Forster v The Secretary of State for Communities and Local Government & Ors [2016] EWCA Civ 609

Case No C1/2015/3287[2016] EWCA Civ 609
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2015] EWHC 2367 (Admin)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
Queen's Bench Division
Administrative Court
Planning Court
Mr Justice Lindblom
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 29/06/2016
Before
LORD JUSTICE LAWSLORD JUSTICE McFARLANELORD JUSTICE CHRISTOPHER CLARKE
Between
ForsterAppellantThe Secretary of State for Communities and Local Government and OrsRespondents
Annabel Graham Paul (instructed by Harrison Grant Solicitors) for AppellantNed Westaway (instructed by the Government Legal Department) for Secretary of StateRichard Ground QC (instructed by Dentons UKMEA LLP) for Third RespondentHearing Hearing date: 8 June 2016
Judgment
[1]This is an appeal, with permission granted by myself after a hearing on 18 February 2016, against the decision of Lindblom J as he then was given in the Administrative Court on 6 August 2015 ([2015] EWHC 2367 (Admin)). The judge dismissed the appellant’s claim brought under s.288 of the Town and Country Planning Act 1990 seeking an order to quash a planning permission granted in October 2014 by the Secretary of State’s Inspector (on appeal from a refusal by the London Borough of Tower Hamlets). The permission was 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. Permission to appeal to this court was originally refused by Lewison LJ on consideration of the papers on 11 January 2016.[2]The premises in respect of which the planning permission was granted used to be Stepney’s Nightclub. The appellant is the freehold owner of the George Tavern, which is also her home. The George is adjacent to Stepney’s Nightclub. In her submission (composed by herself) to the local planning authority opposing the planning application the appellant described the activities at the George as follows:
“Live music venue – on Friday and Saturday nights we remain open until 3 am and have live music, performances and events and it is these nights that bring in the most revenues (see attachment of income and outgoings…which show that live music nights account for 82% of the George’s revenue despite only representing 33% of the days that we are open). It is essential for the business that we keep our late licence on these nights. The George Tavern is a quiet local during the week and we barely cover our costs on week nights. If our trading hours were reduced and our live music licence lost due to noise complaints from a nearby residential development, the George Tavern would no longer be financially viable, which would result in closure. The local community would lose yet another local pub, live music and performance venue. Location business –anothercrucial aspect of the business is renting out the rooms above the George as locations for photography and film shoots. The George is popular for locations and one of the reasons we get bookings is because of the historical features such as the staircase and the original interior. The fact that the George has 360 degrees natural light is also crucial to securing bookings. The original staircase is a beautiful feature of the George, which runs from the first to the third floors. It is used in almost every location shoot. The staircase gets its light solely from the east elevation, which would be blocked if the proposed development goes ahead. This would seriously jeopardise my locations business. With the bar sometimes making a loss, the money that I earn from locations bookings not only pays the mortgage on the building, but also supports the bar when it does not bring in enough revenue.”
I shall have to refer further to the appellant’s representations when I come to deal with counsel’s arguments.[3]The Secretary of State’s Inspector in October 2014 allowed the developers’ appeal not only in relation to the planning permission, but also in relation to Conservation Area Consent (Stepney’s Nightclub was in the Commercial Road Conservation Area) and Listed Building Consent (the George and another adjacent building were listed, and the developers’ proposal included alterations to their external walls).[4]Six issues were raised before Lindblom J, of which the fifth prefigures the first question in this appeal. It was expressed thus:
“whether [the Inspector] failed to take into account as a material consideration the harm a development would do to the viability of the George Tavern”
. More specifically, the question is as to possible future complaints from residents of the new flats about noise from the George, notwithstanding the Inspector’s conclusion (to which I will refer shortly) that the residents would not be subjected to unreasonable levels of noise. Ms Graham Paul for the appellant submits that there is a risk, unacknowledged by the Inspector, that such complaints might ultimately lead to the revocation of her late night music licence or the grant of an injunction in a private nuisance claim which would curtail the activities that keep the George going.[5]The appellant had another point about reduced sunlight and daylight, given the use of the George as a studio for artists and photographers and as a film location. In the parties’ written submissions this received less emphasis than the issue on noise, and in granting permission to appeal I said that had it stood alone “I rather doubt whether I would have given permission…”. In the event it has occupied centre stage; I will return to that.

