QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(Sitting as a Deputy High Court Judge)
| THE QUEEN
on the application of
PARKVIEW HOMES LIMITED
- v –
|CHICHESTER DISTRICT COUNCIL
|SUSSEX INNS LIMITED
Jon Wills (instructed by Wannops LLP) appeared on behalf of the Interested Party
The Defendant was not represented and did not appear
Hearing date: 15 September 2020
(By video link)
Crown Copyright ©
David Elvin QC:
"Change of use of 23 Southgate from Class A1 (retail) to Class A3 (food and drink) at ground floor with ancillary hotel bedroom accommodation at 1st floor and external works."
"3. The building shall be used for A3 (food and drink) purposes on the ground floor with ancillary hotel accommodation and manager's flat on the first floor and for no other purpose (including any other purposes in classes A3, C1 , C3, or D2 of the Schedule to the Town and Country Planning (Use Classes) Order 1987 or in any provision equivalent to that Class in any other statutory instrument revoking and re-enacting that Order).
Reason: To ensure the use of the building does not have a harmful environmental effect in the interests of amenity."
"5. The A3 food and drink use hereby permitted shall not be operated at any time otherwise than between the hours of 10.00 am and 12.00 midnight with last orders being taken before 11.00pm except on January 1st of each year when the use may be operated until 1.00 am and customers and the public shall vacate the premises by 01.00am with last orders being taken before 12.30am.
Reason: To safeguard the amenities of neighbouring properties."
"14. At no time shall any amplified music (whether live or recorded) from the building be audible from the public highway.
Reason: To protect the character of the Conservation Area and the amenities of residents."
"17. The floor and roof of the proposed hotel accommodation shall be constructed or altered to ensure ambient noise is limited to 25-30bD (A) in accordance with details first to be submitted to and agreed in writing by the District Planning Authority.
Reason: In the interests of amenity for future occupiers."
"is a nightclub environment and as such makes a great deal of noise until the small hours"
"a music & dance venue, therefore the noise from our premises is not conducive to residents on an adjoining wall".
"Use as a public house (Class A4 Drinking Establishments) with ancillary live and/or recorded music at ground floor level with ancillary bedroom accommodation at first floor level."
"level of sound transmission here is of a different order of magnitude where sound levels at source are approaching 100dB(A) with powerful bass tones … It is debateable whether any reasonable noise mitigation between the properties would be totally effective in protecting new dwellings from intrusive noise from music levels found in a nightclub. … The protection of residents from excessive noise intrusion through the party wall is dependent on the adjacent property reverting to its lawful planning use and significantly reducing sound levels generated within to a level more typically expected within a pub/restaurant environment."
"[S]hould the occupiers of the Vestry seek to regularise (by submitting a planning application) their current use and opening hours it will be necessary for them to, amongst other things, demonstrate what the impact of the proposed activities would be on both the existing and prospective residential occupiers. In this respect it is reasonable to assume that a likely pre-requisite of any planning permission to broaden the Vestry's use and opening hours would be that any potential noise and disturbance would be mitigated by, for example, additional noise insulation and/or the adoption of appropriate management practices."
"[o]ur objective… is to ensure that appropriate and viable control measures are secure so that neighbouring activities to the Vestry's operations are afforded adequate amenity. If this is unable to be realised, then we would not be in a position to support any application"
(1) On 16 August 2019, the case officer informed the IP that the EHO considered that a sound test was necessary -
"so we can confirm the dB levels would be extremely beneficial. Not only would this allow us to set a level and tie this into a condition and able [sic] us to enforce this, it would also allow … the LPA to ensure the conditions and figures stipulated are reasonable".
(2) On 13 September 2019, the EHO told the case officer that a carefully worded condition would be required to set the noise limiter to secure compliance with the specified noise criteria.
