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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Di Ciacca v. Scottish Ministers [2003] ScotCS 95 (2 April 2003)
URL: http://www.bailii.org/scot/cases/ScotCS/2003/95.html
Cite as: [2003] LLR 426, [2003] ScotCS 95
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Di Ciacca v. Scottish Ministers [2003] ScotCS 95 (2 April 2003)
- In 1988 an application was made for planning permission for a change of use of a gift shop in Oban to a wine bar. The shop premises comprised the ground floor of a three storey building. The two upper floors were in residential occupation and were owned by the proprietors of the shop. The neighbouring premises to the south were also shops with residential properties on the upper floors. The neighbouring property to the north was a hotel. Objections to the application were lodged by neighbouring proprietors. One of the principal areas of concern was the threat to residential amenity through late night disturbance. Planning permission was refused on the ground that the development was likely to give rise to street noise and other late night disturbance detrimental to the amenity of neighbouring residential properties, and therefore did not comply with the relevant local plan policy covering bad neighbour development. That decision was contrary to the advice of the Director of Planning, who had recommended approval subject to conditions which were designed to protect residential amenity and covered such matters as closing times and live music. Those suggested conditions were not however acceptable to the applicant, who maintained that closing times were more appropriately determined by the licensing board.
- The refusal of planning permission was then appealed to the Secretary of State, and the appeal was determined by a Reporter. In his decision, dated 21 February 1989, the Reporter reached the following conclusions:
- In 1990 the wine bar opened. In 1991 an application was made for planning permission for the removal of condition 2, presumably under section 28A of the Town and Country Planning (Scotland) Act 1972 (as amended), (subsequently re-enacted as section 42 of the Town and Country Planning (Scotland) Act 1997). The application was refused. A further application was made in 1994. It too was refused. An appeal against that refusal was determined by another Reporter. In his decision, dated 11 May 1995, the Reporter repeated what had been said in the first three sentences of paragraph 8 of the 1989 decision, and continued:
- In 2001 a fourth application was made for the removal of condition 2. Three matters were put forward as constituting new material considerations: a downturn in the tourist trade in recent years; the introduction of a town centre CCTV street surveillance system, with a camera in the immediate vicinity of the premises; and the continued trouble-free operation of the premises. The application was refused, the following reason being given:
- That decision was appealed to the Scottish Ministers on four grounds. First, it was argued that policy COM 4 of the adopted local plan was not relevant to the premises in question, as they were not in a residential or mixed commercial and residential area. Secondly, it was argued that policy COM 4 did not provide a reasonable basis for refusal of the application. In support of that contention the appellant made a number of submissions. He maintained inter alia that, over the period of the operation of the wine bar, there had been very few, if any, disturbances which were properly attributable to clients of the wine bar; he drew attention to the introduction of CCTV cameras in the vicinity, including one outside the premises, and to the grant by the licensing board of extended hours to other premises in Oban; and he pointed to the absence of adverse comments in the consultation response provided by the Environmental Health Department. That response had stated inter alia:
- The response of the local planning authority dealt principally with the first and third grounds of appeal. In relation to the second ground of appeal, the planning authority relied upon the conclusions reached by the Reporters in 1989 and 1995, and observed:
- The appeal was determined by a Reporter; and it is his decision, dated 25 February 2002, which is the subject of the present application to the court. In his decision, the Reporter noted that the two upper floors of the building in which the wine bar was located comprised a residential flat, occupied by relatives of the appellant. The adjoining building to the south comprised a ground floor shop with flats above. A similar development pattern, of shops with floors above, existed further to the south. To the north of the wine bar was a block of holiday apartments, recently built on the site of the hotel which had stood there at the time of the 1989 decision. Further north was a hotel and other residential flats. The Reporter noted that objections had been lodged on behalf of residential occupiers in the vicinity, expressing concern about, amongst other matters, late night noise and disturbance already being experienced.
- After summarising the parties' submissions, the Reporter reached the following conclusions:
- The present application challenges that decision on four grounds, which can be summarised as follows. First, it is submitted that the Reporter erred in failing to take account of paragraphs 50 and 54 of NPPG 1, the implication of which was that the opening hours of licensed premises should be regulated under the licensing legislation. Secondly, it is submitted that the controls provided by the licensing legislation constituted a material consideration which the Reporter failed to take into account. Thirdly, it is submitted that the Reporter failed to apply Article 1 of the First Protocol to the European Convention on Human Rights, in respect that condition 2 was neither necessary nor proportionate, having regard to the controls available under the licensing legislation. Fourthly, it is submitted that the Reporter failed to give adequate reasons for his decision on the matters focused in the first three grounds of appeal. During the course of the hearing of the appeal it was acknowledged that the third ground of appeal raised a devolution issue within the meaning of paragraph 1 of schedule 6 to the Scotland Act 1998, since it raised a question whether the decision made by the Reporter on behalf of the Scottish Ministers was incompatible with a Convention right. Intimation was accordingly given to the Advocate General and the Lord Advocate, but in the event neither of them took part in the hearing.
- Counsel for the appellant began his submissions by addressing the fourth ground of appeal, which is concerned with the adequacy of the reasons given by the Reporter for his decision. Counsel invited the court to deal with this issue not as an entirely separate point, but as a matter to be considered when dealing with each of the other grounds of appeal. Counsel submitted that the test to be applied in assessing the adequacy of reasons was that expressed by Lord President Emslie in Wordie Property Co. Ltd. v Secretary of State for Scotland, 1984 S.L.T. 345 at page 348. Counsel for the respondent however contrasted that passage with the speech of Lord Bridge of Harwich in Save Britain's Heritage v Number 1 Poultry Ltd. [1991] 1 W.L.R. 153. Neither counsel addressed me on the legal basis of any duty to give reasons in the present case, or the jurisdiction of the court to enforce such a duty. It may be helpful to begin by considering those matters.
- A duty to give reasons for an administrative decision may be imposed by statute or by the common law. Wordie Property and Save Britain's Heritage were concerned with contexts in which there was a statutory duty to give reasons: in each case, the relevant legislation imposed a duty upon the Secretary of State to issue a reasoned decision following a public local inquiry into an application for planning permission. The present case, on the other hand, is concerned with the written submissions procedure. In contrast to the legislation concerned with the public inquiry procedure, the legislation governing the written submissions procedure contains no express provision requiring the giving of reasons. In some earlier Scottish cases it has been conceded, or assumed, that a duty to give reasons also exists under the written submissions procedure (e.g. City of Glasgow District Council v Secretary of State for Scotland, 1992 S.C.L.R. 453; Castle Rock Housing Association Ltd. v Secretary of State for Scotland, 1995 S.C.L.R. 850). The basis upon which such a duty arises was not analysed in those decisions. That matter has however been considered by the Court of Appeal, in relation to the corresponding English legislation, in North Wiltshire District Council v Secretary of State for the Environment [1992] 3 P.L.R. 113; and the judgments in that case offer helpful guidance.
- It is relevant to note at the outset that the two grounds of challenge to the decision of a Reporter provided by section 239(1)(b) of the 1997 Act are:
- In North Wiltshire District Council v Secretary of State for the Environment the Court of Appeal held that a decision taken by an Inspector under the written submissions procedure fell within the scope of section 12(1)(b) of the Tribunals and Inquiries Act 1971 (subsequently re-enacted as section 10(1)(b)(ii) of the 1992 Act), as applied by the provision in English planning legislation equivalent to paragraph 8(1) of schedule 4 to the 1997 Act. There was therefore a statutory duty to give reasons if requested to do so. Since reasons were in practice invariably provided under the written submissions procedure, the court held that a request for reasons was implicit in the acceptance of that procedure. The giving of reasons was therefore obligatory under the predecessor provision of section 10(1) of the 1992 Act, and accordingly constituted a "relevant requirement" within the meaning of the English provision equivalent to section 239(1)(b) of the 1997 Act. I am content to proceed on that basis.
