Eid, R (on the application of) v First Secretary of State & Anor [2005] EWHC 3030 (Admin)

Case No CO/2219/2005

[2005] EWHC 3030 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Friday, 2nd December 2005

Strand

London WC2

B E F O R E:

MR JUSTICE JACKSON

Between

THE QUEEN ON THE APPLICATION OF MOHAMMED EIDClaimant

-v-

Between

FIRST SECRETARY OF STATEDefendant

WESTMINSTER CITY COUNCILDefendant

Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

MR CHRISTOPHER BOYLE (instructed by Fladgate Fielder) appeared for CLAIMANT

MR JOHN MOFFETT (instructed by the Treasury Solicitor) appeared for FIRST DEFENDANT

MR HEREWARD PHILLPOT (instructed by Westminster City Council) appeared for SECOND DEFENDANT

MR RICHARD HONEY appeared in lieu of MR HEREWARD PHILLPOT who was unavailable for JUDGMENT

J U D G M E N T

[1]MR JUSTICE JACKSON: This judgment is in seven parts, namely: Introduction; Part 1 The facts; Part 2 The present proceedings; Part 3 Can the error in the decision letter be corrected? Part 4 The first ground of appeal; Part 5 The second ground of appeal; Part 6 Conclusion. Part 7:

Part 1. Introduction

[2]This is an appeal under section 289 of the Town and Country Planning Act 1990 against the decision of a Planning Inspector. The claimant, Mr Mohammed Eid, is the owner of the two properties which are the subject of the appeal. The First Secretary of State (to whom I shall refer as "the Secretary of State") is the first defendant. The Westminster City Council (to whom I shall refer as "the Council") is the local planning authority and the second defendant in these proceedings. I shall refer to the Town and Country Planning Act 1990 as "the 1990 Act".

[3]Section 174 of the 1990 Act permits a property owner to appeal against an enforcement notice on a number of grounds.

(a) reads as follows:

"That in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged."

Section 177 of the 1990 Act provides:

"(1) On the determination of an appeal under section 174 the Secretary of State may -- (a) grant planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control, whether in relation to the whole or any part of those matters or in relation to the whole or any part of the land to which the notice relates ..."

Section 289 of the 1990 Act provides:

"(1) Where the Secretary of State gives a decision in proceedings on an appeal under Part VII against an enforcement notice the appellant or the local planning authority or any other person having an interest in the land to which the notice relates may, according as rules of court may provide, either appeal to the High Court against the decision on a point of law or require the Secretary of State to state and sign a case for the opinion of the High Court."

[4]The rules of court referred to in section 289 of the 1990 Act are contained in RSC Order 94, Rules 12 and 13 which form part of Schedule 1 to the Civil Procedure Rules. RSC Order 94 Rule 13(7) provides:

"Where the court is of opinion that the decision appealed against was erroneous in point of law, it shall not set aside or vary that decision but shall remit the matter to the Secretary of State with the opinion of the court for rehearing and determination by him."

It will be noted from this provision that in an appeal under section 289, the court does not have power to quash or set aside the impugned decision. If the appeal succeeds, the court remits that decision to the Secretary of State together with the court's opinion on the point of law which has arisen.

[5]The Town and Country Planning (Use Classes) Order 1987 defines a number of classes of use. These include the following: A1: Shops; A2: Financial and professional services; A3: Restaurants and cafes; B1: Business; The full definitions of those classes are somewhat longer but I need not read these out for present purposes. In this judgment when I refer to A1, A2 or A3, that is a reference to those uses as defined in the Town and Country Planning (Use Classes) Order 1987.

[6]I shall refer to the Planning and Compulsory Purchase Act 2004 as "the 2004 Act". Section 56 of the 2004 Act provides:

"(1) This section applies if the Secretary of State or an Inspector issues a decision document which contains a correctable error. (2) The Secretary of State or the Inspector (as the case may be) may correct the error -- (a) if he is requested to do so in writing by any person; (b) if he sends a statement in writing to the applicant which explains the error and states that he is considering making the correction; (3) But the Secretary of State must not correct the error unless -- (a) not later than the end of the relevant period he receives a request mentioned in subsection (2)(a) or sends a statement mentioned in subsection (2)(b); (b) he informs the local planning authority of that fact; and (c) he obtains the appropriate consent."

Section 59(5) of the 2004 Act provides:

"A correctable error is an error -- (a) which is contained in any part of the decision document which records the decision; but (b) which is not part of any reasons given for the decision."

[7]That is a sufficient outline of the statutory framework. It is now time to turn to the facts.

Part 2. The Facts

[8]Edgware Road in London, formerly part of Watling Street, has been a principal thoroughfare in this country for almost 2000 years. In the middle of the 20th century a Jewish community developed in this area. Soon afterwards, residents arrived from Arab countries. By the late 20th century Edgware Road had a settled community drawn from the Middle East generally. Many shops and restaurants served the needs of these residents.

[9]The two properties with which this court is concerned are numbers 65 and 67 Edgware Road. I shall refer to those two properties as "number 65" and "number 67". Number 65 and number 67 are on the left-hand side as one walks northwards up Edgware Road from Marble Arch. They form part of a parade of commercial properties. This parade runs from 45 Edgware Road (on the corner of Connaught Street and Edgware Road) up to 79 Edgware Road (on the corner of Kendal Street and Edgware Road).

[10]It can be seen from the bundle of planning documents that numbers 65 and 67 have had a variety of permitted uses since the introduction of planning control after the Second World War. These include restaurant use, retail shops, estate agents' office and bank premises.

[11]The position in 2002 was that the claimant was the owner of numbers 65 and 67 and he was operating a cafe on the ground floor of these two premises known as "Al-Dar Cafe". Unfortunately, this was not a permitted use of either property at that time. The lawful use of number 65 was class A2. Number 67 had no lawful or permitted use at all because of a previous period of unauthorised use.

[12]On 8th November 2002, the Council served an enforcement notice on the claimant. This notice required the claimant to cease using the ground floor and forecourts of numbers 65 and 67 as a cafe or restaurant. By a notice of appeal dated 17th December 2002, the claimant appealed to the Secretary of State against the enforcement notice pursuant to section 174 of the 1990 Act. Although the appeal was brought on a number of grounds, the only ground which is relevant for present purposes is ground (a); namely that planning permission ought to be granted for the use in question.

[13]The Secretary of State appointed an Inspector, Mr Steven Fox, to determine the appeal. Mr Fox visited the site on 18th June 2003. He convened an oral hearing ("the first inquiry") on 19th June, 27th August and 28th August 2003. By a written decision dated 8th September 2003, Mr Fox dismissed the claimant's appeal and upheld the enforcement notice subject to certain minor variations.

[14]The claimant appealed against the Inspector's decision pursuant to section 289 of the 1990 Act. His Honour Judge Rich QC, sitting as a Deputy High Court Judge in the Administrative Court, heard and allowed the claimant's appeal on 20th April 2004. The basis of Judge Rich's decision was that Mr Fox had misinterpreted the Unitary Development Plan which the Council had adopted in 1997. Judge Rich ordered that the Inspector's decision be remitted to the Secretary of State with the opinion of the court for rehearing and redetermination.

[15]Following the decision of this court, the Secretary of State appointed a different Inspector, Mr Roderick Evans, to hear and determine the claimant's appeal against the enforcement notice. Mr Evans convened an oral hearing ("the second inquiry") on 11th, 12th and 24th January 2005. Mr Evans also made three visits to the site during January 2005. Two of these visits were made during daytime and one of these visits was made at night.

