupiers, resulting in an increase in noise and general disturbance to the detriment of their amenity. As such the proposal is contrary to Policies 7, 29 and 54 of the Unitary Development Plan".
Unit 2 – Del Aziz's Restaurant
"There shall be no outside seating area for Unit 2 without the prior written permission of the Local Planning Authority"
"7.8 Officers are of the opinion that condition No.6 is lawful and complies with the guidance contained within Circular 11/1995 with regard to the imposition of conditions. PPG24 advises that noise generating activities should be avoided in noise sensitive locations and should not be allowed to operate between the hours of 23.00hrs and 07.00hrs. The proposed hours of operation, as indicated above, would appear to be within the PPG24 restricted time frames. These timeframes do not, however, take into account the time needed to set out the area for occupation, and subsequent packing away at 10.00pm. The generated noise associated with setting out and packing away 15 tables and 30 chairs would, in officer's opinion, be considerable and would undoubtedly be a disturbing activity. The nature of the square is such that any noise generated is, or perceived to be amplified by the hard surfacing of the courtyard floor and adjacent elevations of the masonry clad blocks. Notwithstanding the World Health Organisation's advice reflected within PPG24, officer's are of the view that this confined space would seriously struggle to accommodate acceptably any seating at any time of the day or evening. The area which is proposed to be occupied by the seating and tables would be very close to the elevations of the development which contain windows which serve habitable accommodation. As such, officers are of the view that the noise generated by the use of the seating area, as well as the noise associated with setting the area out and packing it all away at the end of trading would be to such a degree as to demonstrate harm to the quiet enjoyment of the neighbouring residential units, and as such, the proposal fails against Policy 7 of the Saved UDP."
"7.9 In addition to the above, officers have serious doubts as to the enforceability of the proposed variation as regards to controlling the number of customers using the proposed seating area. Plans submitted in support of the proposed variation indicate the formal setting out of 15 tables and 30 chairs. Staff and customer circulation space between these tables and chairs has been indicated. This plan would suggest that the seating area would accommodate a maximum of 30 customers along with the comings and goings of staff serving food and drinks. The lawful end user of the associated Class A3 premises would be expected to be licensed to sell alcoholic beverages. Officers are not convinced that the noise generated by the seating area would not be increased further through the use of the area for smoking and 'vertical drinking'. The submitted plan indicates a number of spaces large enough for customers to stand while smoking and/or drinking. This could potentially swell the numbers of customers within the seating area well over the 30 seated covers indicated on the plan. Officers consider the reasonable likelihood of staff managing this area successfully, insofar as continuously warding off customers looking for opportunities to stand and gather in this location, to be an unachievable prospect. With this in mind, the initial measure of proposing to formalise the area through providing tables and chairs would, in officers' opinion, be intensified through its use by more customers stood up in the circulation spaces generating noise. As such, for this further reason, officers are of the opinion that the proposed variation would be unacceptable as the scope of the controls proposed are inadequate, and in any case, potentially unenforceable and contrary to the objectives of Saved Policy 7."
"The proposed variation of condition would increase the noise level within the communal area of Wingate Square, given there is currently no external seating. However as the outside seating would be restricted to 8pm it is considered that the proposed variation of condition would not significantly impact on the nearby residents amenity as 8pm is not an unreasonable hour of operation."
"5.2 The previous history of the application is noted and acknowledged. However it is important to note that the applicant has reduced both the number of covers outside from 90 covers as proposed within application 09/01427/FUL and reduced the proposed operating time by five hours (3 in the morning and two in the evening). Given this it is considered the applicant has made sufficient amendment to proposed operating hours to reduce the impact on residential amenity, following the previously refused applications."
"5.23 Allowing seating outside until 8pm is not an unreasonable hour and as it is considered that it would not have significant impact on the residential amenity of neighbouring properties. It is considered the use of a 'trial run' would enable the Council to monitor the effect of the development on residential amenity and after the 12 month period should the applicant re-apply for a permanent variation of condition, the Council would be able to make a well informed decision given the level of complaints that may be received throughout the trial run."
The Application for Permanent Permission with a Condition Permitting External Seating
"5.5 Council policy seeks to protect residential amenity, however in any mixed-use development it is considered that it will be inevitable that there will be some conflict between uses and that often this conflict will be regarding noise. In accepting this fact it is considered that the Council is required to minimise any detrimental impact on neighbouring property. The specific controls over capacity and the hours of operation which are built into the wording of this condition are considered to be sufficient in minimising this impact."
"5.6 The hours of operation are not considered to be anti-social whilst restricting the capacity of the covers to 30 ensures that there are no risks of the area of outdoor seating growing uncontrollably. It is noted that two separate objectors have raised concerns regarding compliance with the hours of operation and the number of covers. However these observations were not forwarded to the Council for further investigation. Should either of these controls be breached then the Council maintains power to take enforcement action."
"5.7 It is also noted that one of the objectors is concerned that this application is at odds with the Council's Special Saturation Policy which was introduced to limit anti-social behaviour in the Clapham area which is associated with the concentration of drinking establishments. However, this application does not create an additional drinking establishment in the Clapham area and the operational hours of the outdoor seating would terminate at 2000 daily before the hours during which most of this anti-social behaviour occurs."
"35. In paragraph 5.6 of my report I had highlighted that if the number of covers or hours of operation were to be breached, the Council would have the power to take enforcement action. I had also said in the same paragraph that the complaints about the number of covers and hours of operation were not forwarded to the Council for further investigation. I did not know at the time I prepared my report that the planning enforcement team had in fact already opened a case. Usually when the template for a draft delegated report is generated, it will bring up an automatic cross reference to an enforcement case and this would act as a prompt to contact the enforcement team. I am unable to say now whether the flag to the enforcement case did not come up on the system or whether it did come up but I did not notice it."