(3) On 19 November 2019, the EHO informed the IP's noise consultant that notwithstanding the reference to a noise limiter in the Noise Management Plan, officers wanted -
"to see the additional provision that the limiter is set to the agreement of the Environmental Protection Team prior to the occupation at 19 Southgate. The limiter will be set to ensure the NR20 stipulation for neighbouring residential bedrooms. If the criteria cannot be met by limiter alone, it has to be acknowledged that additional structural measures may be required. It was agreed we shall speak with Caitlin [the case officer] with regard to suitable wording for a Condition. We have to be mindful that access to the neighbouring properties may be denied.".
"The key consideration here is the impact on neighbouring amenity. Paragraph 127(f) seeks to ensure that decisions create places that are safe, inclusive and accessible and which promote health and well-being with a high standard of amenity for existing and future users...' To the south of the site there are presently no occupiers, however there is consent for a number of residential flats as part a redevelopment of the entire building. These are currently under construction. As part of their consent, a new party wall was to be constructed which would provide sound insulation between the two premises and assist in mitigating against any noise disturbance between the two units.
As part of this application a noise assessment has been carried out by the applicants and the Councils Environmental Health officers have undertaken a thorough site visit looking in detail at all aspects of the Noise Management Plan (NMP) and the accommodation provided within the premises. The officers were happy with the principle of the change to the opening hours subject to some points explored further below.
The applicant's noise consultant proposed the use of Noise Rating Curves (NRCs) as an appropriate music noise threshold. CDC EH officers have undertaken further research about the use of NRCs and are happy these would provide for an appropriate way managing noise. A condition is proposed which seeks to ensure that noise control measures will have been implemented in accordance with the NMP and maintained to ensure that music noise levels as measured in any residential neighbouring habitable room, used for resting and sleeping do not exceed
Bedrooms: Noise Rating Curve NR20
Living Rooms: Noise Rating Curve NR30
Officers are happy these levels would allow the appropriate level of amenity for the occupiers of the neighbouring properties.
The site is located within a mixed urban area, where there are a number of other A4 and A3 uses which open later in the evening. Policy 10 of the CLP refers to development within the city centre and seeks to support and strengthen the vitality and viability of the city centre and enhance the city's existing entertainment and leisure offer, including the 'evening economy'. There is therefore an existing ambient noise environment within the vicinity of the application site. The premises has opened past midnight for a number of years with minimal noise complaints, and controlled by licensing, including the NMP."
"Notably a new sound system has been installed and the system includes a limiter which is set and locked so that it cannot operate beyond a pre-set maximum level. The areas in the building are zoned to create lower sound levels near the front door and thus reducing the noise escaping when people leave the premises. The limiter provides restrictions to the noise levels ensuring that the NR20 curve can be met and thus mitigating against any impacts on neighbouring properties. EHO have concluded that subject to appropriate conditions this would mitigate against impacts on neighbouring amenities.
Overall there are a number of measures in place to assist in mitigating any noise disturbance to neighbouring properties and the wider area. The premises is located within an area characterised by A3 and A4 uses which are open later in to the night and this site has been operating for a number of years, without many complaints, past midnight. The city does not have many venues that open late into the night and there are also no nightclubs. Regularising the late night opening of the premises would contribute to the night time economy within the city centre. With the appropriate noise mitigation conditions in place, the principle of the late night opening is considered to comply with local and national development plan policies."
"2) Condition 11 provides ultimate control for safeguarding the amenity of neighbouring residential dwellings, from music noise, in that, the level of activity in the venue shall be restricted or controlled as to attain the criteria.
3) Prior to occupation of the residential dwellings at Number 19 Southgate the music noise limiter, at the venue, shall be set and maintained at a music noise level approved by the Environmental Protection Team. It shall be recognised that the setting of the noise limiter will require the involvement of an appropriately qualified Acoustic Consultant, commissioned by the applicant.
It is acknowledged that the applicant shall not be beholden to the aforementioned informative, however it is considered important that they are specified on any final decision notice in order that the reasoning for the conditions are explicitly explained. It also documents the expectation that a sound test should take place once no 19 has been constructed. The last point is recommended as an informative, rather than a condition, as it is recognised that access to number 19 may not be available to the applicant."