[16]Between the time of the first inquiry and the second inquiry there was one significant change of circumstances. That related to the Council's development plan. At the time of the first enquiry, the relevant plan was the Unitary Development Plan adopted by the Council in 1997. Nevertheless, regard could be had to a new development plan which was emerging and which was passing through the statutory processes. By the time of the second inquiry, however, that new development plan had come to fruition, although it was a few days short of formal adoption. That new development plan is the City of Westminster's Replacement Unitary Development Plan 2011. This is generally referred to as "the RUDP" and I shall adopt that terminology. The RUDP was treated by both parties at the second inquiry and by the Inspector as being the adopted development plan and no complaint is, or could be, made about that approach.

[17]The RUDP is not a document which lends itself to pithy summary, nor is it light reading. I should, however, set out certain parts of the RUDP which were the subject of consideration at the second inquiry. Part 1 of the RUDP sets out general strategies. Policy Stra 10 provides:

"It is the City Council's aim: To enhance the vitality, viability and diversity of Westminster's shopping centres and maintain and increase the number and range of shops in the City."

Policy Stra 13 provides:

"It is the City Council's aim: (A) To maintain and improve the range of arts, culture and entertainment uses in Westminster. (B) To restrict further late-night entertainment uses in areas that already have an over-concentration."

[18]I should explain at this point that a cafe falls within the definition of entertainment. For the purposes of the RUDP, a cafe is characterised as being one form of entertainment. In the explanatory section which follows Policy Stra 13, there appears the following paragraph:

"(1.97) The effects of the night time economy on Westminster's residential communities are particularly pronounced as the City contains the largest concentration of entertainment and late-night premises in London and possibly the UK. The majority of these uses are inside the Central Activities Zone (CAZ) in Soho and Covent Garden. Significant numbers are also found on the Edgware Road and in Bayswater and Queensway/Westbourne Grove. As a result, these areas have become 'saturated' with entertainment uses and their character is being eroded as is the amenity of residents. As is the case with hotels . . . demonstrable harm can be caused. For these reasons these three areas have been identified as 'Stress Areas' and are shown on the Proposals Map. The policies that apply in these areas are set out in Chapter 8: Tourism, Arts, Culture and Entertainment."

[19]Chapter 1 of the RUDP deals with Westminster's Central Area.

(A) provides as follows:

"Central London activities will be permitted on the defined Central Activities Zone Frontages where: • appropriate to the character and function of the frontage, • such uses do not give rise to adverse effects on residential amenity in the locality."

It can be seen from the paragraphs which follow Policy Cent 2 that cafes fall within the ambit of "Central London Activities".

[20]Policy Cent 4 provides:

"Planning permission will not be granted for development which results in the loss of uses supporting Central London Activities or the loss of local service uses, within the Central Activities Zone or on the CAZ frontages, where such uses contribute to the character and function of these areas."

It can be seen from the paragraphs which follow Policy Cent 4 that cafes fall within the definition of "Central London Supporting Uses".

[21]Chapter 7 of the RUDP deals with shopping policies. Policy SS 1 provides:

"A1 uses will generally be protected."

The reasons for Policy SS 1 include the following passage:

"(7.16) Shops are the main reason why people visit shopping areas. Shops in Westminster serve residents, workers and visitors, and businesses and add vitality to the street scene. It is important, therefore, to maintain the shopping function and character of frontages to ensure the continued vitality and viability of Westminster's shopping centres. The amount of A1 floorspace in the City has declined with new shopping patterns and the introduction of service uses into shopping streets. Shops throughout the City are coming under increasing pressure for change of use to A3 uses (restaurants, bars and cafes) and to service uses such as betting offices and estate agents. Many convenience shops in Westminster have changed to specialist retailers or A1 catering establishments. The lack of local shopping facilities inconveniences residents, forces people to travel further for their shopping needs, and can undermine local communities. The City Council, therefore, wishes to protect A1 uses and wants to ensure that service uses do not dominate centres or individual parades, reducing the attractiveness to shoppers and retailers."

In this passage the phrase "service uses" includes cafes.

[22]Policy SS 2 provides:

"The loss of non-A1 retail uses to uses which do not serve visiting members of the public will generally be resisted."

Paragraph 7.22 lists the following as non-A1 retail uses:

"(a) Professional and financial services (mainly A2 uses): • Bank/building society • Job centre • Employment agency • Housing office • Estate agent • Solicitors' office • Betting office • Advice centre • Internet cafe (b) Premises serving food and drink (A3 uses): • Restaurant/cafe • Public house/bar/cafe-bar • Hot food take-away (c) Sui generis uses: • Launderette ... • Mini cab office • Car showroom • Builders' merchants/timber yards/plant hire shops (though these can be A1)."

[23]Policy SS 5 provides:

"(A) A1 uses at ground, basement or first floor level in CAZ and CAZ Frontages will be protected. (B) Planning permission for the introduction of a non-A1 town centre use at basement, ground and first floor level will only be granted where the proposal would not be detrimental to the character and function of an area or to the vitality or viability of a shopping frontage or locality. (C) Proposals for non-A1 uses must not: (1) Lead to, or add to, a concentration of three or more consecutive A1 uses (2) Cause or intensify an existing over-concentration of A3 and entertainment uses in a street or area."

The explanatory paragraphs which follow Policy SS 5 include the following:

"(7.49) Under part (B) when assessing whether the introduction of a non-A1 town centre use would have a detrimental effect on the vitality and viability of an area, or on an area's character and function, the following criteria will be taken into account: (a) if the number and range of shops, particularly local convenience shops, is reduced (b) if a concentration of specialist shops is reduced (c) if the viability of the remaining shops in a frontage or street is reduced (d) if a dead frontage is created (e) if the proposal would change, or add to a cumulative change, in the character and function of a street, from mixed to predominantly A3 and entertainment uses at ground floor (f) if unacceptably high levels of late-night activity are likely to result or already unacceptable levels of late-night activity exist. (7.50) Under part (C): (a) The number of consecutive non-A1 uses will be calculated by counting the number of non-A1 uses occupying shop-type premises (not units) running consecutively at ground floor level. This will include those that continue around a corner or past an alleyway but will not include those separated by a road. If the proposal would result in three or more consecutive non-A1 uses, it will not be permitted. (b) An over-concentration of A3 and entertainment uses occurs when the numbers and size of these types of uses begin to dominate a street or area and the consequential effects of their operations including the numbers of people attracted begins to have a detrimental effect on the local environment and residential amenity. If such a concentration already exists, additional A3 and entertainment uses will not be permitted as this would just exacerbate the existing situation."

[24]There then follows a passage setting out the reasons for this policy. This passage includes the following paragraph:

"(7.57) The Primary Shopping Frontages in the West End are predominantly A1 shop use, but beyond these streets the land use is more mixed, containing a greater variety of uses, especially banks, pubs, bars and restaurants. The A3 uses, together with theatres, cinemas and other entertainment venues, provide central London with its nightlife. These uses make a major contribution to London's world class city status, as well as providing rest and refreshment for workers and shoppers. However, in the last ten years, the number of A3 uses, and their effects, has reached such a level that in some areas an imbalance has arisen. Policy SS 5, therefore, aims to limit further loss of A1 uses and manage the introduction of non-A1 uses for the following reasons . . . (c) to maintain the attraction of the West End as a shopping destination. Reduction in the concentration of shops in shopping areas in the West End make areas less attractive to shoppers and threaten the viability of individual shops and shopping streets. An overbalance of A3 uses can make areas less attractive to particular groups of shoppers such as families and old people. (d) Increasing concentrations of cafes, bars, restaurants and hot food take-aways lead to a deterioration in the quality of the environment in terms of litter, waste disposal, smells, noise and pavement soiling. Increasing numbers of such premises increase the problems for the City Council in its role of managing environmental quality. Deterioration in environmental quality reduces the attraction of an area as a shopping destination particularly when it is contrasted with the environment of purpose built shopping centres which are direct competitors to the West End . . . . (7.64) The City Council wishes to prevent the intensification and concentration of non-retail uses by limiting the number of non-A1 uses to two consecutive premises. Beyond this, ie, three consecutive premises, the concentration will be deemed to be 'harmful'. Concentrations of three or more A3, A2 or other non-retail uses occupying shop-type premises will not be permitted because: • they can undermine the shopping function • they can have a detrimental effect on the character function and interest of the street and, • they can cause environmental and amenity problems in localised areas."

