“The fact that an appeal against an enforcement notice may be made on ground (a) – that permission, both of which may result in a grant of planning permission, is not infrequently a source of some confusion for local planning authorities wishing to challenge adverse inspectors’ decisions in enforcement notice cases. In my experience they are frequently unclear as to whether to challenge such decision letters under Section 288, Section 289 or both. The correct answer in such cases is, in my judgment, both. But it is unnecessary to resolve that issue on the facts of the present case. Here it is plain that the inspector did not even consider, much less did he decide, the appeal under ground (a). Nor did he even refer to the deemed application for planning permission.”
“(5) On any application under this section the High Court .... (b) if satisfied that the .... action in question is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it, may quash that .... action.”
“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 re-hearing and determination by him.”
“Where an appeal against an enforcement notice is brought under section 174, the appellant shall be deemed to have made an application for planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control.”
“I allow the appeal, and direct that the enforcement notice be quashed. I grant planning permission on the application deemed to have been made under section 177(5) of the Act as amended for the development already carried out......”
“9. Some of these residential units are about 35m from the pontoon where excessive noise emanating from the pontoon itself and from the additional comings and goings associated with the restaurant use would have the potential to carry over the short expanse of water. And, I am mindful of the fact that the use of the pontoon as restaurant could result in a further 30-40 covers for the restaurant, or a more intensive use still if used as a bar area only. I note that at river level, any background traffic noise is not especially loud due to the elevated position of the carriageway set behind the parapet of Folly Bridge. Inappropriate and intrusive lighting to serve the pontoon could also detrimentally and adversely affect residential amenities. 10. I have given very careful thought as to whether these matters could be effectively controlled by means of conditions. In so doing, I have had regard to Circular 11/95 and the planning history of the site. I acknowledge that not all the complaints that have been received related specifically to the use of the pontoon alone. However, it seems to me that the internal and external parts of the restaurant would be intrinsically linked. In the summer months, it would be likely that the windows to the restaurant would be open and staff and customers would pass between the 2 parts of the restaurant. If live or amplified music were to be played inside the restaurant during warm summer evenings I cannot be certain that the restaurant would keep the windows closed to comply with noise conditions to the main permission, and not to allow its remaining customers on the pontoon to listen also. The playing of such music on the pontoon itself would be even more likely to cause nuisance. I am, however, satisfied that lighting could be controlled by means of condition. 11. Limited daytime use has never been sought by the appellant in either the 2003 and 2004 applications for use of the pontoon. Indeed the appellant’s agent suggested in a letter dated1 June 2004 a closing time of 12:00 midnight if permission were to be granted. It appears that the conditions limiting the hours of use of the pontoon on the temporary permission were not complied with. Therefore, restricting the hours of use of the pontoon has never been tested. Consequently, I cannot be certain that this would overcome the problems that have already been encountered. In any event, since it would not appear to be what the appellant is seeking such condition(s) would be unreasonable. 12. The granting of the temporary permission in 2003, facilitated a trial run in order to allow a full and proper assessment of the effect of the bar/restaurant use of the pontoon on the area. However, from the evidence of that experience, I am not satisfied that the use of the pontoon could be satisfactorily controlled and managed in such a way as not to cause nuisance at night to local residents. And, Circular 11/95 is clear that a second temporary permission should not normally be granted. Therefore, in all the circumstances of the case, I share the Council’s view that it would not be practically possible to restrict the use of the pontoon to certain daytime and early evening hours only, and/or enforce strict noise limiting conditions.”
“2. The pontoon is moored along the river frontage of what at the time of the notice was the Aquavitae Italian Restaurant/bar. Mr Aziz Rahman, who has owned and managed a number of restaurants in and around Oxford over the past 30 years one of which, Aziz, in the Cowley Road, has achieved considerable acclaim, commenced a lease on the premises at 1 Folly Bridge on8 May 2006 . It re-opened on 25 May as the ‘Aziz Pandesia’.”
“9. Although the 2005 appeal included the use as a boat station the Council’s objection was plainly directed at the restaurant/bar, on the same grounds of noise and disturbance as advanced in the present appeal. The appeal was dismissed with the Inspector not being satisfied that the use of the pontoon could be controlled and managed in such a way as not to cause nuisance at night to local residents. The Council amongst other reasons contend that the Inspector just a year ago assessed the same factors in identical circumstances. That decision in the Council’s submission should in the absence of any material change in circumstances be accorded significant weight. 10. In my view, however, there have been highly material changes in circumstances, especially in relation to the consideration of a condition limiting hours of use. The Inspector in 2005 considered it to be unreasonable to impose such a condition since it did not appear that that was what the appellant was seeking. It is quite apparent from the written representations at that time that the appellant opposed the Council’s suggestion that use by customers should cease by 21:00 hours, with associated clearing of crockery, tableware and so on to cease by 21:30. Although the appellant is the same there is now a new operator, Mr Rahman, and whilst he would prefer a later time he would accept a 21:30 hour customer restriction as a workable condition allowing for one evening sitting, with an additional 30 minutes for clearing of crockery, tableware etc. 11. Paragraph 27 of Circular 11/95 indicates that conditions on these lines will not usually be difficult to monitor as those affected by contravention of their requirements are likely to be able to provide clear evidence of any breaches. Such conditions, which are expressly proposed for the appellant in this appeal, would meet the 11/95 enforcement test, and indeed, would not to my mind not offend the ‘easily enforceable’ requirement of LP Policy CP.21. The condition would be ‘appropriate’ in the context of CP.19.”