- In Wordie Property, Lord President Emslie described the duty to give reasons as follows (at page 348):
- The first sentence quoted lays down three criteria: that the reasons should be proper, intelligible and adequate. In relation to these criteria, Lord Bridge observed, in Save Britain's Heritage (at pages 166 to 167):
- In this passage, Lord Bridge analysed the duty to give reasons in the context of planning law, and its relationship to the court's power to quash a planning decision, more fully than Lord President Emslie had done in Wordie Property. I do not however consider that there is any inconsistency between what Lord Bridge said and what Lord President Emslie had said. The Lord President's observations about prejudice, in particular, were related specifically to "appeals such as these" and to "reasons which fail to pass the tests which I have just discussed". A decision which left the court "in ... real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it" would not only fail Lord President Emslie's test but would also give rise to substantial prejudice because, in Lord Bridge's words, it was "so inadequately or obscurely expressed as to raise a substantial doubt whether the decision was taken within the powers of the Act".
- In relation to the general approach to be adopted to the adequacy of reasons, it is necessary also to bear in mind the nature of the written submissions procedure: in particular, that the Reporter is under no duty to seek out information not put before him by the parties, and is (in general) only entitled to take account of the matters raised by the parties in their written submissions.
- Finally, it is important to read a decision letter in good faith and without subjecting it to a hypercritical analysis. As Hoffmann L.J. (as he then was) observed in Somerset District Council v Secretary of State for the Environment [1993] 1 P.L.R. 80 (at page 83), the Reporter is not writing an examination paper; nor, as Lord Bridge said in Save Britain's Heritage (at page 166), does the court have "a role analogous to that of an educational examination board which sets a standard of draughtsmanship which a decision letter must reach in order to achieve a pass mark".
- Turning to the substantive grounds of appeal, counsel for the appellant dealt with the first and second grounds together, and founded on the terms of NPPG 1 (as revised in 2000) and the provisions of the licensing legislation.
- NPPG 1 provides inter alia as follows:
- It may be helpful at this point to refer to the relevant provisions of the licensing legislation. Before considering the provisions concerned specifically with extended hours, the general framework of the licensing system should, so far as material, be summarised. Section 9(1) of the Licensing (Scotland) Act 1976 empowers a licensing board to grant a licence to any person for the sale by retail or supply of alcoholic liquor by that person; and section 9(2) provides that a licence so granted shall be in respect of premises specified therein. A licence, like a grant of planning permission, is therefore specific to particular premises. Section 17(1) requires a licensing board to refuse an application if it finds that one or more of the competent grounds of refusal applies to it, but otherwise to grant the application. The competent grounds of refusal, in respect of an application for a new licence or for the renewal of a licence, include the following grounds which are concerned with the premises or the use of the premises:
- Under section 64 of the 1976 Act, the licensing board can grant either an occasional or a regular extension of permitted hours. An occasional extension can be granted under subsection (2):
- Finally, under section 65 of the 1976 Act the licensing board can restrict the permitted hours.
- Against this background, counsel for the appellant submitted in support of the first ground of appeal that, in view of the existence of the licensing system, the condition restricting opening hours had not been shown to be "reasonable and necessary", as required by paragraph 50 of NPPG 1. The planning system was being used to secure an objective which was more properly achieved under licensing legislation, contrary to paragraph 54. The policy guidance given by NPPG 1 was a material consideration: Freeport Leisure plc v West Lothian Council 1999 S.L.T. 452. NPPG 1 had not been addressed, or even mentioned, in the Reporter's conclusions. He had not addressed the question whether condition 2 was necessary. Similarly, under reference to paragraphs 13 and 20 of Annex A to the Circular 4/1998, counsel submitted that there was no "definite need" for the condition, given the existence of the licensing system. The condition either duplicated the effect of controls available under the licensing system, or conflicted with them.
- In support of the second ground of appeal, counsel for the appellant submitted that the Reporter had failed to take into account a material consideration, namely the existence of a licensing regime under which controls could be imposed which would be adequate to protect the amenity of neighbouring residents and would be more flexible than a planning condition. The Reporter's conclusion that, in the absence of condition 2, the use of the premises would contravene local plan policy COM 4, had no reasonable basis. Indeed, the Reporter referred (in paragraph 20) only to a "potential for conflict between the use of Coasters and neighbouring residential properties", whereas in terms of COM 4 the question was whether the use of the wine bar "would have" an unacceptable detrimental effect on the amenities of residential property. More specifically, the decision letter did not contain any consideration of the nature of the licensing regime; and section 47(1) of the 1990 Act was not mentioned. The Reporter merely made a bland statement (at paragraph 20) that "the controls available to the licensing board do not relieve the council from its responsibility to exercise planning control over potential conflicts of use": he did not address the arguments which had been presented on behalf of the appellant. In support of these submissions, counsel cited Gateshead Metropolitan Borough Council v Secretary of State for the Environmental [1993] 3 P.L.R. 100, [1994] 1 P.L.R. 85; and Lethem v Secretary of State for Transport, Local Government and the Regions [2002] E.W.H.C. 1549, [2003] 1 P. & C.R. 2. At the least, counsel submitted, if the Reporter considered that the licensing regime was irrelevant and could therefore be disregarded, then even if he was entitled to adopt that approach, it was nevertheless incumbent upon him to explain why the licensing regime was not relevant. He was not entitled to fail to address the issue.
- In reply, counsel for the respondents observed that at the heart of the appeal lay the question what effect licensing law had upon the planning process. Although that issue had been raised in the submissions before the Reporter, it had not been given the same weight as in the present appeal. The main issues before the Reporter had been whether policy COM 4 was relevant to the premises in question, and whether it was being applied inconsistently when regard was had to other, allegedly comparable, cases. The provisions of the 1976 Act had not been quoted in the written submissions, or lodged: their terms had not been placed before the Reporter. Only section 47 of the 1990 Act had been quoted, in part.
- In counsel's submission, the Reporter's general approach, as explained in paragraph 16, had been in accordance with section 25 of the 1997 Act: the provisions of the development plan were to govern the decision unless there were material considerations which indicated that in the particular case the provisions of the development plan should not be followed. He had identified the provisions in the development plan which were relevant to the question before him. He had correctly identified the determining issues in paragraph 16. There was no ground of appeal directed to the question whether the Reporter had been entitled to find, or had given adequate reasons for finding, that in the absence of condition 2 the use of the premises as a wine bar would contravene policy COM 4: the first and second grounds of appeal treated the licensing regime as a material consideration which might justify a departure from the development plan, rather than as a matter which resulted, as a matter of fact, in there being no breach of the development plan.
- Counsel referred to paragraph 21 of Circular 4/1998:
- In considering the legal relationship between planning and other statutory controls, such as licensing, it may be helpful to begin by reminding oneself briefly of some fundamental principles of administrative law. First, a discretionary power must, in general, be exercised by the authority in which it is vested: that authority cannot divest itself of its power, or transfer its power to a third party. So, for example, in Ellis v Dubowkski [1921] 3 K.B. 621 a condition imposed by the licensing committee of a county council, that it would not allow films to be shown unless certified for public exhibition by the Board of Film Censors, was held invalid as involving a delegation of its power to the latter. Secondly, a discretionary power must not be used for an improper purpose: so a condition attached to the grant of planning permission must fairly and reasonably relate to the permitted development (Pyx Granite Co. Ltd v Ministry of Housing and Local Government [1958] 1 Q.B. 554 at page 572 per Lord Denning M.R.). Thirdly, a decision will be ultra vires if it is based upon irrelevant considerations or if relevant considerations are not taken into account. This principle overlaps with the second: some situations could be dealt with under either principle. Fourthly, a decision will be ultra vires if it was one which no reasonable decision-maker could reach.
- It follows from these general principles that the planning authority (or the Scottish Ministers) must exercise their powers themselves: they cannot take a decision which has the effect of delegating their function to some other body. On the other hand, planning powers must not be used to regulate matters which are not the proper concern of planning but are dealt with under other statutory regimes. Thirdly, the exercise of planning powers must be based solely upon considerations which are relevant to planning, and must have regard to all such relevant considerations. Fourthly, the decision must fall within the range of options open to a reasonable planning authority.