[25]Chapter 8 of the RUDP deals with tourism, arts, culture and entertainment. This chapter acknowledges both the benefits of and the drawbacks of places of entertainment. As previously mentioned, places of entertainment include cafes. Paragraphs 8.74 to 8.76 discuss the need to find a balance between the competing interests. Paragraph 8.79 states that the aim of policies Tace 8 to 10 is as follows:

"To control the location, size and activities of entertainment uses in order to safeguard residential amenity, local environmental quality and the established character and function of the various parts of the city, while acknowledging that they provide services to people living in, working in and visiting the City and contribute to its role as an entertainment centre of national and international importance."

[26]Table 8.1 states that Policy Tace 8 will apply to cafes with a gross floorspace of less than 150 square metres. The premises at the ground floor of numbers 65 to 67 fall within that category. Policy Tace 8 provides:

"(A) As indicated in Table 8.1, Policy Tace 8 applies to proposals for restaurant and cafe uses of under 150 sq m of gross floorspace anywhere in the City; and to proposals for restaurant and cafe uses of between 150 and 500 sq m inside the Central Activities Zone outside the Stress Areas. (B) Permission will generally be granted for proposals where Policy Tace 8 is identified as relevant in Table 8.1, where the City Council is satisfied that the proposed development has: (1) no adverse effect [nor, taking into account the number and distribution of entertainment uses in the vicinity, any cumulatively adverse effect] upon residential amenity or local environment quality as a result of: (a) noise (b) vibration (c) smells (d) increased late night activity, or (e) increased parking and traffic; and (2) no adverse effect on the character or function of its area."

Explanatory paragraphs follow Policy Tace 8. These include paragraph 8.89 which provides as follows: "Cumulative adverse effects In some parts of the City, particularly in the Stress Areas, there are significant numbers of entertainment premises close together. In such circumstances the City Council will consider whether any additional entertainment proposal, when taken alongside others nearby, will adversely affect residential amenity, local environmental quality, or the character or function of the surrounding area. The Mayor of London's Cultural Strategy, whilst supporting the diversification of the evening economy and recognising that entertainment can encourage and support a whole range of creative industries and skills, does recognise the demands the evening economy can make on public services and effects on local residents.

[27]Stress Areas are discussed in paragraphs 8.92 to 8.94 these paragraphs state:

"(8.92) These Stress Areas have been designated in the City. These are in the West End, along part of Edgware Road, and in part of Queensway and Bayswater. Maps 8.2, 8.3 and 8.4, which show the extent of these Stress Areas, are included at the end of this chapter. (8.93) Stress Areas are areas where the City Council considers that the numbers of restaurants, cafes, take-aways, public houses, bars and other entertainment uses have reached a level of saturation. The City Council considers that such uses are concentrated in these areas where harm is being caused because of loss to residential amenity, impacts on other commercial uses, adverse effects on the local environment and inappropriate change to their character and function. (8.94) In the Stress Areas, additional entertainment premises, some extensions to existing premises, and extensions of opening hours of larger premises until late in the night will be considered, in most instances, to add to the problems in those areas. Only proposals for small uses, those with less than 150 sq m of gross floorspace, will generally be permitted and they will be expected to meet all the criteria set out in Tace 8(B) and (C). The City Council recognises that restaurants and cafes generally have adverse amenity effects which are less than other uses. Appropriate and reasonable conditions will be imposed to limit adverse effects, in order to safeguard residential amenity and local environmental quality and to protect the character or function of these areas."

In the section setting out the reasons for policies Tace 8 to Tace 10, there appear the following paragraphs:

"(8.102) The growth in night time activity and its associated environmental 'stress' is most evident in the West End in parts of the Edgware Road and in parts of Queensway and Bayswater. In these areas there are high levels of night time noise and vibration from premises, noise from pedestrians and vehicles, degradation of the local environment from refuse and litter and from street fouling, and at times significant levels of street disorder after dark. (8.103) The City Council considers that the West End, Edgware Road and Queensway/Bayswater areas have become saturated with entertainment uses and their environment and character is being adversely affected. In order to prevent further deterioration, the City Council has designated a 'West End Stress Area' (see Map 8.2), an 'Edgware Road Stress Area' (see Map 8.3) and the 'Queensway/Bayswater Stress Area' (see Map 8.4). In these areas the City Council will seek to carefully control the growth of entertainment uses, particularly larger uses which attract large numbers of people, as these have potential to contribute most to the adverse effects referred to in paragraph 8.97 above."

[28]Although other parts of the RUDP were referred to during the second inquiry, and indeed in argument at this hearing, no further recitation of the RUDP is required for present purposes.

[29]At the oral hearing before Mr Evans, four witnesses were called. Mr Sugiura and Mr Raven were called on behalf of the claimant. Mr Sugiura is a Chartered Engineer and Mr Raven is a Chartered Town Planner and Urban Designer. On behalf of the local planning authority, the Council, there were called Mr Simmons, an Assistant Area Planning Officer and Mr Bradshaw, a Senior Practitioner (Noise) in the Department of Community Protection.

[30]The Inspector, Mr Evans, had before him the evidence which had been before the previous Inspector. He also had extremely detailed expert reports from both parties, together with voluminous appendices. It appears from the material before me (which includes some of counsel's written submissions to the Inspector) that the issues were explored very thoroughly and that no stone was left unturned. The Inspector, Mr Evans, took some six weeks to consider the evidence and arguments. By a written decision dated 11th March 2005 ("the decision letter"), the Inspector dismissed the claimant's appeal and upheld the enforcement notice subject to the same minor amendments as the previous Inspector had made.

[31]In paragraph 12 of the decision letter, the Inspector identified the two main issues in the appeal. These were: 1. The impact the change of use has on the character and function of the Edgware Road CAZF. 2. Whether if permission were granted for the use to operate beyond 2300 hours, it would have an unacceptable effect on neighbouring residents' living conditions by reason of noise and disturbance.

[32]The decision letter included the following passages which are relevant to the issues which I have to decide:

"(16) The previous Inspector did not have the 2002 health check before him. Consistent with its conclusions, however, he described 'the essential character' of Edgware Road as that 'of a busy, vibrant commercial area with a wide range of shopping, service and entertainment uses'. He found that 'towards its southern end it has a distinctive character which derives from the heavy concentration of shops, services cafes, restaurants and other entertainment premises catering for the Middle Eastern community'. In functional terms, he regarded it as 'significant in the contribution it makes to the attractions of central London, but because it has residential premises in the immediate vicinity it also serves as an important centre for the resident local population'. No challenge was made to this part of the Inspector's decision and the Inspector's planning witness agreed in-chief with the broad accuracy of these functional assessments. I likewise find no reason to disagree with them. (17) While having a wider purpose than Policy SS 5, the designation as a Stress Area and associated criteria under policy Tace 8 now carry considerably greater weight than they could have done before the RUDP inquiry, however much the appellant's planning witness may continue to disagree with the designation. Account was taken of it in an appeal decided in April 2003 in relation to premises at 332 Old Marylebone Road to the north. The Inspector there commented that he had 'gained the impression that the number of A3 uses in the area is unusually high and out of proportion to the number of shops'. The previous Inspector in this case also found that "there is clearly a strong representation of A3 uses, particularly at (Edgware Road's) southern end, in terms of both numbers and the extent of frontages occupied'. (18) Even without applying the detailed RUDP criteria, therefore, there have already been a number of assessments, and most importantly that of the RUDP itself, concluding in effect that an imbalance of uses already exists in the area which is harmful to it. Both parties presented evidence of the present balance of uses in the CAZF, with some measure of agreement being reached upon it at the inquiry. The figures exclude 8 vacant premises, and number 69, giving an agreed total of 163 active uses. The principal area of dispute is over the classification of 8 outlets, 7 of them as either A1 or A3 and one as either A2 or A3. The Council thus consider there to be 93 A1 uses, or 57%, with the appellant putting these at 100 or 61% (or 54% and 58% respectively if the other 9 premises are included in the total). Their figures for A3 uses are 40 (23%) and 30 (19%), or 24% and 20% as before. (19) Having spent some time at other inquiries considering whether particular operations fell within Class A1, A3 or in mixed use in neither Class, I can say with some certainty that it is not possible to reach a definitive view of the 'disputed' uses merely from external observation. It seems to me entirely reasonable, given the numbers and proportions involved, to 'split the difference' between the parties, giving totals of around 59% active A1 uses and 21% A3 uses. The last known use of at least 3 of the 8 vacant premises was for A3 purposes however with 2 unknown, so that potentially, and still ignoring No 69, the figure for A3 uses could rise as high as 45, or 26%, without the need, so far as I am aware, for any further planning permissions. The point was not made at the inquiry but is self evident from the agreed figures. Given that No 69 is at least partly used in connection with an A3 use, that too must be regarded for this purpose, whatever it is, it is not in A1 use. (20) Changes in the designated area's boundary since the preceding 'health check' in 1997 were said to have made data comparisons impossible in 2002. Three A1 units were then found to have been lost to A2 uses however, with an increase of A3 units within the new boundaries. Further changes have occurred since the 2002 survey, not least the conversion of three nearby A2 units to A1 use in this parade. Because of differences in the totals and methodologies however, in addition to any inherent statistical variation or inaccuracy, I find neither party's evidence convincing in relation to trends in the figures. Even so, and even if unlikely to reach them in practice, the above potential numbers and percentages of A3 uses go significantly beyond either party's evidence in that respect -- (21) Similar observations can be made about the interpretation and application of paragraph (C)(1) of Policy SS 5 as about paragraph (B). Even on a strict interpretation, it is indisputable that the deemed application amounts to 'a proposal' for a non-A1 use. Only part of the appeal site has a lawful use capable of resumption. Given their numbers and the relatively low proportion of vacant units, there is clearly a demand for such premises in the CAZF. If the use of No 65 were to revert to A2, it would leave a run of 3 non-A1 uses with a significantly shorter continuous frontage and any proposal for No 67 to be treated on its merits. The unauthorised use of Nos 65/67, in contrast, results in a continuous run of 5 non-A1 uses occupying 7 shop units at ground floor level from No 59 to No 71, not to mention the doorway to the basement restaurant in the middle of them. (22) Both numerically and in the length of continuous non-A1 frontage, the present use therefore adds significantly to an existing concentration of three lawful consecutive non-A1 uses, even if currently, one is in unauthorised A3 use and another vacant. This is both contrary to the specific terms of paragraph (C)(1) and as advised at paragraph 7.64 of the supporting text, is deemed to be harmful. The resulting off-putting visual impact for shoppers of such a concentration of consecutive non-A1 uses is further exacerbated within the parade by the other non-A1 uses at Nos 77/79 and 51/53 and by the fact that one of the intervening A1 uses is an ice-cream parlour, albeit not one of the 8 'disputed' uses above. The recent change at Nos 45-49, while certainly contributing to diversity, is to my mind more than offset in this respect by the extensive A1 premises on the opposite corner. It has also to be seen in the context of a parade now containing 5 A1 uses as against 6 active non-A1 uses and one vacant A3 use, in marked contrast even to the 'broad brush' 60%/40% division asserted for the Appellant. (23) It would be going too far to say that the development by itself poses a present and significant threat to the vitality and viability of the CAZF as a whole. Even though the cafe is open during the day, it is likely to have such an effect on other uses in the immediate locality however, simply by being off-putting to shoppers. That is reflected in the July 2002 pedestrian flow counts, the lowest in the CAZF being recorded on this parade, outside the A1 use at No 57, with flows on the opposite eastern side of the road being noted as 'considerably higher' than on this side. The parade opposite may be predominantly in A1 use, but there are further sporadic A3 uses, and no less than 5 of the 8 'disputed' uses in the nearest parades to north and south. It is implicit in Policy SS 5 that the distribution of non-A1 uses has to be taken into account as well as the proportions across the centre as a whole. Such a concentration of non-A1 uses in this parade can only be detrimental to the objective of maintaining a balance of town centre uses in the area and thus to its character and function as a diverse, mixed-use shopping centre. (24) Further, that balance can be easily lost through incremental changes of this kind, potentially resulting in 'a cumulative change in the character and function of the street from mixed to predominantly A3 and entertainment uses at ground floor' (RUDP para 7.49(f)). If allowed to continue, the current economic health of the centre as a whole could in turn also become threatened. However unlikely that may seem in this location, it is no criticism of those with commercial interests to say that it is the maintenance of the policy position in the face of pressures for change driven predominantly by individual financial considerations which ensures the balance of uses is maintained. Certainly, a particular use cannot be imposed on these or any other premises, nor can it be said that some other non-A1 use of them would necessarily be unacceptable. As paragraph 1.80 of the RUDP advises in relation to Policy Stra 10 however, because there are many different demands for ground-floor shop premises, a large stock of them needs to be retained to ensure that residents' needs are met. (25) Paragraph (C)(2) of Policy SS 5 is concerned with over-concentrations specifically of A3 and entertainment uses in a street or area, but from paragraph 7.50(b), more in relation to their effect on the local environment and residential amenity than their impact on an area's character or function as a shopping centre. The sub-policy may thus be seen as more relevant to the second issue in this appeal. The two aspects are not wholly independent of each other however, as discussed at paragraph 7.57. This refers to the number of A3 uses having reached a level in some areas such that an imbalance has arisen and at 7.57(d), points out that deterioration in environmental quality arising from increasing concentrations of such uses reduces the attraction of an area as a shopping destination. That is also reflected in the Stress Area designation and only serves to add weight to the objections described above. (26) For these reasons, I conclude that the change of use is harmful to the character and function of the CAZF and thus falls outside the provisions in particular of RUDP Policies SS 5, Cent 2 and in part Tace 8. To allow it would thus also be to undermine the strategic objectives of Policies Stra 10 and Stra 19 in particular. In reaching those conclusions, I have taken full account of the recognition given to the value of Class A3 uses within the CAZF by these and other policies and of their usefulness to local residents and visitors, whatever their origins. That does not however override the objective of securing or maintaining an 'appropriate balance' between them and other potentially competing town centre uses. In particular, the change to A3 does not involve the loss of a non-A1 retail use, so that it does not fall to be considered against Policy SS 2, while still falling outside the other policy provisions."