"Change of use of 23 Southgate from Class A1 (retail) to Class A3 (food and drink) at ground floor with ancillary hotel accommodation at 1st floor and external works (variation of condition 5, 6, 8, 14, and 17 of permission CC/00/001070/FUL – extension of opening hours on Thursday to Saturdays).".
"2) The building shall be used for A4 (food and drink) purposes on the ground floor with ancillary hotel accommodation and managers flat on the first floor and for no other purpose (including any other purpose in Classes A, C1, C3 or D2 of the schedule to the Town and Country Planning (Use Classes) Order 1987 or in any provision equivalent to that class in any other statutory instrument revoking and re-enacting that Order.
Reason: To ensure the use of the building does not have a harmful environmental effect in the interests of amenity
3) No part of the A4 food and drink use on the ground floor shall be used for the sale of takeaway food unless a specific planning permission is granted for such a use.
Reason: In the interests of amenity and highway safety
4) The public house with ancillary live and/or recorded music at ground floor level shall not be operated at any time other than between the hours of 07:00 and 00:00 midnight on Sundays to Wednesdays. On Thursday to Saturday evenings, Christmas Eve and New Year's Eve the premises shall not be open except between the hours of 07:00 and 02:00 the following morning, and all customers shall vacate the premises by no later than 02:30 on the morning following Thursday to Saturday evenings, Christmas Eve and New Year's Eve.
Reason: To safeguard the amenities of neighbouring properties.
10) Within 1 month of the date of this permission, all the noise control measures as identified within the approved Noise Management Plan (19.11.2019) shall be implemented and thereafter maintained fully in accordance with the approved plan. Any alteration to the plan will first require written consent from the Local Planning Authority.
Reason: In the interests of neighbour amenity and the protection of the Chichester Conservation Area.
11) Music Noise Levels, as measured* in any residential neighbouring habitable room, used for resting and sleeping, shall not exceed the following criteria:
Bedrooms: Noise Rating Curve NR20
Living Rooms: Noise Rating Curve NR30.
*The Noise Rating Curves shall be measured as a 15 minute linear Leq at the octave band centre frequencies 31.5 Hz to 8 kHz.
Reason: In the interest of neighbouring amenity."
Grounds of challenge
(1) The s. 73 Permission amounts to an unlawful variation of the Original Permission that is beyond the scope of the Council's powers under section 73 of the 1990 Act (Ground 1);
(2) Reliance upon an informative attached to the s. 73 Permission to secure mitigation necessary to make the development acceptable (Ground 2);
(3) The failure to publish the additional EHO consultation responses or consult the Claimant on the revised noise mitigation proposals was procedurally unfair (Ground 3);
(4) It was irrational to conclude that the proposed noise mitigation measures would ensure that there would be no harmful impact on the future residential occupants of 19 Southgate in light of the Defendant's previous conclusions and in the absence of any further assessments to demonstrate that acceptable noise levels could in fact be secured (Ground 4).
The Court's approach to challenges to planning authority decisions
"42. The principles on which the court will act when criticism is made of a planning officer's report to committee are well settled. To summarise the law as it stands:
(1) The essential principles are as stated by the Court of Appeal in R v Selby District Council, Ex p Oxton Farms  PTSR 1103: see, in particular, the judgment of Judge LJ. They have since been confirmed several times by this court, notably by Sullivan LJ in R (Siraj) v Kirklees Metropolitan Borough Council  JPL 571, para 19, and applied in many cases at first instance: see, for example, the judgment of Hickinbottom J in R (Zurich Assurance Ltd (trading as Threadneedle Property Investments)) v North Lincolnshire Council  EWHC 3708 (Admin) at .