- The application of these principles depends upon identifying the purpose of planning powers, and hence the range of considerations relevant to their exercise. The 1997 Act does not contain any explicit statement of the objectives of planning; and it is unnecessary to attempt any exhaustive statement in the circumstances of the present case. It is sufficient to note that a planning authority is concerned, in broad terms, to regulate the development and use of land (see e.g. section 11(3)(a) of the 1997 Act). The range of considerations relevant to that exercise in any particular case may be very wide. In Stringer v Minister of Housing and Local Government [1970] 1 W.L.R. 1281, for example, Cooke J. said (at page 1294):
- Matters which relate to the development and use of land may also fall within the scope of other statutory regimes: for example, those concerned with housing, or roads, or the environment. In such a situation, the relationship between the two statutory regimes may be difficult to determine. One possibility is that the areas of jurisdiction of the different authorities may be mutually exclusive: in other words, one statutory regime may be regarded as restricting the scope of the other (see e.g. Esdell Caravan Parks Ltd v Hemel Hempstead R.D.C [1966] 1 Q.B. 895 at pages 922 to 923 per Lord Denning M.R.) That is however a conclusion which has rarely been reached. More commonly, the two sets of powers have been treated as complementary.
- That approach is illustrated by the leading case of Westminster Bank Ltd v Minister of Housing and Local Government [1971] A.C. 508, which concerned the relationship between the powers of a planning authority and those of a highway authority. Planning permission had been refused for a proposed development on the ground that it might prejudice future road widening. The highway authority had the power (under section 72 of the Highways Act 1959) to prescribe an improvement line where in its opinion it was necessary or desirable that a street should be widened; and one effect of prescribing such a line would be to prohibit development beyond the improvement line. No such line had been prescribed which would affect the proposed development. Lord Reid said (at page 528):
- The approach adopted in the Westminster Bank case has been followed in subsequent cases concerned with a wide variety of statutory regimes (e.g. Hoveringham Gravels Ltd v Secretary of State for the Environment [1975] 1 Q.B. 754); and, as a generalisation, it can be said that planning powers are not normally construed as being restricted by the existence of another regulatory regime. In such circumstances, it follows that a consideration which would be a material planning consideration in the absence of the other regulatory regime is not rendered immaterial by the existence of that regime. At the same time, the existence of the other regime may nevertheless be relevant to the exercise of planning powers. The relationship between two particular regimes will however depend upon their specific circumstances.
- For similar reasons to those explained by Lord Reid, I consider that the legislation concerned with liquor licensing has not impliedly restricted the powers of planning authorities. I note in the first place that, when the Town and Country Planning (Scotland) Act 1947 introduced into Scots law general planning control of land use, there was already in existence a statutory code governing the licensing of the sale of alcohol, under the Licensing (Scotland) Act 1903. The licence, or "certificate", was granted in respect of specific premises for hours fixed by the licensing court, with provision in the legislation for occasional extensions. The 1903 Act thus made provision for authorising or regulating a development of land, namely a change of use of premises to use for the sale of alcohol.
- The Scottish Act of 1947 contained, in section 112, a provision in identical terms to section 118 of the English Act of that year. Parliament thus made it plain that specific legislation already in force, such as the 1903 Act, did not derogate from the general powers conferred by the 1947 Act upon planning authorities. The Town and Country Planning (Scotland) Act 1972, a consolidating enactment, re-enacted section 112 as section 274. The 1997 Act, also a consolidating Act, retains the provision in section 276. The 1903 Act remained the basis of licensing law until the passing of the Licensing (Scotland) Act 1959, a consolidating Act which did not radically alter the scheme then in place. The licensing system was altered by the Licensing (Scotland) Act 1962, which provided in particular for standard permitted hours for the whole of Scotland; and again by the 1976 Act, which in particular replaced the licensing court by a board composed of members of the local authority, and conferred the power to grant regular extensions of permitted hours.
- In the light of this legislative history, it appears to me that, in 1947, the licensing legislation did not abridge or restrict the powers of planning control, and in particular did not prevent planning authorities from giving effect to their views about opening hours, where relevant to planning (e.g. on grounds of amenity). Although the licensing legislation has changed since 1947, none of the changes appears to me to alter that relationship between the two regimes.
- Even apart from section 276 of the 1997 Act and its predecessors, it appears to me that the licensing legislation could not be regarded as restricting the powers of planning authorities. The licensing board is separate in law from the planning authority; and the statutory functions of licensing and planning are distinct in nature and purpose. Although the objectives of licensing are not expressly stated in the relevant legislation, the provisions quoted earlier indicate that the relevant criteria, and the policies pursued, may be different from those of a planning authority. The licensing board's assessment, for example, of whether a regular extension of permitted hours is likely to cause "undue public nuisance" in terms of section 64(8) of the 1976 Act, or of whether an extension is likely to be of such benefit to the community as a whole as to outweigh any detriment to the locality, as required by section 47(1) of the 1990 Act, is a different exercise from the planning authority's assessment of whether a condition restricting opening hours is appropriate for planning purposes.
- I note that the same conclusion was reached by Sir Douglas Frank, Q.C., sitting as a deputy High Court judge, in Ladbroke (Rentals) Ltd v Secretary of State for the Environment (1981) J.P.L. 427. It was argued in that case that, since the licensing authority (under the Gaming Act 1968) had the power to impose restrictions on the hours during which gaming was permitted, for the express purpose of preventing disturbance or annoyance to other occupiers in the vicinity, the planning authority could not exercise a similar power and had therefore acted ultra vires in imposing a condition which restricted opening hours. The argument was rejected (at page 428):
- It follows, from my conclusion that the licensing legislation does not restrict the jurisdiction of the planning authority, that the planning authority cannot lawfully fetter its own discretion by deferring to the decision of the licensing board. This point was made clear by the Second Division, in a different but analogous context, in J. E. Sheeran (Amusement Arcades) Ltd v Hamilton District Council 1986 S.L.T. 289. It had been argued in that case that it was unreasonable for a licensing committee (acting under the Gaming Act 1968) to refuse a gaming permit after planning permission had been granted for the change of use. The court said (at page 291):
- It equally follows that the planning authority cannot lawfully disregard a material consideration, such as the effect of late night opening of licensed premises upon residential amenity, on the basis that that matter also falls within the scope of licensing legislation. That point can be illustrated by the decision of the Extra Division in City of Aberdeen District Council v Secretary of State for Scotland, 1993 S.L.T. 1325, where a Reporter dealing with an application for planning permission for a hot food outlet had concluded in respect of the issue of litter that "it is now generally recognised that as the dropping of litter is dealt with under general legislation it is not a proper reason for withholding planning permission." The court held that, since the issues of litter and vandalism were relevant to residential amenity, to ignore them on the basis that they were dealt with under other legislation was an error in law.
- As I indicated earlier, however, the principle that a planning authority cannot delegate the exercise of its functions to some other body does not mean that the existence of another body exercising different functions is necessarily irrelevant to the exercise of planning powers. This was made clear, in the context of environmental protection, in the case on which counsel for the appellants primarily relied, namely Gateshead M.B.C. v Secretary of State for the Environment. That case was concerned with an application for outline planning permission for an incinerator which was liable to emit noxious fumes. One of the relevant criteria in the development plan was that the development must have acceptable consequences in terms of environmental impact. The operation of the incinerator would require authorisation by H.M. Inspectorate of Pollution under the Environmental Protection Act 1990. The Secretary of State found that concerns about environmental pollution by emissions could and would be satisfactorily addressed by H.M.I.P. under the 1990 Act, and therefore granted outline planning permission. In an application to quash the decision, Mr Jeremy Sullivan, Q.C. (as he then was), sitting as a deputy High Court judge, concluded on an analysis of the 1990 Act that the Secretary of State had correctly found that the granting of an authorisation by H.M.I.P. was subject to stringent requirements. Moreover, the Secretary of State had been entitled to be confident in the efficacy of controls under the 1990 Act, since he had ministerial responsibility for H.M.I.P. and possessed an extensive array of reserve powers to ensure that authorisations, conditions and enforcement of pollution controls were operating properly. The issue before the court was whether, in these circumstances, the Secretary of State was entitled to conclude that the remaining matters of concern could properly be left to the 1990 Act regime; or whether such a conclusion was an unlawful abdication by the Secretary of State of his planning responsibilities. In that regard, the deputy judge said (at pages 109 to 110):
- The conclusion reached in the Gateshead case depended upon its particular circumstances, as the deputy judge made clear: the case did not lay down any general rule about the relationship between planning and other regulatory regimes. The conclusion depended in particular on the finding that the existence of a stringent pollution control regime was a material planning consideration in the circumstances of that case. That finding reflected the fact that the environmental impact of emissions was a material planning consideration, and that the purpose of the pollution control regime was the prevention or mitigation of that impact. The pollution control regime was thus directed towards the same objective as the planning authority insofar as each authority was concerned to ensure that emissions from the proposed development did not have an unacceptable impact upon the environment. Since the existence of the pollution control regime was a material consideration, it followed that the effectiveness of that regime was also material. In that regard, the critical finding was that the Secretary of State had been entitled to conclude that the pollution control regime would control harmful emissions to the extent required to meet planning concerns.