[33]Let me now revert to the two main issues which the Inspector identified as arising in the appeal. In relation to the first main issue, the Inspector found that the use of the premises as a cafe was harmful to the character and function of the CAZF and contrary to the policies of the RUDP. He decided that this amounted to "an overriding reason for dismissal of the appeal". Although the Inspector decided that his conclusion in relation to the first issue on its own merited a dismissal of the appeal, the Inspector went on to consider the second issue in any event. The Inspector found that if the premises were to be open after 11 pm, that could lead on occasion to late night disturbance and/or disruption of sleep for people living above the premises. Accordingly, the Inspector decided that if planning permission had been granted for change of use, he would have imposed conditions requiring the premises to close and forecourt tables to be removed by 11 pm: see paragraphs 27 to 30 of the decision letter.

[34]The claimant was aggrieved by the Inspector's decision. Accordingly, he commenced the present proceedings.

Part 3. The Present Proceedings

[35]By an appellant's notice dated 15th June 2005, the claimant appealed against the Inspector's decision pursuant to section 289 of the 1990 Act. The appeal was based upon two grounds, namely:(1) The Inspector erred in law in holding that the change of use was harmful to the character and function of the CAZF;

(2) The Inspector erred in law in holding that a condition of closing at 11 pm should be imposed on the grounds of noise.

[36]In support of his appeal, the claimant lodged a witness statement made by Mr Andrew Raven who had been one of the claimant's expert witnesses at the inquiry before Mr Evans. Mr Raven, in his witness statement, expands on the grounds of appeal. He also produces as an exhibit some 800 pages of the written evidence which had been before the Inspector.

[37]The defendants in the present proceedings are(1) the Secretary of State, and

(2) the Council. The Secretary of State resists the appeal, essentially on the grounds that the Inspector made no error of law and reached a decision which was open to him. The evidence lodged by the Secretary of State comprises one short witness statement made by Mr Evans, the Inspector. In that statement, Mr Evans states that paragraph 22 of the decision letter contains a typographical error. In the penultimate sentence of paragraph 22 the phrase "the extensive A1 premises" should read "the extensive A3 premises".

[38]The Council as second defendant also resists the appeal. The Council has filed evidence comprising two witness statements made by Mr Simmons, the Planning Officer who gave evidence on behalf of the Council at the second inquiry. Mr Simmons makes comments on the correct interpretation of the RUDP. He states that the principal reason why the Council wishes to be represented at this appeal is in order to assist the court in arriving at a correct interpretation of the RUDP. Mr Simmons is also critical of the reasoning in Judge Rich's decision in this regard. However, since Judge Rich's decision was not appealed, I do not propose to heed this criticism.

[39]The final piece of evidence lodged in connection with this appeal is a witness statement from Mr Raven responding to the defendants' witness statements. The hearing of the claimant's appeal commenced the day before yesterday. The argument has occupied the last two days. Mr Christopher Boyle represents the claimant in this court, as he did at the second inquiry. Mr Hereward Phillpot represents the Council in this court, as he did at the second inquiry. Mr John Moffett represents the Secretary of State.

[40]I shall deal with the two grounds of appeal and the subordinate issues following the sequence of counsel's submissions. Before doing so, however, I must address the preliminary question as to whether the error in the decision letter can be corrected. Part 4. Can the error in the decision letter be corrected?

Part 4. Can the error in the decision letter

[41]The error which the Secretary of State seeks to correct has been identified in Part 3 above. Mr Moffett for the Secretary of State submits that what occurred was a simple typographical error and the court should allow this error to be corrected. Such a correction falls within the range of permissible corrections set out by the Court of Appeal in R v Westminster City Council ex parte Ermakov [1996] 2 AER 302. Mr Moffett does not rely upon section 56 of the 2004 Act which he concedes is inapplicable to the circumstances of this case.

[42]Mr Boyle for the claimant submits that the proposed correction completely changes the sense of the passage in question. Therefore it falls outside the ambit of Ermakov and no correction should be permitted. Section 56 of the 2004 Act is narrow in its scope and does not apply to the facts of this case. Indeed, the restrictive terms of section 56 recognise the narrowness of the Ermakov principle. Mr Boyle submits that the claimant is entitled to intelligible reasons for the decision given and the claimant is entitled to rely upon the reasons originally stated, rather than some later revision of those reasons.

[43]In confronting these rival submissions it is first necessary to analyse the Court of Appeal's decision in Ermakov. In that case the applicant, who claimed that he had moved from the UK to Greece as a result of being harassed in Greece, challenged the decision of a Council Homelessness Officer that he had become homeless intentionally. In his decision letter the Officer stated his reasons to be that the Council was not satisfied that the applicant had experienced harassment in Greece and that it was therefore reasonable that he and his family should continue to live there. The applicant applied for judicial review of the decision, whereupon the Officer swore an affidavit stating that the true reasons for the decision were not those expressed in the decision letter but rather that he was satisfied that, notwithstanding the matters disclosed in the applicant's statement, it would have been reasonable for him and his family to continue to occupy the accommodation he rented in Greece. The deputy judge allowed this evidence to be adduced and dismissed the application. On appeal, the Court of Appeal held that the evidence should not have been admitted and quashed the decision of the housing authority.

[44]In relation to the general approach, Hutchison LJ (with whom Thorpe LJ and Nourse LJ agreed) said this at page 315:

"The court can and, in appropriate cases, should admit evidence to elucidate or, exceptionally, correct or add to the reasons; but should, consistently with Steyn LJ's observations in Ex p Graham, be very cautious about doing so. I have in mind cases where, for example, an error has been made in transcription or expression, or a word or words inadvertently omitted, or where the language used may be in some way lacking in clarity. These examples are not intended to be exhaustive, but rather to reflect my view that the function of such evidence should generally be elucidation not fundamental alteration, confirmation not contradiction."

That case concerned a decision by a housing authority. In my view, the approach to planning decisions should be no less restrictive. Evidence may be admitted to correct a typographical error or a clerical error of modest proportions, provided that such correction does not cause prejudice. However, a planning officer should not be permitted to make any substantial change to his decision by later evidence.

[45]Turning to the present case, I propose to admit Mr Evans' witness statement and to read paragraph 22 of the decision letter in the manner it was intended to be written. I reach this decision for five reasons:(1) It is obvious on the face of the decision letter that something has gone wrong in paragraph 22. The penultimate sentence cannot be intended to mean what it says. The sentence only makes sense if "A1" Is changed to "A3".

(2) I do not believe that the claimant has been prejudiced or that anyone has been misled by the typographical error.

(3) This correction falls within the principles stated by the Court of Appeal in Ermakov.

(4) It is human nature to make mistakes of the kind that occurred in paragraph 22. The correction of such mistakes must be permitted both as a matter of policy and as a matter of expediency.

(5) Whilst it is true that this case falls outside the scope of section 56 of the 2004 Act, nevertheless that provision is not comprehensive. Section 56 does not exclude the right of an Inspector to correct an obvious typographical or clerical error in his decision where such correction does not cause prejudice.

[46]For all of the above reasons, my answer to the question posed in Part 4 of this judgment is "Yes".

[47]Having dealt with that preliminary matter, I must now turn to the grounds of appeal.

Part 5. The First Ground of Appeal

[48]The claimant contends that the Inspector erred in law in holding that the change of use was harmful to the character and function of the CAZF. This finding is set out in the first sentence of paragraph 26 of the decision letter. It will be recalled that CAZF is "Central Activities Zone Frontage". There is no dispute that numbers 65 and 67 fall within the CAZF. There is also no dispute that numbers 65 and 67 fall within that part of Edgware Road which has been designated a Stress Area.

[49]Mr Boyle identifies five reasons upon which the Inspector's crucial finding (set out at the start of paragraph 26) was based. These five reasons are as follows: Reason 1: The reasoning in paragraph 16, paragraph 17 and the first sentence of paragraph 18 leading to the conclusion that there was 'an imbalance of uses'. Reason 2: The reasoning in paragraphs 21 and 22 leading to the conclusion that the proposal adds to a concentration of non-A1 uses on this frontage. Reason 3: The assertion in paragraph 23 that the proposed use of numbers 65 and 67 was off-putting to shoppers. Reason 4: The Inspector's assessment of cumulative impact in paragraph 24. Reason 5: The deterioration in environmental quality identified in paragraph 25.