"38. I would accept therefore that the reference in paragraph 5.6 of my report to complaints about the number of covers and hours of operation not having been forwarded to the Council for further investigation was factually inaccurate certainly as regards the making of complaints about the number of covers."
"The outdoor seating area shall not exceed that shown on drawing ref: 42.005, shall be for a maximum of 30 covers pertaining to the established A3 use of Unit 2 (Block A) and shall only operate between the hours of 0900 and 2000 weekdays and weekends".
(1) was the decision taken in breach of the Defendant council's scheme of delegation? That in turn raises the following discrete issues:
(a) did the scheme of delegation permit the decision to be taken by a principal planning officer rather than the Divisional Officer or the planning applications committee?
(b) if so, was a scheme of delegation permitting officers at this level of seniority to take such decisions unlawful as it involved a breach of the safeguards contained in the Council's own constitution or was any decision to authorise the principal officer to take the decision in this case perverse?
(c) was the decision that the matter could be dealt with by an officer, rather than referred to the planning applications committee, unlawful?
(2) Was there a failure to have regard to a material consideration, namely a previous in principle objection to outdoor seating at any time, or was the decision unlawful because it was inconsistent with earlier decisions and no adequate reasons for the change had been given?
(3) Did the failure to have regard to complaints about breaches of the condition attached to the temporary permission amount to a failure to have regard to a material consideration and, if so, should a remedy be refused as a matter of discretion?
THE AUTHORISED OFFICER ISSUE
The Legal Framework Governing Authorisation or Delegation of Functions
"101.— Arrangements for discharge of functions by local authorities.
(1) Subject to any express provision contained in this Act or any Act passed after this Act, a local authority may arrange for the discharge of any of their functions—
(a) by a committee, a sub-committee or an officer of the authority; or
(b) by any other local authority.
"(2) Where by virtue of this section any functions of a local authority may be discharged by a committee of theirs, then, unless the local authority otherwise direct, the committee may arrange for the discharge of any of those functions by a sub-committee or an officer of the authority and where by virtue of this section any functions of a local authority may be discharged by a sub-committee of the authority, then, unless the local authority or the committee otherwise direct, the sub-committee may arrange for the discharge of any of those functions by an officer of the authority".
The Factual Situation in the Present Case
"(2) Applications which are recommended for approval where an objection to the current proposal has been received which is based on material planning grounds, other than those applications where, in the opinion of the Divisional Director Planning or the Head of Development Control:
(I) The objection can be overcome by the imposition of an appropriate condition, and/or
(II) Where the application clearly complies with the relevant planning policies in which case the decision may be taken by officers."
"(8) Applications recommended for approval where it is proposed to grant permission for a change of use to Class A3 as defined by the Town and County Planning (Use Classes) Order 1987."
"4. An officer to whom a power, duty or function is delegated may nominate or authorise another officer to exercise that power, duty or function, providing that officer reports to or is responsible to the delegator".
"The following delegated powers are subject to the Executive Director of Housing, Regeneration and Environment vesting, in addition to those powers delegated by the Council to the Officers specified in this Scheme of Delegation, similar delegated authority to other appropriate officers. Any delegation of powers made by the Executive Director of Housing, Regeneration and Environment, in addition to those specified in this Scheme of Delegation, must be made in writing."
"3. The authority to determine town planning applications and to discharge all other functions concerning planning and development control (including but not limited to advertisement control, listed building and conservation area control and tree preservation orders) and related matters, including enforcement decisions and actions, as set out in paragraph 1 above, is delegated to the Divisional Director (Planning, Regeneration and Enterprise)."
"Pursuant to the said scheme of delegation I hereby delegate to you, Sheree Bennet, Chris Dale, Richard Saunders, Nicholas Linford, Gillian Nicks, Robert O'Sullivan, Andrew Mulindwa, Sarah Lowes, Helen Miles, Iwan Richards, David Smith and Paul Wilford, authority to make all the said decisions and exercise all powers which are otherwise reserved to me as the Divisional Director for Planning, Regeneration and Enterprise."
"5. I am very familiar with the terms of reference to the planning applications committee, because I am dealing on a daily basis with preparation of reports either to committee or for delegated powers. Most of my personal caseload relates to larger schemes which generally will go to committee in any event. However, the officers that I supervise deal with a wide range of types of application and one of the points that I always check when I am reviewing their work is whether the application would need to go to committee."
"6. I considered the draft report in this case and I was content to approve it under delegated powers as the officer exercising those powers."
The Proper Construction of the Scheme of Delegation
The Lawfulness and Reasonableness of the Authorisation
"The greater the extent to which the discharge of the function affects individual rights or requires the exercise of discretion or professional judgment, the less likely it would be lawful to authorise the subordinate to act."
"The degree of control maintained by the senior officer maintained by the senior officer over the subordinate may be a material factor in determining the validity of the authorisation. In cases where significant discretion or judgment must be exercised, a high degree of control should be retained."
FAILURE TO HAVE REGARD TO EARLIER REFUSALS TO VARY THE CONDITION AND PERMIT EXTERNAL SEATING
FAILURE TO HAVE REGARD TO THE COMPLAINTS ABOUT The BREACH OF CONDITION DURING THE PERIOD OF THE TEMPORARY PLANNING PERMISSION