THE NOISE ISSUE

[6]I should note by way of preliminary that a large number of documents have been included in the court papers, as I understand it at the appellant’s behest, which were not before the judge below. They include press reports assembled (I assume) to demonstrate the importance of the noise issue for businesses like that carried on at the George in London and elsewhere. In fairness I should say that Ms Graham Paul made no application at the hearing to have this material admitted as fresh evidence. Had she done so for my part I would have refused the application. There is no proper basis for its introduction at this stage, and it would not have advanced the adjudication of the issue.[7]The impact of noise from the activities carried on at the George upon the residents in the proposed development yields the first reason why in July 2013 the local planning authority, Tower Hamlets, refused planning permission:
“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.”

The Inspector’s Decision

[8]On appeal the Inspector at paragraph 5 of his decision letter identified the “main issue” as being “whether the future residents of the proposed scheme would be subjected to unreasonable levels of noise”. He referred to the George at paragraph 8:
“The George Tavern operates as a public house and a live music venue, holding music events late into the night, until as late as 0300 hrs. The use of the public house also involves the use by patrons of the open area on Aylward Street as a beer garden. The site and the surroundings are also subjected to noise from the surrounding roads, most notably Commercial Road. 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. I shall divide the consideration of noise into various categories.”
Thereafter the decision letter contains no further reference to the George, save for paragraph 17 (to which I will come) which is relevant only to the daylight issue.[9]The Inspector had expert acoustic evidence from the developer (the third respondents). He also made a site visit. There is evidence that the site visit was comprehensive, and the appellant, who attended it, had and took the opportunity to point out areas which gave rise to her concerns. The Inspector considered the evidence relating to noise at paragraphs 9 – 15 of his decision letter. He concluded at paragraph 21 that “with suitable conditions, the living conditions of future residents can be protected from noise generated locally.” It is apparent that this conclusion was arrived at on the premise that insulation measures proposed by the experts would be in place; and impliedly, therefore, on the footing that the windows of the flats would be closed. There was some discussion at the hearing about the implications of this, and I will briefly refer to it. I should say at this stage that in my view it is of the first importance that there is no challenge in this court to the Inspector’s conclusion at paragraph 21 that the noise levels would be reasonable.[10]The Inspector’s decision letter contains no distinct reasoning concerning the consequences (if any) for the George of any complaints about noise that might be made by residents of the new flats.

The Judgment Below

[11]Giving judgment on the statutory appeal, Lindblom J turned to what was the fifth issue before him (giving rise to the noise issue) at paragraphs 76 – 81. He introduced it thus:
“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… 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.”
[12]As for the argument about possible future complaints of noise,

the judge said this:

“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 recognised 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.”

The Appellant’s Argument

[13]Ms Graham Paul assaults this reasoning. She submits first that the impact of a prospective planning permission on the viability of a neighbouring business may in principle amount to a material planning consideration; and so in principle it may. Mr Westaway for the Secretary of State expressly accepts as much. Then she submits that the potential threat to the appellant’s business posed by the possible revocation of the George’s late night music licence, or an injunction in a suit for private nuisance (in either case, as I have said, following complaints of noise from the George’s new neighbours) constitutes just such a planning consideration in this case; yet the Inspector failed to consider, and certainly failed to assess, such risks.[14]Ms Graham Paul disavows any suggestion that the Inspector should have entered into the details of the licensing laws or the law of nuisance. But, she submits, he was obliged to acknowledge the existence on those fronts of potential risks to the appellant’s business: and she said the judge was wrong at paragraph 77 to discount the possibility of likely complaints by future neighbours merely because the inspector had found in planning terms that they would not be subjected to unreasonable levels of noise. She submits that the Inspector should at least have weighed the potential risks to her business against the benefits of the appeal’s scheme.[15]Granting permission to appeal after the hearing at which both the appellant and the developers were represented, I said (paragraph 12) “the fact that the planning authorities may conclude that levels of noise will be no more than reasonable… 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”.