[50]Mr Boyle submits that the Inspector erred in law in reaching the conclusions there set out. Each of those five reasons was influential in the final decision. Therefore, if the claimant establishes that any one of those five reasons is flawed, then the whole of the Inspector's decision must be remitted. This is because the Inspector has taken into account at least one immaterial consideration (and Mr Boyle would say five immaterial considerations) in reaching his final decision.

[51]Having outlined the reasons which are under attack, I must now focus upon each one individually. Reason 1

[52]Mr Boyle submits that Reason 1 is itself the product of three sub-reasons, each one of which is flawed. The three sub-reasons are as follows:(1) The Inspector relied upon the decision of Mr Fox (the previous Inspector) despite the fact that Mr Fox's decision had been quashed.

(2) The Inspector relied upon the decision in respect of 332 Old Marylebone Road, despite the fact that (a) the proposal for Old Marylebone Road involved the loss of an existing A1 unit, and (b) that decision predated Tace 8.

(3) The inspector placed inappropriate reliance upon the designation of Edgware Road as a Stress Area.

[53]I do not accept Mr Boyle's criticisms of the three sub-reasons. So far as the first sub-reason is concerned, Mr Fox's decision was not quashed, it was remitted to the Secretary of State with the opinion of the High Court. Mr Fox's decision is of no effect in so far as it conflicts with the reasoning of Judge Rich. This reasoning relates in particular to Mr Fox's interpretation of the old UDP (adopted in 1997 and now superseded). However, there are many parts of Mr Fox's decision which are in no way tainted or affected by Judge Rich's judgment. In particular, the findings of fact made by Mr Fox in paragraph 13 of his decision are in no way affected by the judgment of the High Court. These findings are recited by Mr Evans in paragraph 16 of his own decision and Mr Evans records that no challenge was made to such findings. Mr Evans, who had himself visited the site and heard extensive evidence about it, came to the same conclusions as Mr Fox about these matters and he was entitled to do so.

[54]Let me now revert to Mr Fox's decision. In paragraph 14 Mr Fox said this:

"From my observations and the evidence provided by both parties there is clearly a strong representation of A3 uses on Edgware Road, particularly at its southern end, in terms of both numbers and the extent of frontages occupied. Bearing in mind not only the present character of the area but also its role in serving the day-to-day needs of residents I consider it is important that there is an appropriate balance between retail and non-retail uses. A fundamental aspect of this balance is the avoidance of an over-concentration of uses that detract from the interest of the shopping street frontage by creating dead sections during the daytime and thereby eroding the vitality of the area. My view is that the A3 use of the appeal premises has resulted in an unacceptable concentration of non-retail uses, to the detriment of the function and character of its immediate surroundings and Edgware Road generally. As far as the block between Connaught Street and Kendal Street is concerned, whether assessed in terms of the number of properties, units, uses or frontages there is a disproportionate representation of non-retail uses."

This passage comprises findings of fact which are unaffected by the decision of Judge Rich. The crucial part of this passage is quoted with approval by Mr Evans in the last part of paragraph 17 of his decision letter. Again, in my judgment, Mr Evans was quite entitled to adopt that finding of fact and that subjective assessment which had been made by his predecessor.

[55]In the course of argument, Mr Moffett for the Secretary of State formulated the following proposition of law: The second Inspector is entitled to have regard to the first Inspector's decision save in so far as the earlier decision has been disapproved by the High Court. Mr Boyle for the claimant very fairly accepted that that proposition is correct. For my part, I agree with both counsel and I hold that that is a correct statement of law. This is consistent with the judgment of Kennedy J in Newbury District Council v Secretary of State for the Environment

(1988) 55 P&CR 100

. Applying that proposition of law, I hold that Mr Evans made legitimate use of Mr Fox's decision. Accordingly, the first sub-reason is rejected.

[56]Mr Boyle's attack upon the second sub-reason is also ill-founded. The distinctions between 332 Old Marylebone Road and numbers 65 and 67 Edgware Road are irrelevant for present purposes. What Mr Evans was relying upon was a general finding of fact made by the Marylebone Road Inspector with which Mr Evans agreed.

[57]Let me now turn to the third sub-reason. Mr Boyle submits that the designation of Edgware Road as a Stress Area has the effect of bringing numbers 65 and 67 within the ambit of Tace 8. Thereafter, the effect of the designation is spent. It cannot be invoked as an adverse factor pointing against the proposal when the Inspector comes to exercise his discretion under Tace 8. This proposition is reinforced by the fact that Tace 8 generally favours the grant of planning permission for cafes such as numbers 65 and 67.

[58]In relation to this issue, I accept the submissions of Mr Phillpot on behalf of the Council. It is necessary to look at the RUDP as a whole and not to latch on to individual passages in isolation. In this regard, Mr Phillpot points out that two themes run through the RUDP. One is a need for balance, another is the need to maintain a sufficient number of shops and to prevent service uses from dominating parades. The designation of Stress Areas is clearly one means of achieving this objective in areas where the balance has been imperilled. In my judgment, the following passages in the RUDP indicate that the Inspector was fully entitled to take into account the designation of Edgware Road as a Stress Area in the manner that he did. Paragraph 1.97, paragraph 7.16, paragraph 8.89, paragraph 8.93 and paragraphs 8.102 to 8.103.

[59]Let me now draw the threads together. I can detect no flaw in any of the three sub-reasons. The Inspector did not err in law in arriving at the conclusion which counsel have designated Reason 1. Reason 2

[60]Mr Boyle submits that the proposal for numbers 65 and 67 will not give rise to a breach of Policy SS 5 (C)(1) in the manner suggested by the Inspector. On the contrary, the position under Policy SS 5 (C)(1) will be improved by granting the planning permission which the claimant seeks.

[61]This issue turns upon how one characterises the status quo which existed before the Al-Dar Cafe opened (and to which the Council wishes to revert). It will be recalled that number 67 had a nil use at the time of the enforcement notice. Mr Boyle submits that a nil use is one form of "non-A1 use" for the purposes of Policy SS 5. Mr Phillpot submits the opposite. He submits that "non-A1 use" means some specific use which is not A1.

[62]On this issue I reject the submission of Mr Boyle and I accept the submission of Mr Phillpot. The phrase "non-A1 use" must mean some positive use which is other than A1; in other words, a use falling within classes A2, A3 or B or C or D. It cannot and does not mean no use at all. If I am wrong in this interpretation of Policy SS 5, then the position must be that the phrase "non-A1 use" in Policy SS 5 has two possible interpretations: namely, that favoured by Mr Boyle and that favoured by Mr Phillpot. If that is the correct analysis, then it was for the Inspector to choose between the two interpretations and the Inspector in this case accepted the interpretation for which Mr Phillpot now contends. This court will not interfere with that choice by the Inspector unless the Inspector's interpretation was perverse or the Inspector gave the phrase a meaning which it could not bear: see R v Derbyshire County Council ex parte Woods [1997] JPL 958 at page 967. In my judgment, it cannot possibly be said that the Inspector in this case ascribed to the phrase "non-A1 use" in Policy SS 5 a meaning which was either perverse or which the phrase could not bear.

[63]The second part of the claimant's case in relation to Reason 2 is based upon the Inspector's inappropriate reference to "extensive A1 premises" in the penultimate sentence of paragraph 22 of the decision letter. For the reasons set out in Part 4 above, I have already held that this sentence must be read in the manner that was obviously intended. This conclusion puts an end to the claimant's second line of argument.