- In the subsequent case of Lethem v Secretary of State for Transport, Local Government and the Regions, it was argued that the same approach should be adopted to the relationship between planning and liquor licensing. The case concerned an application for planning permission for a change of use to a café/bar. The Inspector recognised that a café/bar might be operated like a restaurant or like a public house; and he considered that the latter type of operation would increase the likelihood of crime and disorder in the area. He concluded that it was not possible to use planning conditions to restrict the use of the café/bar to the restaurant type of operation. He accepted that the licensing authority would have some input into the nature of the use, through conditions applied to the licence and the periodic consideration of whether the licence should be renewed. In the passage which was challenged, however, he said:
- On an application to quash the inspector's decision to refuse planning permission, it was argued that the licensing regime must be treated as adequate to deal with the sort of harm which the Inspector had in mind, and that it was Government policy under PPG1 (the relevant provisions of which were to broadly the same effect as the excerpts from NPPG1 quoted earlier) that such matters should be left to the licensing process. That argument was rejected by Mr George Bartlett, Q.C., sitting as a deputy High Court judge. He said (at paragraphs 24 and 25):
- This decision reflects the fact that planning permission is an anticipatory form of control. It cannot be proper for planning permission to be granted which would permit a development contrary to sound planning; and a planning authority cannot therefore grant permission, where it has unresolved concerns, merely on the basis that another raft of legislation exists under which a separate authority has the power thereafter to exercise controls which might address the remaining planning concerns. On the other hand, as the Gateshead decision demonstrates, the existence of another statutory regime may, in particular circumstances, resolve the concerns of the planning authority and enable it to be reasonably satisfied that the grant of permission will not have the effect of permitting a development contrary to sound planning. Such circumstances will exist in particular where the other statutory regime can reasonably be relied upon to address the remaining planning concerns satisfactorily.
- In the present case, the Reporter correctly noted in paragraph 16 of his decision that section 25 of the 1997 Act required him to make his determination in accordance with the development plan unless material considerations indicated otherwise. He correctly noted (in paragraph 4) that the relevant policy of the development plan called for uses not to be permitted where they would have an unacceptable detrimental effect on the amenities of residential property. He endorsed (in paragraph 18) the findings of the previous Reporters in relation to opening hours. He found (in paragraph 22) that the removal of the existing restriction on opening hours would contravene the development plan. He was therefore satisfied, like the previous Reporters, that for the opening hours to extend beyond the period permitted by condition 2 would have an unacceptable detrimental effect on the amenity of residential property: this is implicit in his conclusion that the removal of the restriction on opening hours would contravene policy COM4, his endorsement of the findings of the previous Reporters and his finding (in paragraph 20) that "the potential for conflict between the use of Coasters and neighbouring residential property remains". He was accordingly satisfied that condition 2 was necessary for a planning purpose, namely the preservation of residential amenity in accordance with the development plan. In that situation, the Reporter could not properly grant planning permission for the removal of condition 2 from the existing planning permission unless a departure from the development plan was justified on planning grounds. The Reporter concluded that there was no such justification.
- I reject the argument that the Reporter fell into error by failing to have regard to the power of the licensing board to grant or refuse an application for an extension of permitted hours. The powers of the licensing board and the manner in which they are exercised (like the powers of the police, and the manner in which they are exercised) are capable of forming part of the context in which the consequences of permitting a development involving the sale of alcohol have to be assessed by a planning authority; and so evidence about the powers and practices of the licensing board may be relevant to the consideration of an application for planning permission for such a development. In the present case, however, the Reporter concluded, on the first determining issue, that the operation of the wine bar would have an unacceptable effect on residential amenity unless its hours were restricted to those permitted by condition 2, and that to grant planning permission for the removal of condition 2 would therefore contravene the development plan. The only remaining issue was whether some other material planning consideration justified such a departure from the development plan. In these circumstances, the evidence before the Reporter as to the power of the licensing board to deal with an application for an extension of permitted hours was not material to the determining issues in the present case. This was not a situation in which the Reporter considered that, subject only to the licensing legislation, the premises were suitable for use as a wine bar without the restriction imposed by condition 2. On the contrary, this was a situation where the Reporter was satisfied that the premises were only suitable for use as a wine bar, in accordance with proper planning, if the opening hours were restricted to those permitted by condition 2. It was therefore necessary that the condition remain in place, to ensure that the development was acceptable in planning terms, whatever view about opening hours might be taken under the licensing regime. The information presented to the Reporter about the licensing system did not in any event establish that the licensing board would deal with any application for an extension of permitted hours in a manner which would fully address the planning concerns. Even if the Reporter had investigated fully the relevant provisions of licensing legislation, he would have found that there was no reason to expect that the licensing board would deal with such an application in the manner required by the development plan, given the differences between the considerations relevant to the exercise of licensing powers and those relevant to planning, and the width of the discretion conferred on the licensing board. There is in my opinion nothing in NPPG 1 or Circular 4/1998 which leads to a different conclusion. I refer in particular to paragraph 21 of Circular 4/1998.
- There remains, in relation to this aspect of the case, the criticism of the Reporter's reasons. The critical passage in the decision letter is in these terms:
- It remains to consider the third ground of appeal: that the Reporter failed to apply Article 1 of the First Protocol to the European Convention on Human Rights. That article provides:
- In support of this ground of appeal, counsel for the appellant submitted that condition 2 in the present case constituted an interference with the appellant's right to peaceful enjoyment of his possessions which was not proportionate, having regard to the controls available under the licensing legislation. Counsel's argument, as I understood it, was that the appellant's interests in the premises, and in the business conducted there, were possessions; and that condition 2, by controlling the use which could be made of the premises, and by controlling the operation of the business, constituted an interference with those possessions. Reference was made in this connection to Catscratch Ltd v City of Glasgow Licensing Board (No.2), 2002 S.L.T. 503 and Adams v South Lanarkshire Council, 2003 S.L.T. 145. Counsel also cited the judgment of the European Court of Human Rights in Tre Traktörer Aktiebdag v Sweden (1989) 13 EHRR 309, which concerned the withdrawal of a licence to serve alcohol in a restaurant on the ground that the licence-holder was not a fit person. Counsel founded on the explanation of proportionality set out in paragraph 59 of that judgment (and repeated in subsequent judgments):
- In reply, counsel for the respondents submitted that the refusal to remove the condition restricting opening hours was not an interference with a possession. Article 1 of the First Protocol was not engaged. The condition merely limited the hours during which a commercial activity could be conducted, in circumstances where the appellant had no legitimate expectation of conducting his business without such a limitation. Counsel referred in this connection to the admissibility decision of the European Commission on Human Rights in Gudmundsson v Iceland (1996) 21 E.H.R.R. C.D. 89, which concerned the withdrawal of a licence, and to the judgment in Pine Valley Developments Ltd v Ireland (1991) 14 E.H.R.R. 319, at paragraph 59. If, contrary to that submission, Article 1 of the First Protocol was engaged, the Reporter had in any event weighed the competing interests of the appellant and of the neighbouring proprietors in a manner which satisfied the requirements of Article 1.