Conclusions on the Noise Issue

[16]As I have said, the impact of a prospective planning permission on the viability of a neighbouring business may in principle amount to a material planning consideration. But in my judgment, if such an argument is to be advanced it should be clearly raised before the Inquiry Inspector (if there is an appeal to the Secretary of State) with a sufficient degree of particularity and supporting evidence to enable the Inspector to reach an objective and reasoned conclusion on the point. If it is advanced in purely general terms, that would most likely do no more than invite the inspector to embark upon a merely speculative exercise; and such a process would be unorthodox and illegitimate. No doubt there are situations where the threat posed by a prospective planning permission to a neighbouring business will stare the Inspector in the face: the prospect of a new retail outlet across the street from an established shop selling the same range of goods is an instance. But in other cases, and this is surely one, the alleged effects of the proposed development will by no means be so clear. Where that is so, an evidence-based case needs to be made.[17]In my judgment no such case was presented by the appellant to the Inspector.[18]I accept – indeed there is no doubt – that the appellant voiced her concern about what she saw as a threat to her business. In a passage I have already cited from her submission to the local planning authority, it will be recalled that this appears:
“If our trading hours were reduced and our live music licence lost due to noise complaints from a nearby residential development, the George Tavern would no longer be financially viable…”
Later in the same document:
“However much sound insulation is provided, the noise is eventually going to be heard from accommodation so close. In the summer the proposed windows and balcony doors will be left open. What use is any sound insulation incorporated by the applicant in its development then? … The proposal for flats with balconies overlooking this space is bound to result in a limitation of use being brought against The George. However well acoustically insulated flats may be, their windows and doors are sure to be open in the summer and complaints are sure to arise. This can be foreseen now and is itself another reason demonstrating that residential accommodation is unsuitable for this location.”
[19]That document was, as I have said, submitted to the local planning authority; but it is common ground that at the appeal stage it will have been placed before the Inspector. In a later submission (undated, but sent as I understand it in June 2012) the appellant said this:
“First of all I would like to draw your attention to the fact that this proposal is in direct contravention of current and local planning policies. The developer has not demonstrated that the proposed development would be acceptable in terms of noise, and this fact alone raises the very real risk of complaints about activities in the George, which would very possibly lead to revocation of our late night music license [sic].”
In an email letter dated 3 March 2014 (to which I shall have to refer further in dealing with the daylight issue), addressed directly to the Inspector, she made further observations which she said “should be considered in addition to those raised to contest the original application”. The appellant stated:
“In summary, there is a very real risk that I will be forced to close The George Tavern if permission is granted for the development as the development will have a very serious adverse impact on my income stream from both my bar and photographic/film location businesses. It is highly likely that I will lose my live music license [sic] if permission is granted for residential use for the adjacent site, which will have an enormous detrimental impact on my bar business.”
[20]It is notable that in her submission of June 2012 the appellant aligned her case on noise to an assault on the noise assessments advanced by the developer (“the developer has not demonstrated…”). The submission of March 2014 is cast in general terms. So are the appellant’s observations set out in her original representations made to the local planning authority.