[64]The claimant does, however, have one further fall back position in relation to paragraph 22. If the penultimate sentence is read in the manner intended, then(a) it is not clear which is "the opposite corner" referred to, and

(b) this is a new point which the claimant did not have the opportunity to deal with: see Mr Raven's second witness statement prepared for the purposes of this appeal. On the first aspect, I agree with Mr Raven's second witness statement at paragraph 12. There can be little doubt that the Inspector was referring to the corner on the opposite side of Connaught Street. On the second aspect, I do not think that this was a point which should have been specifically raised by the Inspector. As Mr Moffett has submitted, the general balance of uses in the area was clearly in play at the hearing. There was no need for the Inspector to put the minutiae of his proposed reasoning to counsel as the hearing progressed.

[65]If I may now draw the threads together, I reject the claimant's attack upon Reason 2. Reason 3

[66]Mr Boyle submits that Reason 3 is a finding for which there was no, or no sufficient, evidential basis. Cafes cannot rationally, or on the evidence, be said to be off-putting to shoppers.

[67]I do not accept this submission. The finding in paragraph 23 that a cafe at numbers 65 and 67 is off-putting to shoppers clearly derives from the third sentence of paragraph 22. The findings in paragraph 22 are clearly based upon the Inspector's site visits (as well as the evidence) and those findings were open to him. Those findings are consistent with paragraph 7.57(c) of the RUDP.

[68]Mr Boyle's next complaint is that the Inspector's deduction from the July 2002 pedestrian flow counts(a) was not raised during the hearing, and

(b) is wrong. As to the first point, the pedestrian flow counts of July 2002 were part of the evidence and the Inspector drew a perfectly reasonable conclusion from them. As to the second point, the pedestrian flow counts of May 1997 (upon which Mr Boyle now relies) do not undermine the Inspector's inference as has been suggested. The crucial figure to look at is the index rather than the actual number of pedestrians. It can be seen from a comparison of the pedestrian flow counts in 1997 and 2002 that in the vicinity of numbers 65 and 67, the index has dropped materially since the Al-Dar Cafe opened.

[69]In the result, therefore, I hold that the Inspector was entitled to come to the conclusions set out in Reason 3. Reason 4

[70]Mr Boyle submits that in so far as Reason 4 played a part in the Inspector's conclusion, it should not have done so. There is no finding in this paragraph that the Al-Dar Cafe causes harm. There is no finding that planning permission for the Al-Dar Cafe would set a harmful precedent.

[71]I am not persuaded by this attack on Reason 4. The RUDP makes it clear that one must consider the cumulative impact of proposals such as this one: see the passages quoted in Part 2 above, in particular paragraph 7.49(e) and paragraph 8.89.

[72]I am inclined to agree with Mr Boyle that Reason 4 played only a modest part in the Inspector's final conclusion. Nevertheless, in so far as Reason 4 did contribute to that conclusion, I am unable to detect any error of law. Reason 5

[73]Mr Boyle submits that there was simply no evidence that the proposal would cause harm to the environmental quality of the area. On the contrary, the health check carried out by the Council in August 2002 led to the opposite conclusion.

[74]The first point to note here is that Reason 5 is expressed to be a minor point rather than a principal consideration: see the last sentence of paragraph 25 of the decision letter. The second point to note is that the health check carried out by the Council (Appendix 9 to Mr Raven's evidence at the second inquiry) does not all point one way. In Table 6 of the health check, the relevant part of Edgware Road was marked as good in ten respects, as average in twelve respects and as poor in one respect. The Inspector also had the advantage of his own inspection and of extensive evidence, both oral and written, about the site from witnesses. The weight which the Inspector gave to individual pieces of evidence and the manner in which he interpreted the conflicting strands of the health check was entirely a matter for him. It seems to me that in Reason 5 the Inspector applied paragraph 7.57 of the RUDP in an unexceptionable manner. Accordingly, I reject Mr Boyle's criticisms of Reason 5.

[75]Let me now stand back from the detail and look at the general picture. Although Mr Boyle put his submissions most attractively and disavowed any intention to stray beyond the confines of section 289 of the 1990 Act, I fear that that is what he has done. Mr Boyle has tested the Inspector's findings against the evidence. Mr Boyle has put individual sentences of the Inspector's decision under a magnifying glass, indeed sometimes under an electron microscope. In the event, those passages of the decision letter have survived such scrutiny. But the purpose of an appeal under section 289 is not to carry out a rerun of the original enquiry: see ELS Wholesale (Wolverhampton) Limited v Secretary of State for the Environment

(1987) P&CR 69

at page 72. Although this decision relates to an appeal under section 246 of the Town and Country Planning Act 1971, the principles stated by the Divisional Court in ELS remain valid.

[76]The purpose of an appeal under section 289 of the 1990 Act is to identify any errors of law made by the Inspector: see the reasoning of Sullivan J in R (on the application of Newsmith Stainless Steel Limited) v Secretary of State for the Environment, Transport and the Regions

[2001] EWHC Admin 74

at paragraphs 5 to 8. These paragraphs seem to me to be pertinent even though Sullivan J was there dealing with an appeal under section 288 of the 1990 Act.

[77]Having followed through the detail of the claimant's arguments, I am quite satisfied that there was no error of law in the present case. On the contrary, the Inspector's findings were soundly based and his decision should be upheld. For all of these reasons, Ground 1 of the claimant's appeal is rejected. This leads to the conclusion that the enforcement notice must be upheld.

Part 6. The Second Ground of Appeal

[78]In view of my decision on the first ground, the second ground of appeal becomes academic. If the Al-Dar Cafe is going to cease operating altogether, it is unreal to discuss whether or not the Al-Dar Cafe should close at 11 pm in the evenings. In the circumstances, I hope that I shall be forgiven for dealing with the second ground of appeal extremely briefly.

[79]It seems to me that there was an abundance of evidence to support the Inspector's conclusions in paragraphs 28 and 29 of the decision letter concerning night-time noise and disturbance. This abundance of evidence included extensive evidence from both parties. The inspector's conclusions following on from paragraphs 28 and 29 are set out in paragraph 30 of the decision letter. There is no error of law in this reasoning. The imposition of a condition that the cafe (if it existed) should close at 11 pm seems to me to be entirely in accordance with the provisions of the RUDP which I have quoted in Part 2 above.

[80]In the result, therefore, I reach two decisions about the second ground of appeal:(1) Ground 2 could not be a basis for granting any relief to the claimant.

(2) Ground 2 fails on its merits.

Part 7. Conclusion

[81]For the reasons set out in Parts 4, 5 and 6 above, the claimant's appeal under section 289 of the 1990 Act is dismissed. Therefore, the Inspector's decision will remain effective. I am grateful to all counsel for all three parties for the considerable assistance which they have given to the court.

[82]MR MOFFETT: My Lord, I am grateful for that. In those circumstances the appropriate order would simply be to dismiss the claimant's appeal. Given your Lordship's decision, I would ask for the Secretary of State's costs.

[83]MR BOYLE: My Lord, I have no objection or resistance to either of those but I do have an application of my own.

MR JUSTICE JACKSON: Yes, of course.

[85]MR BOYLE: I am grateful.

MR JUSTICE JACKSON: Yes, Mr Boyle.

[87]MR BOYLE: My Lord, as is usual in such matters, I express first of all that I hope my Lord will not take this as a matter of discourtesy given the courteous way in which the case has been conducted. I am, however, instructed by my client to seek permission to appeal this matter. My Lord, the matter is an appeal on an appeal and I must do more than merely show that I have a reasonable prospect of success, but also to show that there is some general interest arising on the appeal.