- Article 1 of the First Protocol protects existing rights (and certain legitimate expectations): it does not guarantee a right to acquire what one does not already have. Whether a decision taken by a planning authority interferes with a right protected under Article 1 therefore depends upon the circumstances. A refusal of outline planning permission, for example, will not normally engage Article 1 (in the absence of a legitimate expectation of being able to carry out the proposed development), since it will not normally interfere with an existing right to develop the land in question (Pine Valley Developments Ltd v Ireland at paragraph 51; also ISKCON v United Kingdom (1994) D.R. 76, 90 at page 108). In the present case, the decision under challenge is a refusal to remove a condition attached to an existing grant of planning permission. That decision did not encroach upon any existing right of the appellant; nor is it suggested that it infringed any legitimate expectation (it was indeed conceded that the appellant had no legitimate expectation of being permitted to open beyond the ordinary permitted hours, under reference to Adams v South Lanarkshire Council). In these circumstances, the decision did not in my opinion engage Article 1 of the First Protocol.
- If, contrary to my opinion, the decision of the Reporter constituted an interference with the appellant's right to peaceful enjoyment of his possessions, any such interference was not a deprivation of possessions but a control of the use of property. On that basis, there must be a reasonable degree of proportionality between the restriction imposed and the ends sought to be achieved, so as to ensure that a fair balance between individual and collective interests has been maintained (the concept of a "fair balance" being used in contradistinction to that of "an individual and excessive burden"). In assessing the proportionality of an interference with property rights, it is also necessary to consider the degree of protection from arbitrariness that is afforded by the proceedings in a case.
- In the present case, the Reporter found that the use of the premises as a wine bar had the potential to conflict with the residential use of neighbouring properties, because of the effect on their amenity. He concluded that the removal of the restriction on late-night opening would have an unacceptable detrimental effect on their amenity, and would therefore contravene the development plan. Unless susceptible to challenge on some competent ground, that conclusion was a matter of planning judgment falling within the exclusive province of the Reporter (cf. Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, 780 per Lord Hoffmann). He expressly considered the issue of compliance with Article 1 of the First Protocol, and concluded that the exercise of control in the present case was proportionate to the need to protect the legitimate rights of the occupiers of neighbouring residential properties. Procedurally, the Reporter took account of the appellant's written submissions; and if he had taken into account any consideration which was relevant, or if his assessment of the considerations had been irrational or perverse, these matters could be raised in the present proceedings. In the light of these considerations, I would in any event conclude that any interference with the appellant's rights was proportionate and did not impose upon him an individual and excessive burden.
- I require finally to consider the adequacy of the Reporter's reasons on this aspect of the case. On the assumption (which I reject) that Article 1 of the First Protocol was applicable, paragraph 21 of the Reporter's decision, read in the context of the decision as a whole, appears to me to explain succinctly his conclusion on the issue of proportionality. His reasons do not exhibit any deficiency capable of causing the appellant substantial prejudice, and are therefore adequate. That conclusion can be affirmed with at least equal force if, as I consider, Article 1 had no application to the present case.
- For the foregoing reasons, I conclude that each of the grounds of appeal must be rejected. The application to the court is therefore refused.
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OUTER HOUSE, COURT OF SESSION |
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XA51/02
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OPINION OF LORD REED in Application under sections 237 and 239 of the Town and Country Planning (Scotland) Act 1997 by MARIO DI CIACCA Appellant; against THE SCOTTISH MINISTERS Respondents:
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Appellant: Agnew of Lochnaw, Q.C.; Morton Fraser
Respondents: Crawford; Solicitor to the Scottish Executive
2 April 2003
"6. ... I consider that the determining issue in this appeal is whether or not the threat to residential amenity is unreasonable, bearing in mind the edge-of-town-centre location.
7. ... I consider that expectations of residential amenity at this location (on the main seafront in a main resort with its associated activity) do not warrant the same degree of restriction as, say, in a quiet suburb. I consider that a properly controlled wine bar would add little to the inevitable level of activity at this location for which it is a broadly appropriate use.
8. The proximity of third party residential property, at first and second floor level directly to the south, nevertheless justifies caution. The possibility of control by the licensing board does not relieve a planning authority of any responsibility to control conflicts of use. Whereas street noise may require a response by the police, it remains competent for a district council to anticipate such symptoms and to impose appropriate conditions on proposals to which they can fairly be attributed (e.g. through the arrival and departure of patrons). I find that the conditions proposed by the Director of Planning represent the necessary level of concession to residential amenity.
9. I have given careful thought to your clients' resistance to such conditions. They are however the only way in which this development can be rendered acceptable, and it is for your clients to determine whether or not the development should proceed on this basis, or not at all.
10. Therefore, in exercise of the powers delegated to me, I sustain the appeal and grant planning permission for the use of the appeal property as a wine bar subject to the following conditions:-
...
2. The wine bar should be open to the public only between the hours of 11.00a.m.-11.00p.m. (Sunday to Thursday inclusive) and 11.00a.m.-12 midnight (Friday and Saturday)."
"The next main issue is therefore whether the proposal would be inimical to the living conditions of people in the vicinity. This is a mixed residential and commercial area and I endorse the previous Reporter's conclusions about the appropriate level of protection of residential amenity and the use of planning control for that purpose. Despite your client's confidence that Coasters wine bar is an innocuous neighbour, falsely blamed for incidents that have nothing to do with it, and despite my making allowances for possible exaggeration of some details ... I find the comments of neighbours about the effects of the wine bar on their residential amenity to be generally credible ... It is apparent that the existence of a stairway between the wine bar and the nearest flat in other occupation has not protected that flat from disturbance. It is therefore a simple matter to conclude that any extension of opening hours would further harm the living conditions of neighbours, and hence the proposal is contrary to policy COM 4."
The appeal was therefore refused. In 1997 a third application was made for the removal of condition 2. It too was refused.
"The variation of Condition Number 2 ... to remove control by the Planning Authority over opening hours would result in a development likely to have an adverse effect on the amenity of neighbouring residential properties located to the south and the holiday letting flats located to the north. As such the removal of condition 2 would result in bad neighbour development which is contrary to POL COM 4 of the Adopted Local Plan. POL COM 4 states:
'The Council will continued to examine carefully proposals for bad neighbour commercial uses in resident and mixed [commercial and] residential areas, and will not normally permit such uses where it is considered that they would have an unacceptable detrimental effect on the amenities of residential property."
"As part of their submissions the applicants speak of other premises coming under Licensing Board control with regard to hours of opening. It is a fact that other premises in the area are so controlled and, indeed, premises that have not complied with the Board's instructions have lost licences or had hours of operation reduced. The Board has effective control as indeed do the Environmental Health and the police when dealing with licensed premises. Given that I have a history of only one complaint and that there are effective controls available to deal with licensed premises, I have no objection to the application as it stands."
The appellant also founded on the controls available under licensing law, and stated:
"In order to have a regular extension granted the applicant would have to satisfy the Licensing Board of the tests under section 64 of the 1976 Act and in particular under section 47(1) of the Law Reform (Miscellaneous Provisions) Act 1990 [sic] 'that such an extension is likely to be of such benefit to the community as a whole to outweigh any detriment to that locality'. In the light of the statutory requirement of section 47(1)(b) of the 1990 Act the Council's decision was neither justified nor based on any reasonable factual grounds ... In considering these extensions [viz. extensions granted to other licensed premises in Oban], the Licensing Board will have been obliged to assess the possibility of disturbance and must have come to the view that this was not a serious risk. Of course, if this proves to have been mistaken, the Board can readily revoke the licence extension when it comes up for renewal on an annual basis. Furthermore, if a complaint is made that the extended hours are causing an undue public nuisance, the Licensing Board may impose a restriction order under section 65 of the 1976 Act without waiting for a renewal application."