[21]There are, certainly, references to a risk that the appellant’s live music licence might or would be lost. But the case she seeks to make is that such a risk (or the risk of an injunction) might eventuate as a result of complaints about noise notwithstanding a conclusion by the Inspector that the noise levels would be reasonable. In my judgment such a case would require chapter and verse – at least some material, if it could be found, to raise the possibility that the licensing or nuisance regime might reach a different conclusion, and to enable the Inspector to form some assessment of the degree of risk involved. Nothing of the kind was put before the Inspector. He was in no position to make any judgment as to the gravity of the risk which the appellant feared. The fact (to which Ms Graham Paul adverted) that the Inspector had, at least, information as to the noise levels which would affect the new development cannot provide an objective basis upon which the Inspector might measure, even roughly, the likely response of a licensing committee or common law judge to future complaints from the residents.[22]Ms Graham Paul also submitted that the Inspector might have held that any risk of the loss of the George’s licence would be unacceptable. But the appellant’s case was not advanced in such stark terms. If it had been, given the body of support in favour of the development (whose details I need not describe), there must at least be a question whether such a conclusion would pass the Wednesbury test ([1948] 1 KB 223), despite the elementary rule that planning judgment is firmly in the bailiwick of the merits decision-maker. The reality is that if a substantive case was to be made that the George would be at risk despite a favourable conclusion on noise by the Inspector, there would have to be material enabling a sensible assessment to be made of the risk’s extent.[23]However Ms Graham Paul acknowledged – indeed, asserted – that it might well have been impossible for the appellant to produce distinct evidence as to the likelihood of the loss of her licence or the grant of an injunction. I think that is right as a matter of common sense; but it only goes to show that any attempt at such a predictive exercise is bound to be speculative. The fact (if it be such) that neither the appellant, nor I suppose anyone else, was in any position to support the case on risk with evidence as to the likely outcome of future complaints in contexts other than planning cannot require the Inspector to confront the issue on no evidence. On the contrary it lends support to the judge’s conclusion at paragraph 79: “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”.[24]I would therefore reject the appellant’s case on the noise issue. There are two further points by way of postscript. First I would accept Mr Westaway’s argument (skeleton, paragraphs 23 – 25) that while a licensing committee is not bound to follow a planning decision-maker’s conclusion, nor vice versa, each will and should have regard to the other where both make decisions in the same context. That being so I would reject Ms Graham Paul’s submission (skeleton paragraph 36) that licensed operators such as the appellant are “falling into a void” between separate legal regimes. Moreover I think the judge was in error at paragraph 77 in holding that “if… 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…” Humanity being what it is, people are liable to complain about anything; the question here is whether there is any objective possibility of quantifying, however roughly, the likely prospects of success of such complaints. There is none.[25]The second and final point concerns the fact (to which I have referred in passing) that the Inspector’s conclusion on noise proceeded on the implicit basis that the windows of the flats would be closed. At the hearing my Lord McFarlane LJ raised the possible significance of this feature: residents would be likely to open their windows in fine weather (or would wish to do so), and if they did, increased levels of noise from the George might fuel complaints. However no point about noise and open windows was taken by the appellant before Lindblom J, nor in this court. So far as I can see the only reference in the planning process to open windows is the passage in the appellant’s submission to the local planning authority which I have cited at paragraph 18. Moreover it seems to me that such a point, if it had been raised, would have been material to the Inspector’s conclusion (paragraph 21) that the noise levels were reasonable; however, as I have emphasised (paragraph 9), there is no challenge in this court to that conclusion.[26]In fact Ms Graham Paul did not accept that planning permission could properly have been refused on the footing that the noise with the windows open would have been unreasonable, as I understood her because the developers had put forward a proper sound insulation system. That seems to me to be something of a non sequitur. If there was any point to be taken about noise and open windows, it would have gone to the Inspector’s paragraph 21 conclusion. It has no independent force as a buttress for the appellant’s fears of risk to her licence; and if it did, it would falter on the want of any means of quantifying the risk.