(2) The principles are not complicated. Planning officers' reports to committee are not to be read with undue rigour, but with reasonable benevolence, and bearing in mind that they are written for councillors with local knowledge: see the judgment of Baroness Hale of Richmond JSC in R (Morge) v Hampshire County Council  PTSR 33, para 36 and the judgment of Sullivan J in R v Mendip District Council, Ex p Fabre  PTSR 1112, 1120. Unless there is evidence to suggest otherwise, it may reasonably be assumed that, if the members followed the officer's recommendation, they did so on the basis of the advice that he or she gave: see the judgment of Lewison LJ in R (Palmer) v Herefordshire Council  1 WLR 41, para 7. The question for the court will always be whether, on a fair reading of the report as a whole, the officer has materially misled the members on a matter bearing upon their decision, and the error has gone uncorrected before the decision was made. Minor or inconsequential errors may be excused. It is only if the advice in the officer's report is such as to misdirect the members in a material way—so that, but for the flawed advice it was given, the committee's decision would or might have been different—that the court will be able to conclude that the decision itself was rendered unlawful by that advice.
(3) Where the line is drawn between an officer's advice that is significantly or seriously misleading—misleading in a material way—and advice that is misleading but not significantly so will always depend on the context and circumstances in which the advice was given, and on the possible consequences of it. There will be cases in which a planning officer has inadvertently led a committee astray by making some significant error of fact (see, for example R (Loader) v Rother District Council  JPL 25), or has plainly misdirected the members as to the meaning of a relevant policy: see, for example, R (Watermead Parish Council) v Aylesbury Vale District Council  PTSR 43. There will be others where the officer has simply failed to deal with a matter on which the committee ought to receive explicit advice if the local planning authority is to be seen to have performed its decision-making duties in accordance with the law: see, for example, R (Williams) v Powys County Council  1 WLR 439. But unless there is some distinct and material defect in the officer's advice, the court will not interfere."
"33. Faced with the imposition of such a condition there can be little doubt that Marks & Spencer would have replied to the local planning authority: 'Whilst you have purported to grant planning permission for one variety store the condition negates the effect of that permission. You may not lawfully grant planning permission with one hand and effectively refuse planning permission for that development with the other by imposing such an inconsistent condition.' If that was the extent of the council's powers in response to the application in 1998, as in my judgment it was, I do not see how the council can claim to be entitled to impose such a fundamentally inconsistent condition under section 73. It is true that the outcome of a successful application under section 73 is a fresh planning permission, but in deciding whether or not to grant that fresh planning permission the local planning authority,
"… shall consider only the question of the conditions subject to which planning permission should be granted."
(See section 73(1) and Powergen above). Thus the council is able to impose different conditions upon a new planning permission, but only if they are conditions which the council could lawfully have imposed upon the original planning permission in the sense that they do not amount to a fundamental alteration of the proposal put forward in the original application. I bear in mind that the variety superstore was but one element of a very large mixed use scheme, nevertheless it is plain on the evidence that it was an important element in the mix and this is reflected in the retail implications of its removal.
35. Whatever the planning merits of this new proposal, which can, of course, be incorporated into a new "full" application, I am satisfied that the council had no power under section 73 to vary the conditions in the manner set out above. The variation has the effect that the "operative" part of the new planning permission gives permission for one variety superstore on the one hand, but the new planning permission by the revised conditions takes away that consent with the other."
(1) What is the proper interpretation of the operative part of the Original Permission?
(2) Whether Condition 2 is inconsistent with the use permitted by the operative part of the Original Permission?
"Class A3 (food and drink) at ground floor with ancillary hotel bedroom accommodation at 1st floor and external works".
"Use for the sale of food or drink for consumption on the premises or of hot food for consumption off the premises".
(1) The operative part of the s. 73 Permission grants planning permission for a mixed A3/A4 use of the ground floor, but Condition 2 prevents any A3 use of the ground floor.
(2) As in Arrowcroft, the s. 73 Permission grants planning permission with one hand and the revised condition takes it away with the other. If Condition 2 had been imposed on the Original Permission, he submits, the original applicant would have been entitled to say "whilst you have purported to grant planning permission for a pub/restaurant use, you have effectively refused planning permission for that use by imposing such an inconsistent condition".