[88]MR JUSTICE JACKSON: Before you go further, is this an application you can make to me at all, because the statute provides that permission for a second appeal can only be given by the Court of Appeal?

[89]MR BOYLE: My Lord, if that is the case then I shall do so.

[90]MR JUSTICE JACKSON: Does the hearing before me count as a first appeal for the purposes of section --

[91]MR MOFFETT: My Lord, I was going to say it is Part 52, Rule 52.13.

[92]MR JUSTICE JACKSON: Section 57 of the Access to Justice Act 1999 and Rule 52.13 which is subordinate to that statutory provision. Can counsel assist me on this threshold question?

[93]MR MOFFETT: My Lord, I do not have a copy with me but I know that the Planning Encyclopaedia takes the view it would be a second appeal and permission would have to be sought from the Court of Appeal. I do not have a copy with me but I did look at this recently and it does say that. Beyond that, the only way I can assist your Lordship is to again refer to the approach that has been adopted by Sullivan J in this field. He has taken the approach in other cases that it would be a second appeal and he does not have the power to grant permission.

[94]MR JUSTICE JACKSON: I quoted the wrong provision. It is not section 57. The relevant provision is section 55. I am sorry.

[95]MR HONEY: My Lord, if it would be of assistance I appear in place of Mr Phillpot. It is my submission that this is a second appeal so permission is necessary from the Court of Appeal, although I do not have a Planning Encyclopaedia with me.

[96]MR BOYLE: My Lord, I am grateful to my learned friends. I had the right test but the wrong person to ask.

[97]MR JUSTICE JACKSON: For the avoidance of doubt, I rule that I do not have jurisdiction to hear your application for permission to appeal.

[98]MR HONEY: My Lord, I have an application to make for the claimant to pay Westminster City Council's costs in this case. There were good reasons, in my submission, for doing so. First, because it was necessary for the City Council to attend to deal with the proper meaning of the development plan policies, and secondly, to inform the court of the full factual position on the issues, including the evidence that was before the Inspector. The principles which apply are set out in the Bolton case and, in my submission, my Lord, we fall within both of those.

MR JUSTICE JACKSON: Where is Bolton?

[100]MR HONEY: I am afraid, my Lord, I do not think it is in the bundle. I have one copy which is marked but I can refer to the relevant parts of it. It is the judgment of Lord Lloyd. (Handed). It is over the page. The general principle is that a second set of costs are not to be awarded unless there is a separate issue not to be covered by the first defendant, or an interest requiring separate representation. My Lord, in my submission, both of those are met in this case. The proper role of the First Secretary of State as the first defendant is, of course, to protect the Inspector's decision. The Secretary of State has no interest in the interpretation and application of the Council's policies but that is a significant issue which can have very serious consequences for the Council.

[101]The claimant's challenge in this case raised issues on the proper interpretation and application of important policies in the RUDP. Submissions, my Lord, were necessary as to the correct meaning in order to safeguard the public interest in future development control decisions and, my Lord, as you will see from the Bolton case, the importance of the outcome for a party is a relevant consideration.

[102]The reasons for Westminster appearing were set out early on in the case in the first witness statement of Mr Simmons. Indeed, the second witness statement went on to explain the background to the reasoning for the Stress Area designation and also to provide a full picture of the factual background. In my submission, my Lord, had the City Council not participated and put in some material, the court would not necessarily have had all the relevant material before it which it needed. In particular, I would refer to the claimant's skeleton argument where on at least two grounds (that is paragraph 7(4) and paragraph 21) it was said that there was simply no evidence before the Inspector in relation to two issues. In my submission, my Lord, it was therefore necessary for us to put information before the court to deal with that.

[103]In my submission, the City Council was acting reasonably to explain the full factual circumstances and to assist the court and to make submissions on important policy. Your Lordship referred in your judgment to this potentially amounting to a rerun of the inquiry and, in my submission, that underscores the importance of Westminster City Council appearing to be able to assist in the limited way that it has done. In my submission, in light of the facts and the Bolton principles, Westminster City Council is properly entitled to its costs in this case because the development plan policies were separate issues which not could be covered by the First Secretary of State and there was an interest on the part of the local planning authority requiring separate representation. For those reasons, I would ask for an order that the claimant pay Westminster City Council's costs as well.

[104]MR BOYLE: My Lord, I oppose that. My Lord, I do not deny it is perfectly reasonable for the City Council as second defendant to appear before my Lord in an attempt to prevent the appeal from succeeding, but they do so under the ordinary rules that they do so at their own cost, neither expecting to be the victim of a successful claimant's award of costs against them nor yet benefit from an unsuccessful claimant having costs awarded to the respondents.

[105]My Lord, there is no separate issue identified by the Council which was not adequately, fully and properly covered by the submissions on behalf of the Secretary of State; the challenge, of course, being, with due respect to my Lord, founded, as the claimant puts it, on points of law arising from the Secretary of State's decision. Therefore, the concentration of the case was the argument in respect of that decision.

[106]As to additional evidence from the Council, my Lord, it is certainly not necessary for the Council to appear as a party if the Secretary of State felt it appropriate for the evidence from the Council to come in. The Secretary of State plainly did not feel in the circumstances that it was necessary but, had they done so, then of course all the written information that was before the Inspector is in the possession of the Inspectorate and any further observations can be invited from anybody, including a witness who happens to be an officer of the authority. It does not require my learned friend Mr Phillpot or the Council themselves to appear before my Lord.

[107]MR HONEY: My Lord, all I would say in reply to that is that it was apparent from your Lordship's judgment that a great deal of assistance was derived from Mr Phillpot's submissions and the evidence. In those circumstances we ought to be entitled to our costs.

[108]MR JUSTICE JACKSON: This is an application for costs made on behalf of the second defendant, the Westminster City Council. Mr Boyle for the claimant opposes that application. He submits that the normal costs rule should apply, namely that the losing party should pay one set of costs only and that the Westminster Council, if they choose to attend, do so at their own costs. They bear their own costs, win or lose, and they are not going to be ordered to pay the claimant's costs either, whatever the outcome.

[109]It is undeniably true that I gained assistance from the helpful submissions of Mr Phillpot. He was covering much the same ground as Mr Moffett. There was only one point where he took a somewhat different line and, as both counsel for the two defendants were covering the same terrain, it is quite true that in my judgment I sometimes alighted upon the submissions of Mr Moffett and I sometimes alighted upon the submissions of Mr Phillpot. I certainly regarded the presence and submissions of Mr Phillpot as being helpful.

[110]On the other hand, I do not consider that the threshold test for ordering the claimant to pay a second set of costs as set out in Bolton Metropolitan District Council v Secretary of State for the Environment

[1995] 3 PLR 42

is met in this. In this case there was no separate issue between the Council and the claimant which was not also an issue between the Secretary of State and the claimant. It is quite true that the Council wish to be here and wish to make submissions about the interpretation of the RUDP. On the other hand, in the course of defending the lawfulness of the Inspector's decision, counsel for the Secretary of State made extensive submissions on the interpretation of the RUDP. Indeed, it was counsel for the Secretary of State who took me through the RUDP. The only point where the two defendants differed on the interpretation was really one very small point. This was whether the interpretation favoured by the defendants of policy SS 5 (C)(1) was the only possible interpretation of that provision or merely the more probable interpretation of that provision. I do not consider that such a marginal difference in emphasis merited the attendance of separate counsel when one comes to apply the test set out in Bolton.

[111]I have considered all the circumstances of this case and all the points urged upon me by counsel on both sides. On this issue I am persuaded by the submissions of Mr Boyle and I refuse the Westminster City Council's application for costs. Thank you all very much.