THE LIGHT ISSUE

[27]The Inspector addressed the development’s implications for natural light in the interior of the George in a single paragraph:
“17. Although the Council appear to be satisfied about the effects on residents within the adjacent public house, objections have been received in relation to these direct effects. I was able to gain access to the residential upper floors within the public house and to look out over the appeal site. Furthermore, the appellants submitted with the appeal an assessment of the effects of the proposal on daylight and sunlight received at the neighbouring property. As a result of my own consideration of this matter and in the absence of any evidence to the contrary, I accept the conclusions set out therein, that there would be no unreasonable effects in this respect.”
[28]At paragraph 80 of his judgment Lindblom J said this:
“I also accept the submissions of Mr Westaway and Mr Ground on the inspector's consideration of the likely effects of the proposed development on daylight and sunlight reaching the George Tavern. The inspector dealt with this matter in paragraph 17 of the decision letter. His conclusion matched that of the expert assessment on the effects of the development on daylight and sunlight, submitted by Swan with their application for planning permission in October 2011. The council had not opposed the development on these grounds. But the inspector came to his own judgment upon it, having regard to the material before him, and to what he had seen on his site visit, when he visited the upper floors of the George Tavern and looked out over the appeal site. Contrary to Ms Graham Paul's submission, he 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.”
[29]The appellant had raised specific concerns as to the effects of loss of light in the George (as she saw it) having regard to its use for film and photographic location shoots. She placed particular emphasis on the staircase. I will repeat this passage from her original submission to the local planning authority, under the heading “Location Business”:
“The original staircase is a beautiful feature of the George, which runs from the first to the third floors. It is used in almost every location shoot. The staircase gets its light solely from the east elevation, which would be blocked if the proposed development goes ahead. This would seriously jeopardise my locations business.”
Later in the same document this appears:
“The window onto the main stair landing between first and second floor is a set piece for almost all users. To deny this direct sunlight and much of its changing qualities of light would be a serious loss.”
There is no reference to loss of light in the appellant’s June 2012 submission. However in her letter to the Inspector of 3 March 2014 she said this:
“The proposal will also result in a serious loss of light to the upper floors of The George Tavern, which will severely impact on my location business as further described below... If the proposed application were to be approved… I would lose the sun light that pours through the windows onto the wide staircase and landings, the bedroom, part of the kitchen and my artists studio. If this natural source of light were to be denied or compromised, I would lose an essential part of my revenue, which is not only important to the restoration of the building, but also subsidizes the running and upkeep of the George Tavern bar. This is an important factor and should be seriously taken into account.”
[30]These concerns are not referred to in paragraph 17 of the decision letter. It is, of course, well recognised that such decisions are to be read with a certain degree of latitude. As Lindblom J said in Bloor Homes East Midlands Ltd [2014] EWHC 754(Admin) at paragraph 19:
“Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to ‘rehearse every argument relating to each matter in every paragraph’ (see the judgment of Forbes J in Seddon Properties v Secretary of State for the Environment (1981) 42 P. & C.R. 26, at p.28).”
But the appellant’s point about light (especially on the staircase) and the effect of its diminution on her business was specific and distinct. There was, it is true, nothing about it in the local planning authority’s presentation to the Inspector (they of course had refused planning permission), and it is not clear how far the issue received any emphasis at the site visit. Moreover the appellant’s original submission to the local planning authority was more pointed, certainly in relation to the staircase, than her later letter to the Inspector. But in my judgment the issue was sufficiently flagged to require the Inspector to deal with it in terms; and he did not.[31]That conclusion might, I acknowledge, be undermined or indeed refuted if the evidence before the Inspector demonstrated that on the facts there was nothing in the point. But that is not the case. Dr Defoe’s expert report, commissioned by the developers, has this reference to the staircase on the third page:
“The flank elevation of the George Tavern faces almost due east, from which it does benefit from the morning sunlight at present and, although this will be almost totally eliminated by the proposed development, it should be noted that the ‘rooms’ affected are a staircase at first second and third floor levels, and what might conceivably be bedrooms to the rear of the second and third floors.”
The report proceeds to discuss the development’s effect on light through “two existing windows serving habitable rooms” and concludes that they “will experience a negligible reduction in VSC [‘vertical sky component’ – a measure of ‘the amount of skylight falling on a vertical wall or window’]”. As I understand it – at the hearing we were shown a number of illustrative materials – these are not windows giving onto the staircase.[32]In the circumstances it is by no means clear that the appellant’s apprehensions concerning light (especially upon the staircase) have objectively been set at rest. In my judgment the Inspector was bound to deal with them and did not do so. I do not think, with respect, that the judge was entitled to conclude at paragraph 80 that “[the Inspector] did not neglect this aspect of Ms Forster’s objection [the ‘abnormally sensitive uses’], including her fear that the use of her premises ‘as a location for film, music videos and for fashion shoots’ would be jeopardized”.[33]I suspect, though this does not advance the matter, that the significance of the appellant’s concerns may have been misplaced by the Inspector given the range of materials he had to consider. If so, it is perhaps an illustration of the need for vigilance on the part of a decision-maker dealing with a case, as happened here, on written representations only.

OVERALL CONCLUSION

[34]I would allow the appeal on the light issue only. If my Lords take the same view, the question of relief arises. At the hearing counsel were agreed, I think correctly, that the only form of relief contemplated by the statute (s.288(5) of the 1990 Act) is an order to quash the grant of planning permission. That is the order I would make. Lord Justice McFarlane[35]I agree. Lord Justice Christopher Clarke[36]I also agree.