Thirdly, it was argued that insufficient weight had been given to a planning policy to encourage tourism. Fourthly, it was argued that opening hours should not be a matter for planning control. Reliance was placed first on the statement of Scottish Executive policy contained in paragraph 54 of National Planning Policy Guideline 1 (as revised in 2000). Reliance was also placed upon the Convention right expressed in Article 1 of the First Protocol to the European Convention on Human Rights. In that regard, the appellant submitted:
"This right may only be curtailed if it is 'necessary to control the use of property in accordance with the general interest' ... It is submitted that as the Licensing (Scotland) Act 1976 provides detailed and flexible controls on licensing hours after 11.00p.m. which have regard to the general interest of the community and the locality, a planning condition which is not flexible and cannot change with changing circumstances is not a necessary control. Having regard to the provisions of the Licensing (Scotland) Act 1976, the planning condition is not a proportionate response to any perceived general interest. Specifically,
- It is an unnecessary permanent control because the Licensing Board has a more flexible means of control through the regular annual reviews of extension applications with an ability to respond, upon complaint, to any immediate difficulty.
- There is no evidence that the control is necessary to protect the rights of neighbours when a licensing control is available, particularly as the property has operated without complaint and the relevant council department had no objection on noise or environmental grounds.
- It is not a proportionate response in the circumstances where the Licensing Board is statutorily directed to provide the necessary controls through section 64 of the 1976 Act which requires the Board to be satisfied on a number of aspects before granting a regular extension.
- It is an unreasonable control given the regular extension policy operated by the Licensing Board and the absence of similar planning conditions imposed on other property.
In view of these considerations it is contended that the decision not to waive condition 2 is in contravention of the Human Rights Act."
"Licensing controls are entirely separate matters and are not related to the Council's responsibilities as planning authority."
In relation to the fourth ground of appeal, the planning authority submitted that condition 2 had a basis in law; it pursued a legitimate aim, namely to protect the amenity of the neighbouring residential properties; and it was proportionate to that aim.
"16. Section 25 of the [1997] Act requires that I determine this appeal in accordance with the provisions of the development plan unless material considerations indicate otherwise. The only development plan policies drawn to my attention as being relevant to the appeal are COM 4 and TOUR 1 of the adopted local plan. Having regard to my site inspections and to my reading of the written submissions, I consider the determining issues in this case are whether the removal of condition 2 from the original planning permission for Coasters would be consistent with local plan policy, and whether a decision not in accord with local plan policy is justified by other material considerations.
17. In regard to the first determining issue, I find that local plan policy TOUR 1 is very general in its terms. While extended opening hours might render Coasters more attractive to some visiting patrons, any difference that might produce would be minimal in regard to achieving the overall objective of promoting Oban's role as a major tourist centre. I also agree with the council that any proposal found to have the support of policy TOUR 1 still has to be assessed against other relevant local plan policies. Here that is policy COM 4, and I reject your argument in regard to its applicability. My site visit confirms that a mixed pattern of land use does exist in the locale of Coasters, and this includes residential flats to the north and south. There is also no evidence before me to suggest that the recently completed block of flats to the north is subject to occupancy restrictions, and given its location I would not expect it to be so.
18. While accepting the principle of use of Coasters as a wine bar, the Reporter in the 1989 appeal specifically concluded that the relationship of the premises to residential property justified a cautious approach to opening hours. That was endorsed by another Reporter in 1995. Even allowing for the downturn in tourism and other changes which you claim have occurred, and the further evidence of the reasonably trouble free operation of Coasters, I see no reason to dispute or disagree with the findings of previous Reporters in this regard.
19. Other than in exceptional carefully defined circumstances, planning permission runs with the property concerned. While the evidence appears to indicate the considerate management of Coasters by your client, a future change in ownership or management practices cannot be ruled out, nor can it be assumed that the letting arrangements exercised by your client in relation to the adjoining residential property will continue for all time. I am satisfied in this case that any attempt to make a grant of planning permission personal to your client, or to impose restrictions on the occupancy of adjoining residential property would be inconsistent with the provisions of SDD Circular 4/1998.
20. I agree with previous Reporters that the controls available to the licensing board do not relieve the council from its responsibility to exercise planning control over potential conflicts of use. I therefore reject your argument that control over the opening hours of licensed premises should be the sole responsibility of the licensing board. Despite the changes since 1989 which you seek to rely upon, against the background which I have described above, the potential for conflict between the use of Coasters and neighbouring residential property remains, and that factor is fundamentally important to my decision on the appeal. Your client's case partly relies on the parallel you say exists at other licensed premises in Oban, some only recently approved. While the precise details of these cases are not before me, that does not remove the obligation imposed on me by s.25 of the Act to assess the proposal against relevant development plan policies. That I have already done.
21. In regard to Human Rights arguments, I agree with the council that restricting the opening hours of licensed premises through the exercise of planning control has its basis in law, and that the exercise of that control in this case is proportionate to the need to protect the legitimate rights of the occupiers of neighbouring residential properties.
22. I have taken account of all the other matters raised, but find none that outweigh the considerations on which my decision is based. Taking my conclusions as a whole, I find that the removal of opening hours restrictions in this case would be contrary to the provisions of local plan policy COM 4, and is not justified by other material considerations. Accordingly, and in exercise of the powers delegated to me, I hereby dismiss the appeal and refuse to grant planning permission for the removal of condition 2 from the planning permission dated 21 February 1989."
"(i) that the action is not within the powers of this Act, or
(ii) that any of the relevant requirements have not been complied with in relation to that action."
Under section 239(5)(b), the court can quash a decision on the second ground only "if satisfied ... that the interests of the applicant have been substantially prejudiced by failure to comply with any of the relevant requirements"; whereas the power to quash on the first ground is not qualified by any need for the appellant to show substantial prejudice. The expression "the relevant requirements" is defined by section 239(9) as meaning inter alia "any requirements ... of the Tribunals and Inquiries Act 1992". Schedule 4 to the 1997 Act deals with the determination of appeals by appointed persons (i.e., Reporters) and paragraph 8(1) provides:
"8.-(1) The Tribunals and Inquiries Act 1992 shall apply to a local inquiry or other hearing held in pursuance of this Schedule as it applies to a statutory inquiry held by the Secretary of State, but as if in section 10(1) of that Act (statement of reasons for decisions) the reference to any decision taken by the Secretary of State were a reference to a decision taken by an appointed person."
Section 10(1) of the 1992 Act, so far as material, provides:
"10.-(1) ...where - ...
(b) any Minister notifies any decision taken by him -
(i) after a statutory inquiry has been held by him or on his behalf, or
(ii) in a case in which a person concerned could (whether by objecting or otherwise) have required a statutory inquiry to be so held,
it shall be the duty of the ... Minister to furnish a statement, either written or oral, of the reasons for the decision if requested, on or before the giving or notification of the decision, to state the reasons."
"[I]n order to comply with the statutory duty imposed upon him the Secretary of State must give proper and adequate reasons for his decision which deal with the substantial questions in issue in an intelligible way. The decision must, in short, leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it ... I have only to add that in appeals such as these reasons which fail to pass the tests which I have just discussed will demonstrate a failure to comply with statutory requirements which cannot have been other than prejudicial to the appellant."
"The application of the first two of these presents no problem. If the reasons given are improper they will reveal some flaw in the decision-making process which will be open to challenge on some ground other than the failure to give reasons. If the reasons give are unintelligible, this will be equivalent to giving no reasons at all. The difficulty arises in determining whether the reasons given are adequate, whether, in the words of Megaw J. (in In re Poyser and Mills' Arbitration [1964] 2 Q.B. 467, 478), they deal with the substantial points that have been raised or, in the words of Phillips J. in Hope v Secretary of State for the Environment (1975) 31 P. & C.R. 120, 123, enable the reader to know what conclusion the decision-maker has reached on the principal controversial issues. What degree of particularity is required?"