“12. It had been raining just before my pre-inquiry evening visit to the appeal site locality and there were no customers on the pontoon. Nor was the pontoon in use during my 2 accompanied visits during the evening of 21 June when conditions were dry but distinctly cool. I undertook a further, unaccompanied, inspection the following evening when it was much warmer and the pontoon was in use. In addition to a few individual tables being occupied there was one party of around 20 and another of around 15. It was a still evening and voices carried across the river, although not, during the 4 occasions when I was on the towpath close to the gable end wall to No.25 Shirelake Close, to any significant extent. From the towpath I observed, but did not hear, the party of 20 leave the pontoon at around 22:00.”
“13. There were 23 complaints about noise from the premises in 2003, 2 in 2004 and 2 in 2005. There have been none in 2006, albeit that the pontoon has only been in use from 25 May. Most have related to loud music, and there have been 2 complaints about noise when the pontoon itself has been in use by diners. On the first occasion a duo was playing inside the restaurant, but the windows were open, enabling diners on the pontoon to listen to the music. On the second occasion a jazz due was playing on the pontoon. On one occasion when the music had stopped a level of 57dB was measured from the opposite side of the river of talking and laughing on the pontoon. I am mindful that a noise abatement notice was served on the Licensee following complaints received about loud music at around 01:30 hours on23 June 2003 . A further abatement notice was served on the restaurant manager following the occasion on7 July 2005 when the jazz due was playing on the pontoon. 14. What is not in doubt, however, is that the complaints, which have been received from various addresses, mainly in Folly Bridge Court, have been essentially about loud music. A condition could reasonably and appropriately be imposed to prevent the playing of music on the pontoon and I am content that this would meet the tests of Cir. 11/95 and Policies CP.19/CP.21. The position is different again from that before the 2005 Inspector as at that time it was the appellant’s view was that residential amenity could have been sufficiently protected by a condition specifying maximum noise levels. The appellant was then of the view that there was no need to address the particular source of noise. 15. A condition specifying maximum noise levels was imposed on the permission for restaurant itself and modified in the ‘conditions’ appeal in 1999. The appellant is willing to accept the imposition of a similar condition with regard to the combined restaurant/pontoon but in my view, and on the basis that no music would be played on the pontoon, any noise from the pontoon would intermitted and irregular in nature and I share the concerns raised on enforceability. Despite, moreover, the offer from the appellants, I do not consider it to be appropriate to impose on this development a condition requiring the windows to be closed when live music is performed in the permitted restaurant since this would not be reasonably related to the appeal development. The approved restaurant is already subject to a condition on noise levels, albeit that it was breached by the previous operator.”
“22. The basis upon which permission is now sought is different from the application previously refused and dismissed on appeal in June 2005 in terms of the intended hours of operation. It is also well apparent that the fundamental source of complaint, from the analysis at the inquiry, has been loud music. On the evidence I am satisfied that any harm to local residents could be sufficiently overcome through the imposition of conditions, bearing in mind the extent to which in any event the use of the pontoon would be subject to the uncertainties of the weather. The development on this basis would not be inconsistent with the Development Plan and in my view ought reasonably to be allowed.”
“In this case the asserted material consideration is a previous appeal decision. It was not disputed in argument that a previous appeal decision is capable of being a material consideration. The proposition is in my judgment indisputable. One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency in the appellate process. Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system. I do not suggest and it would be wrong to do so, that like cases must be decided alike. An inspector must always exercise his own judgment. He is therefore free upon consideration to disagree with the judgment of another but before doing so he ought to have regard to the importance of consistency and to give his reasons for departure from the previous decision. To state that like cases should be decided alike presupposes that the earlier case is alike and is not distinguishable in some relevant respect. If it is distinguishable then it usually will lack materiality by reference to consistency although it may be material in some other way. Where it is indistinguishable then ordinarily it must be a material consideration. A practical test for the inspector is to ask himself whether, if I decide this case in a particular way am I necessarily agreeing or disagreeing with some critical aspect of the decision in the previous case? The areas for possible agreement or disagreement cannot be defined but they would include interpretation of policies, aesthetic judgments and assessment of need. Where there is disagreement then the inspector must weigh the previous decision and give his reasons for departure from it. These can on occasion be short, for example in the case of disagreement on aesthetics. On other occasions they may have to be elaborate.”
“It seems to me that a factor which is relevant to the duty to give reasons in planning decisions is the point which emerges more clearly in cases such as Flannery than in the planning cases, that the requirement to give reasons concentrates the mind and if fulfilled is likely to lead to a more soundly based decision (see Henry LJ in Flannery at page 381). This particular reasoning does not seem to me to be foreign to the policy about adequacy of reasons in a planning context, although Lord Bridge made it clear in Save Britain’s Heritage at page 168 that it is always for the party challenging the decision to show that the statement of reasons is such as to raise a substantial doubt whether the decision was reached on relevant grounds and was otherwise properly reached. Merely to show a doubt in the reasoning is not enough. At page 176 at H he spoke of the requirement to give reasons as a ‘salutary safeguard’ to show that the decision was based on relevant and rational grounds and that any applicable statutory criteria had been observed.”
“On the evidence I am satisfied that any harm to local residents could be sufficiently overcome through the imposition of conditions, bearing in mind the extent to which in any event the use of the pontoon would be subject to the uncertainties of the weather. The development on this basis would not be inconsistent with the Development Plan and in my view ought reasonably be allowed.”
“(b) The use of the pontoon hereby permitted shall not be open to customers outside 10:00 – 21.30 hours. (c) All activities associated with the operation of the pontoon as an extension to the restaurant at 1 and 2 Folly Bridge, including the clearing of crockery and tableware by staff, shall cease outside 10:00 – 21:00 hours.”