(3) Condition 2 is also internally inconsistent with other conditions. It prevents restaurant use, but condition 7 contemplates the installation of cooking facilities and condition 3 seeks to restrict the sale of takeaway food.
(1) the s. 73 Permission, properly construed, allowed the IP to continue with the use that had already been implemented under the Original Permission, which fell within the old Class A3, but subject to different conditions;
(2) the opening words of condition 2 merely operate "for the avoidance of doubt". Planning permissions run with land, and it is beneficial for any third party to understand that notwithstanding the use of the literal words of the old A3 use class within the operative description, the changed legislative background together with the implementation of the Original Permission means that it would not be lawful for the current new A4 use to be to changed to other uses within old use class A3;
(3) Condition 2 was necessary, or at least lawfully permissible, in order to make clear that changes of use from the current use within class A4 would require a further planning permission;
(4) Reliance is placed on the proposition that an operative part of a permission may grant consent for a use by reference to an entire Use Class, but a condition may remove permission for uses that fall within that Use Class;
(5) the operative words of the s. 73 merely parrot what had been authorised in the Original Permission. Thus, "Class A3 (food and drink)" means, quite clearly, the class that was called A3 at the time of the Original Permission, and which was entitled "Food and drink". The operative part of the s. 73 Permission expressly refers to the Original Permission reference number and thereby incorporates it by reference. Further, the new Class A3 is not called "Food and drink". It is therefore clear that the old words were carried over, and they bore the same meaning as they had in the Original Permission;
(6) if that is the case, then by virtue of the proposition that a consent may cut down a use class permission by condition, there is nothing objectionable about condition 2 at all; and
(7) it is unhelpful to use non-statutory terms such as "pub" and "restaurant" to describe a use which is described in the Original Permission in statutory language (e.g. "The A3 food and drink use" at conditions 4 and 5). What was permitted by the Original Permission was any aspect of the former A3 use which did not offend any of the conditions attached to the Original Permission. Accordingly, by condition 4, a use including the "sale of take away food" was excluded. However, the occupier was entitled to choose any other use within former class A3 and operate it in accordance with the conditions of the Original Permission.
"43. If the inspector had left the description of the permitted development intact, there would in my judgment have been a conflict between what was permitted (a 100 metre turbine) and what the new condition required (a 125 metre turbine). A condition altering the nature of what was permitted would have been unlawful. That, no doubt, was why the inspector changed the description of the permitted development. But in my judgment that change was outside the power conferred by section 73."
(1) Conditions 4 and 5 that explicitly refer to the use as a "public house". Whether, as Mr Wills submits, such language is unhelpful it was in fact employed by the Council in granting permission and underlines the intention of not permitting under s. 73 that which was permitted by the Original Permission.
(2) Condition 7 contemplates the "installation of kitchen facilities and … cooking on site" and, although some drinking establishments provide food, and it is ancillary to them, there is little to show this was a realistic possibility. Whilst it is unnecessary to go into detail over this, I note in particular that –
(a) The Officer's Report noted that there are no longer any kitchen facilities within the Premises; and
(b) The Planning Statement submitted in support of the application stated that no cooking takes place on the site and that all food provided is cooked and prepared off site and brought onto site for consumption only.
"If the criteria cannot be met by limiter alone, it has to be acknowledged that additional structural measures may be required."
"it is considered important that they are specified on any final decision notice in order that the reasoning for the conditions are explicitly explained."
Grounds 3 and 4
Discretion and s. 31(2A) to (2C) of the Senior Courts Act 1981
"Nevertheless, it seems to us that the court should still bear in mind that Parliament has not altered the fundamental relationship between the courts and the executive. In particular, courts should still be cautious about straying, even subconsciously, into the forbidden territory of assessing the merits of a public decision under challenge by way of judicial review. If there has been an error of law, for example in the approach the executive has taken to its decision-making process, it will often be difficult or impossible for a court to conclude that it is "highly likely" that the outcome would not have been "substantially different" if the executive had gone about the decision-making process in accordance with the law. Courts should also not lose sight of their fundamental function, which is to maintain the rule of law."