Forster v Secretary of State for Communities and Local Government & Anor [2016] EWCA Civ 422

Case No C1/2015/3287[2016] EWCA Civ 422
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION, PLANNING COURT
(MR JUSTICE LINDBLOM)
Venue Royal Courts of JusticeDate Thursday, 18 February 2016
Strand
London, WC2A 2LL
B E F O R E:
LORD JUSTICE LAWS
PAULINE FORSTER
Appellant/Claimant
-v-
(1) SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
(2) LONDON BOROUGH OF TOWER HAMLETS
(3) SWAN HOUSING ASSOCIATION LTD
Respondents/Defendants
(DAR Transcript of
WordWave International Limited
Trading as DTI
8th Floor, 165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Ms Annabel Graham Paul (instructed by Richard Buxton Environmental And Public Law) appeared on behalf of the Applicant
Richard Ground (instructed by Dentons) appeared on behalf of the Third Respondent
J U D G M E N T
Between
ForsterAppellantSecretary of State for Communities and Local Government & AnorRespondent

LORD JUSTICE LAWS:

This

[1]is an application for permission to appeal against the decision of Lindblom J as he then was given in the Administrative Court on 6 August 2015. The judge dismissed the applicant's claim brought under section 288 of the Town and Country Planning Act 1990 seeking an order to quash a planning permission granted in October 2014 for the demolition of a single-storey building in Stepney and the erection in its place of a three-storey building with commercial uses on the ground floor and six flats on the floors above. The applicant also applied for the extension of a protective costs order (PCO) granted in the High Court by Stewart J on 2 January 2015. Permission to appeal to this court was refused on consideration of the papers by Lewison LJ on 11 January 2016.[2]The premises in respect of which planning permission was granted used to be Stepney's Nightclub. It is adjacent to the George Tavern. The applicant is the freehold owner of the George which is also her home. She describes the George in her counsel's skeleton argument (accurately as far as I am aware) as follows:
"The public house is a live music venue and the premises has a live music venue licence permitting live music events to be held until 12.00 am throughout the week and also permits live music events to be followed by DJ music until 3 am on Fridays and Saturdays. It employs 11 young people and provides a platform for hundreds of artists from all cultures and backgrounds, local and international. The appellant has been restoring the George Tavern for a number of years and that restoration is largely funded by its commercial activities, principally through its being let as a location for film, music videos and for fashion shoots. Part of the upstairs is used as an artists' studio and also as a studio for fashion photography."

The judge described the course of the planning application as follows:

"2. The application for planning permission for the redevelopment of the site was submitted by the third defendant, Swan Housing Association Ltd, to the second defendant, Tower Hamlets London Borough Council, in October 2011. A previous scheme had failed on appeal in December 2008. In January 2012 and again in June 2012 Ms Forster objected to this new proposal, fearing that residents of the dwellings in the new building on the site might complain about the continued use of the George Tavern for live music, the making of films and other activities. The proposal was submitted to the council in three applications – for planning permission, conservation area consent and listed building consent. The application for conservation area consent was required because Stepney's Nightclub is an unlisted building in the Commercial Road Conservation Area; the application for listed building consent because the George Tavern is a grade II listed building, as is the adjoining building at 2a Aylward Street and Swan's proposal included alterations to the external walls of both of those buildings. The council refused all three applications in July 2013. In January 2014 Swan appealed against those decisions to the first defendant, the Secretary of State for Communities and Local Government, who appointed an inspector ... to determine the appeals on his behalf. The appeal was decided on written representations. The inspector's decision letter allowing all three appeals is dated 28 October 2014."
[4]As the judge noted at paragraph 7, the first reason why the local authority refused permission in July 2013 was that:
"The amenity of the new residents within the proposed three-storey building and the area generally would be detrimentally affected by reason of general disturbance and significant noise emanating from clients using the outside beer garden area in Aylward Street and from the George Tavern public house building with live music licence including associated plant."
[5]Lindblom J proceeded to describe the appeal proceedings in some detail. He noted at paragraph 26:
"In paragraph 5 of his decision letter the inspector identified 'the main issue' in the appeal as being 'whether the future residents of the proposed scheme would be subjected to unreasonable levels of noise'."
[6]On the basis of acoustic evidence submitted by the developers (the third respondents) the inspector concluded that the living conditions of future residents in the new flats could be protected from noise generated locally subject to appropriate planning conditions (see paragraph 21 of the decision letter). He also concluded (paragraph 17) that there would be no unreasonable effects for the George by way of loss of daylight or sunlight. Mr Ground for the third respondents appearing before me today drew my attention also to paragraph 8 of the decision letter where the inspector notes the concern that in effect gives rise to the principal ground which the applicant seeks to canvas in this court. He said:
"Concerns are expressed by the owner of the public house as well as many others, that the presence of residential units on the appeal site will give rise to restrictions on the functioning of the public house and its ability to host music events."
In the result the appeal was, as I have indicated, allowed by the Secretary of State.[7]Of the six points taken before Lindblom J on the section 288 application only the fifth is material to the issues now sought to be raised in this court. The issue was:
"Whether [the inspector] failed to take into account as a material consideration the harm the development would do to the viability of the George Tavern."
[8]The judge dealt with ground 5 at paragraphs 76 to 81 of his judgment. At paragraph 76 he summarised the applicant's case. His description of it marries with the way it is set out in the applicant's skeleton in this court. The judge said this:
"76. Ms Graham Paul submits that the inspector failed to have regard to the potential harm to the operation of the George Tavern as an established business, even if condition 9 turned out to be effective. The testing of the 'sound insulation' measures provided in the new development might show them to be adequate before the flats were occupied. But even if it did, this would be no guarantee that residents of those flats would not in the future complain to the council about noise coming from the George Tavern. Such complaints might lead to an abatement notice being served, or 'the revocation of the [George Tavern's] late night music [licence] on the ground that there was a breach of the licensing objective of prevention of public nuisance', or an injunction being granted to prevent a private nuisance. It would be no defence to a claim in nuisance that the residents of the new flats had come to the nuisance. The inspector also overlooked the use of the George Tavern as a studio for artists and photographers and as a film location when he was considering the reduction in sunlight and daylight which the development would bring about. In both respects the potential harm to Ms Forster's business was a material consideration in the appeal."
[9]On the noise issue I need only set out paragraph 77 and part of 79:
"77. Those submissions are not well founded. The inspector did not fail to grasp the true nature of Ms Forster's objection to the proposed development. In stating the main issue in the appeal to be 'whether the future residents of the proposed scheme would be subjected to unreasonable levels of noise' (paragraph 5 of the decision letter), and in acknowledging Ms Forster's assertion 'that the presence of residential units on the appeal site will give rise to restrictions on the functioning of the public house and its ability to host music events' (paragraph 8), he effectively recognized the matters about which she was mainly concerned. If, as he concluded, residents of the flats in the new development were not going to be subjected to unreasonable levels of noise, it would follow that those residents would not be likely to complain about such noise and that the spectre of future proceedings against Ms Forster could therefore reasonably be discounted. ... 79. ... But in any event the inspector's task was to make planning judgments on the land use planning issues before him, and not to anticipate the likelihood or outcome of future proceedings against Ms Forster as owner of the George Tavern. He cannot be criticized for not venturing into the law of nuisance. His remit was to determine Swan's appeal on the planning merits, having regard to the public interest. That is what he did. The issues he discerned in the appeal were truly planning issues, the main one being whether planning permission should be withheld because residents of the flats in the proposed development would suffer unreasonable levels of noise. Having considered those issues, he could see no reason for planning permission to be refused."
[10]As to daylight and sunlight

the judge said this at paragraph 80:

"Contrary to Ms Graham Paul's submission, [the inspector] did not fail to consider what she described as the 'abnormally sensitive uses' on those upper floors. He did not neglect this aspect of Ms Forster's objection, including her fear that the use of her premises 'as a location for film, music videos and for fashion shoots' would be jeopardized. As he said at the end of paragraph 17 of his letter, he was satisfied that the development would have 'no unreasonable effects' on daylight and sunlight. This was classically a judgment for him to make, and with which the court cannot, in my view, properly interfere. I cannot see how any more detailed reasons could be expected here. They would only elaborate on what was, in fact, a straightforward exercise of planning judgment."
[11]I have been assisted this morning by submissions from Miss Graham Paul for the applicant and Mr Ground for the developers. I propose to grant permission to appeal. The applicant may very well have an uphill struggle but I think there is a real question here. There may be a likelihood or possibility of future complaints from occupiers of a prospective new development about noise or other effects emanating from an existing development, and the result may be proceedings or issues of one kind or another resulting in a loss or diminution of business at the existing development. That is what is said is facing the George Tavern in this case. How far is such a risk to be taken into account as a material consideration in deciding whether to grant planning permission for the new development? This is said to be an important issue in relation to live music venues such as the George, perhaps particularly here in London.[12]I can see the difficulties in Miss Graham Paul's case: how is a decision maker supposed to take this into account? How can he assess the risk if he is required to do so? However, the fact that the planning authorities may conclude that levels of noise will be no more than reasonable (as happened here) does not I think in law or fact exclude the possibility of later claims which may be found to have weight. The extent to which the planning system should have regard to such potential indirect outcomes of a permission is a matter in my view which justifies an appeal to this court.[13]There is an argument as to daylight and sunlight also sought to be raised by Miss Graham Paul. It is put in this way in the skeleton:
"Both the learned judge and the inspector erred in law by equating acceptability for normal use with acceptability for artistic and photographic use. The planning judgment was tainted by that error of law and the inspector ought to have acknowledged that a higher quality of daylight and sunlight is required to make the venue attractive for such uses and considered expressly whether the impact of the development was acceptable in those terms."
[14]I have to say that had this stood alone I rather doubt whether I would have given permission to appeal but in the circumstances I will not shut it out. Permission therefore is granted.[15]There is as I have said also an application to continue or extend the PCO granted by Stewart J. It appears that the Secretary of State had no opportunity to object before Stewart J although it is certainly right that he did not seek to set aside the decision after it was made. The Secretary of State is moreover prepared to accept that the claim falls within the Aarhus Convention for the purpose of the determination of this application on paper (see footnote 2 on page 3 of the Secretary of State's skeleton). In my judgment the application falls to be determined on normal principles following Corner House [2005] 1 WLR 2600. On that approach I express my conclusions briefly as follows:(1) The alleged threat to the music business at the George is by no means unique; live music venues in London and elsewhere are, it is said, facing serious difficulties. I am inclined to the view that the claim that these issues are of general public importance is not of the strongest. However it has considerable force, and it seems to me to be a factor weighing in favour of the grant of a PCO.(2) It is right that the applicant has a very considerable private interest in the outcome. I acknowledge that that by no means automatically shuts her out, but it is on these facts a factor weighing against a PCO; although as Miss Graham Paul has submitted the evidence is that the applicant puts much of the business profits back into the restoration of the George and the betterment of the activities there.(3) Miss Graham Paul rightly submits, as I understand the matter, that if this were a judicial review claim of a local authority decision to grant permission there would be an automatic PCO at any rate at first instance. That seems to me to be a factor going to some extent in favour of the grant of a PCO here.(4) The applicant's finances. I note the observations made in the Secretary of State's skeleton at paragraph 19 on this topic. The applicant is described by her solicitor as "ordinarily wealthy" which I understand to have become something of a term of art in this kind of context. Her legal team have, I am informed, agreed to enter into a full conditional fee agreement (CFA) for the appeal. It is said that the applicant has given no details of her capital assets or documents but there certainly is a certain amount of detail before me not least as to her ownership of the George, its value and some other matters.[16]I have found this a delicate balance to strike. In the result I propose to grant or extend the PCO but on different terms from those ordered by Stewart J. At paragraph 33 of his skeleton argument Mr Westaway for the Secretary of State put forward the possibility of a PCO in this court with a cap on the applicant's liability of £10,000 and a reciprocal cap on her liability for adverse costs in the sum of £20,000. I propose to adopt that and will make a PCO in those terms.

Cited in 1 later judgment