In answering that question in the context of planning law, Lord Bridge said (at pages 167 to 168):
"Whatever may be the position in any other legislative context, under the planning legislation, when it comes to deciding in any particular case whether the reasons given are deficient, the question is not to be answered in vacuo. The alleged deficiency will only afford a ground for quashing the decision if the court is satisfied that the interests of the applicant have been substantially prejudiced by it. This reinforces the view I have already expressed that the adequacy of reasons is not to be judged by reference to some abstract standard. There are in truth not two separate questions: (1) were the reasons adequate? (2) if not, were the interests of the applicant substantially prejudiced thereby? The single indivisible question, in my opinion, which the court must ask itself whenever a planning decision is challenged on the ground of a failure to give reasons is whether the interests of the applicant have been substantially prejudiced by the deficiency of the reasons given. Here again, I disclaim any intention to put a gloss on the statutory provisions by attempting to define or delimit the circumstances in which deficiency of reasons will be capable of causing substantial prejudice, but I should expect that normally such prejudice will arise from one of three causes. First, there will be substantial prejudice to a developer whose application for permission has been refused or to an opponent of development when permission has been granted where the reasons for the decision are so inadequately or obscurely expressed as to raise a substantial doubt whether the decision was taken within the powers of the Act. Secondly, a developer whose application for permission is refused may be substantially prejudiced where the planning considerations on which the decision is based are not explained sufficiently clearly to enable him reasonably to assess the prospects of succeeding in an application for some alternative form of development. Thirdly, an opponent of development, whether the local planning authority or some unofficial body like Save, may be substantially prejudiced by a decision to grant permission in which the planning considerations on which the decision is based, particularly if they relate to planning policy, are not explained sufficiently clearly to indicate what, if any, impact they may have in relation to the decision of future applications.
Here again, I regret to find myself in disagreement with Woolf L.J. who said, 60 P. & C.R. 539, 557:
'Once it is accepted that the reasoning is not adequate, then in a case of this sort it seems to me that, apart from the exceptional case where it can be said with confidence that the inadequacy in the reasons given could not conceal a flaw in the decision-making process, it is not possible to say that a party who is entitled to apply to the court under section 245 has not been substantially prejudiced.'
The flaw in this reasoning, it seems to me, is that it assumes an abstract standard of adequacy determined by the court and then asserts, in effect, that a failure by the decision-maker to attain that standard will give rise to a presumption of substantial prejudice which can only be rebutted if the court is satisfied that the inadequacy 'could not conceal a flaw in the decision-making process.' But this reverses the burden of proof which the statute places on the applicant to satisfy the court that he has been substantially prejudiced by the failure to give reasons. When the complaint is not of an absence of reasons but of the inadequacy of the reasons given, I do not see how that burden can be discharged in the way that Woolf L.J. suggests unless the applicant satisfies the court that the shortcoming in the stated reasons is of such a nature that it may well conceal a flaw in the reasoning of a kind which would have laid the decision open to challenge under the other limb of section 245. If it was necessary to the decision to resolve an issue of law and the reasons do not disclose how the issue was resolved, that will suffice. If the decision depended on a disputed issue of fact and the reasons do not show how that issue was decided, that may suffice. But in the absence of any such defined issue of law or fact left unresolved and when the decision was essentially an exercise of discretion, I think that it is for the applicant to satisfy the court that the lacuna in the stated reasons is such as to raise a substantial doubt as to whether the decision was based on relevant grounds and was otherwise free from any flaw in the decision-making process which would afford a ground for quashing the decision."
"Use of Conditions
50. Conditions imposed on a grant of planning permission can enable development proposals to proceed where it would otherwise have been necessary to refuse planning permission. While the power to impose planning conditions is very wide, it needs to be exercised in a manner which is fair, reasonable and practicable. Planning conditions should only be imposed where they are:
- relevant to planning;
- relevant to the development to be permitted;
- enforceable;
- precise;
- reasonable; and
- necessary.
Further guidance on conditions is contained in Circular 4/1998 and the associated annex on Model Conditions.
...
Other Legislation
54. Planning decisions should always be made on planning grounds and in the public interest. The planning system should not be used to secure objectives that are more properly achieved under other legislation. The grant of planning permission does not remove the need to seek other statutory consents nor does it imply that these consents will be forthcoming. Even where legal or administrative measures outwith the planning system may exist for controlling a particular activity, this can still be a consideration to which weight is given in reaching a planning decision. If a consideration is material in planning terms, it must be taken into account in reaching a decision. For example, the planning authority should have regard to the impact of a proposal on air or water quality although the regulation of emissions or discharges will fall to be dealt with under other legislation."
Counsel also referred to the Scottish Executive's Circular 4/1998, which sets out Government policy on the use of conditions in planning permissions. Counsel relied in particular on paragraphs 13 and 20 of Annex A:
"13. In considering whether a particular condition is necessary, authorities should ask themselves whether planning permission would have to be refused if that condition were not to be imposed. If it would not, then the condition needs special and precise justification. Planning authorities should also avoid imposing conditions through anxiety to guard against every possible contingency, however remote. The argument that a condition will do no harm is no justification for its imposition; as a matter of policy a condition ought not to be imposed unless there is a definite need for it. The same principles, of course, must be applied in dealing with applications for the removal of a condition under section 33 or 42 of the Act; a condition ought not to be retained unless there are sound and clear-cut reasons for doing so.
...
Non-planning Controls
20. Other matters are subject to control under separate legislation, yet are also of concern to the planning system. A condition which duplicates the effect of other controls will normally be unnecessary and one whose requirements conflict with those of other controls will be ultra vires because it is unreasonable. For example, a planning condition would not normally be appropriate to control the level of emissions from a proposed development where they are subject to pollution control legislation. However, such a condition may be needed to address the impact of the emissions to the extent that they might have land-use implications and/or are not controlled by the appropriate pollution control authority. (For further advice on this subject, see Planning Advice Note 51 Planning and Environmental Protection.) A condition cannot be justified on the grounds that the planning authority is not the body responsible for exercising a concurrent control and, therefore, cannot ensure it will be exercised properly. Nor can a condition be justified on the grounds that a concurrent control is not permanent but is subject to expiry and renewal (as, for example, with certain licences). Even where a condition does not actually duplicate or conflict with another control, differences in requirements can cause confusion and it will be desirable as far as possible to avoid solving problems by the use of conditions instead of, or as well as, by another more specific control."
"(b) that the premises to which an application relates are not suitable or convenient for the sale of alcoholic liquor, having regard to their location; their character and condition; the nature and extent of the proposed use of the premises; and the persons likely to resort to the premises;
(c) that the use of the premises for the sale of alcoholic liquor is likely to cause undue public nuisance, or a threat to public order and safety."
In terms of section 23(1) and (2), the licensing board cannot entertain an application for the grant of a new licence (other than an off sale licence) unless inter alia planning permission has been obtained. Under section 30, the currency of a licence is three years. Section 31 empowers the licensing board to suspend a licence on specified grounds, including "that the use of the premises ... has caused undue public nuisance", if satisfied that it is in the public interest to do so. Section 32 empowers the licensing board to make a closure order if it considers that the premises are no longer suitable or convenient for the sale of alcoholic liquor. Section 53 provides that the permitted hours in licensed premises are 11.00a.m. to 11.00p.m. except on Sundays, when the hours are 12.30p.m. to 2.30p.m. and 6.30p.m. to 11.00p.m. The opening hours permitted under condition 2 of the planning permission in question are therefore the same as permitted hours for Mondays to Thursdays, and longer than the permitted hours for Fridays to Sundays.
"(2) A licensing board may grant an application for an occasional extension of permitted hours in connection with any occasion which the board considers appropriate and such a grant shall authorise the person to whom it was granted to sell or supply alcoholic liquor in the premises to which the application relates during such periods not exceeding one month and between such hours and on such day as may be specified in the grant."
A regular extension can be granted under subsection (3):
"After considering the application and any objections made thereto, a licensing board may grant an application for the regular extension of permitted hours if, having regard to the social circumstances of the locality in which the premises in respect of which the application is made are situated or to activities taking place in that locality, the board considers it is desirable to do so, and such a grant shall authorise the person to whom it was granted to sell or supply alcoholic liquor in the premises to which the application relates during such period in the year succeeding the date of the grant and between such hours and on such days as may be specified in the grant."
Subsection (6) empowers the licensing board to attach such conditions as it thinks fit to the grant of an occasional or regular extension. Subsection (8) provides:
"(8) A licensing board shall not grant an extension of permitted hours under this section if it considers that the extension of permitted hours under this section is likely to cause undue public nuisance or to be a threat to public order or safety."
The criteria to be taken into account by the licensing board when considering an application under section 64 are extended by section 47(1) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990:
"47.-(1) A licensing board shall not grant an application under section 64 of the principal Act for an extension of permitted hours unless it is satisfied by the applicant, taking account of the factors mentioned in subsection (3) of that section -
(a) that there is a need in the locality in which the premises in respect of which the application is made are situated for a regular extension of the permitted hours; and
(b) that such an extension is likely to be of such benefit to the community as a whole as to outweigh any detriment to that locality."
Counsel for the appellant stated, in the course of his submissions, that the current policy of the licensing board, exercising its powers in accordance with the provisions quoted earlier, was to permit regular extensions of permitted hours until 1.00a.m. on Sunday to Thursday nights and until 2.00a.m. on Friday and Saturday nights, i.e. two hours later than condition 2.
"21. Where other controls are also available, a condition may, however, be needed when the considerations material to the exercise of the two systems of control are substantially different, since it might be unwise in these circumstances to rely on the alternative control being exercised in the manner or to the degree needed to secure planning objectives."
Counsel submitted that the considerations material to the exercise of licensing controls were substantially different from those relevant to planning. The responsibilities and criteria of the licensing board were different from those of a planning authority. Nothing had been said in the submissions before the Reporter about any policy applied by the licensing board: the appeal had, however, presumably been brought because it was thought that the licensing board might permit later opening hours than were permitted by condition 2. The Reporter had considered whether condition 2 was necessary for a planning purpose. His reference to a "potential for conflict" was unobjectionable: policy COM 4 was inevitably concerned with potential conflicts of use insofar as it sought to avoid the emergence of actual conflicts. The Reporter had not ignored the licensing regime. He had correctly proceeded on the basis that the licensing board should not be regarded as having "sole" responsibility for opening hours when that matter was also of importance to the planning authority. His approach was based on a recognition that, even given the availability of controls imposed by the licensing board, the possibility would exist of adverse effects upon amenity which would be contrary to the development plan.
"In principle, it seems to me that any consideration which relates to the use and development of land is capable of being a planning consideration. Whether a particular consideration falling within that broad class is material in any given case will depend on the circumstances."
"But the planning authority may be different from the highway authority and they may think that a street must be widened although the highway authority refuse to prescribe an improvement line. I can find no ground for saying that in such a case the planning authority must defer to the views of the highway authority."
Lord Reid considered that the point was in any event covered by section 118 of the Town and Country Planning Act 1947, which provided:
"For the avoidance of doubt it is hereby declared that the provisions of this Act, and any restrictions or powers thereby imposed or conferred in relation to land, apply and may be exercised in relation to any land notwithstanding that provision is made by any enactment in force at the passing of this Act ... for authorising or regulating any development of the land."
Lord Reid continued (at page 529):
"An enactment in force at the passing of the Act must, I think, include a later re-enactment of the same provisions and section 72 of the Highways Act is a provision regulating the development of land. So I cannot accept the argument that planning authorities' powers under the Town and Country Planning Act are insufficient to entitle them to give effect to their views about street widening where no improvement line has been prescribed."
"No doubt, as a matter of sensible administration that would be right, but the court was not entitled to imply that because the licensing authority has been given this express power, that the very wide powers given to the Secretary of State under the Town and Country Planning Act were thereby diminished."
"In our view this also proceeds on a complete misconception. Clearly the decision by the Secretary of State's representative in the planning appeal and the reasons which he gave for that decision were not binding on the licensing committee when they came to consider an application for a permit under section 34 of the Gaming Act 1968. To hold the contrary would be to wipe out the discretion vested in the licensing committee by statute. The planning decision was made by one individual as a result of a view which he took of the evidence before him. Another body, discharging a different statutory function for a different purpose under discretionary powers, was perfectly entitled to reach a different decision."
"It is clear beyond any doubt that the environmental impact of emissions to atmosphere is a material consideration at the planning stage.... It follows, in my judgment, that the Secretary of State could not lawfully adopt a policy of hiving off all consideration of such environmental effects in their entirety to the EPA regime. But, just as the environmental impact of such emissions is a material planning consideration, so also is the existence of a stringent regime under the EPA for preventing or mitigating that impact and for rendering any emissions harmless. It is too simplistic to say 'the Secretary of State cannot leave the question of pollution to the EPA'".
The deputy judge's decision, refusing to quash the outline consent, was upheld on appeal. The case was somewhat differently argued before the Court of Appeal; but agreement was expressed with the conclusions reached by the deputy judge (at page 96), and the passage which I have quoted from his judgment was cited with approval (at page 91).
"I do not accept that it would be correct to grant planning permission for the proposal as presented and effectively hand over responsibility for defining the use and managing its effects to another regime. To my mind the proposal and its future operation must be satisfactorily secured in planning terms, before it passes to the licensing authority for any further control necessary."
"In my judgment, [counsel's] contention that the Inspector, having found that one sort of café/bar was acceptable, was required by policy (he does not put it as a requirement of law) to grant permission and leave it to the licensing process so to limit the use as to avoid the potential adverse effects that concerned him - is unsustainable. There is no policy to this effect. In any event, the circumstances of the present case were such as to entitle the Inspector, and probably to oblige him, to approach the matter as he did. Under [the structure plan], the prevention of crime was a material consideration. Under [the local plan].... it was material for him to consider whether the development would have an adverse effect on the amenities of the neighbourhood..... In order to take account of these matters, in my view, the Inspector necessarily had to have regard to the particular nature of the eating and drinking establishment that was proposed.
The appellant's proposal was for what was described as a café/bar, and he identified two establishments.... to illustrate what that description would include..... The Inspector found that an operation like [the restaurant-type establishment] would have a positive effect on the area, but that a [public house] type operation would have a negative effect. I can see no reason why, having come to this conclusion, the Inspector should then have been compelled to grant planning permission in terms that would permit the very type of operation he found to be unacceptable and one that was contrary to planning policy. On the contrary.... it was undoubtedly in accordance with policy that he should refuse permission."
"I agree with the previous Reporters that the controls available to the licensing board do not relieve the council from its responsibility to exercise planning control over potential conflicts of use. I therefore reject your argument that control over the opening hours of licensed premises should be the sole responsibility of the licensing board."
This passage encapsulates the point which I have endeavoured to make at greater length: that, since the opening hours create a potential conflict between the neighbouring land uses, it is both proper and necessary for them to be controlled by the planning authority, notwithstanding that they are also subject to control by "another body, discharging a different statutory function for a different purpose" (to adopt the expression used in J.E. Sheeran (Amusement Arcades) Ltd v Hamilton District Council). The Reporter's reasoning on this point is in my opinion clear. Although he expressed himself succinctly, he was not required to attempt a full explanation of the legal relationship between planning and licensing: to adopt the formulation of Phillips J. in Hope v Secretary of State for the Environment which was approved in Save Britain's Heritage (at page 167), the Reporter's words enable the reader to know what conclusion he reached on this issue.
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
"59. As was pointed out in the James and Others judgment of 21 February 1986 [(1986) 8 EHRR 123, para.37], the second paragraph of Article 1 of the Protocol has to be construed in the light of the general principle set out in the first sentence of this article. This sentence has been interpreted by the court as including the requirement that a measure of interference should strike a 'fair balance' between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. The search for this balance is reflected in the structure of Article 1 as a whole and hence also in the second paragraph. There must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised."
Counsel submitted that it was disproportionate to impose a permanent and inflexible control under the planning legislation when there existed an equally rigorous regime under licensing law which was flexible and allowed for periodic reviews, and which required (under section 64(8) of the 1976 Act, and section 47(1) of the 1990 Act) the striking of a balance between the relevant interests. Counsel also emphasised the absence of objection by the Environmental Health Department. In relation to the application of the principle of proportionality, and the issue of deference to the executive or legislature within the "discretionary area of judgment", counsel adopted the statement of the law in Reed and Murdoch, A Guide to Human Rights Law in Scotland, at paragraphs 3.94 and 3.95, including the passages cited there from the speech of Lord Hope of Craighead in R v DPP, ex parte Kebilene [2000] 2 AC 326 and the judgment of Simon Brown L.J. in R v Secretary of State for the Home Department, ex parte Turgut [2001] 1 All ER 719. Counsel also cited Gasus Dosier-und Fördertechnik v Netherlands (1995) 20 E.H.R.R. 360.