Bar 1 Ltd, R (on the application of) v First Secretary of State & Anor [2007] EWHC 808 (Admin)

Case No CO/596/2006[2007] EWHC 808 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 13 March 2007
Strand
London WC2
B E F O R E:
MR JUSTICE COLLINS
Between
THE QUEEN ON THE APPLICATION OF BAR 1 LIMITEDClaimant-v-
Between
FIRST SECRETARY OF STATEDefendantWESTMINSTER CITY COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR MEYRIC LEWIS (instructed by Radcliffes Le Brasseur) appeared for CLAIMANTMR JAMES STRACHAN (instructed by Treasury Solicitor) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE COLLINS: This is a claim under section 288 of the Town and Country Planning Act 1990, whereby the claimant, Bar W1 Ltd, seek to quash the decision of an Inspector on 12th December 2005 dismissing their appeal against the failure by Westminster, the second defendants, to give notice within the prescribed period of their decision on an application to vary conditions imposed on their restaurant bar in Margaret Street, London W1.[2]The conditions in question required the restaurant bar to close at midnight, and the application was for an extension until 1.00 in the morning and the kitchen equipment to be used until half an hour later.[3]The Inspector took the view that there were two main issues that he had to determine. The first was whether the longer use of the premises would result in unacceptable noise and disturbance for occupiers of nearby flats, and secondly, whether the use would add further to the saturation of entertainment uses in the central activity zone and thus contravene relevant policies in the UDP. That second issue he resolved in favour of the claimants and there is no need to consider it any further. He found against them on the issue of unacceptable noise and disturbance to adjoining occupiers. In fact there were only four flats in the immediate vicinity of the premises which were likely to be affected by any noise which emanated either from the premises or was caused by people leaving the premises and making a noise outside it.[4]The premises themselves, as I have said, were in Margaret Street, which is a one-way street giving access from Regent Street to Cavendish Square just to the north of Oxford Circus. It is quite a busy street and there are in it or nearby to it a number of restaurants and other places which are open, some of them until later in the early hours of the morning than 1.00 am. The premises themselves are roughly in the middle of the relevant block between Regent Street and John Prince's Street. If one look out from the premises the flats in question are immediately to the left of the building housing the claimants' restaurant and bar and that building or that block itself forms, as it were, the corner of Margaret Street and John Prince's Street. But as the report to the Council's committee makes clear, the main frontage of those flats is on to Margaret Street.[5]There were before the Inspector letters which came from the residents of that block of flats objecting to the extension. There was an individual letter from a lady, Ms or Mrs Eldridge, whose bedroom was on the fourth floor and it would seem the nearest bedroom to the appeal premises. She had made a complaint directly to the claimants about noise disturbance in August 2004. That complaint was, it would seem from the terms of her letter, aimed largely at noise which came from the premises and which was contributed to by customers on what is described as the "street overflow" or patio area of the bar. It seems that in the summer there was use of a small area of the pavement outside the premises where customers could sit out and of course again during the hot weather the windows of the premises would normally be open so that noise would more easily come out from the premises, and no doubt again during the summer months the occupier of the flat would tend to keep her window open.[6]In fact the complaint was dealt with by the claimants in a very civilised fashion and they managed to assuage Ms Eldridge and she accepted that, although there was still noise, because she lived in Central London, she would have to put up with a degree of noise. She was mollified by the reaction of the claimants. However, she very much objected to (as she put it she vehemently contested) the extension of the opening and operation of the bar to 1.00 in the morning. She said that she believed that she could tolerate the present situation, which she suspected was already in violation of existing noise pollution laws. She was hardly saying that she accepted the noise level was reasonable; all she was saying was that she accepted that the matter had been dealt with in a proper fashion by the claimants, but nonetheless she still suffered from noise and continued to suffer from it but would put up with it, provided it did not extend beyond midnight.[7]There were in addition letters from other occupants of the same block. They were letters in identical terms, and it is plain that the prime mover was a Mr Wroglewski. They made the point, in somewhat more colourful terms, that the noise was, in their view, unacceptable, and that the claimants had not acted in at all a responsible fashion; the claimants were seen to be fighting the laws and regulations. It is clear that that may well have been somewhat exaggerated, but it did also make the point that the Match Bar, which is the name of the claimant's enterprise, took no responsibility for their patrons who hung around after the bar closed and yelled and bickered for a further 30 to 40 minutes or more before they departed.[8]The Council had picked up this point because in its written representations to the Inspector on the appeal it said this:
"The nearest residential accommodation are four flats on the upper floors of 14 John Prince's Street. As well as backing onto the lightwell shared with the Match Bar, these flats extend along the Margaret Street frontage almost up to the application site. They are therefore susceptible to increased noise and disturbance. Such disturbance is generally caused by loud talking, shouting of farewells, the banging of car doors, starting and revving of engines, car horns, and general pedestrian and vehicular movement."
But it went on to make the point that there were no longer any objections from the Environmental Health department because it was accepted that there were measures that could be taken.[9]The Inspector described in his report that there were a raft of controls which could deal with the problem of internal noise, for example windows would have to be shut, and there would be some rearrangement of the interior of the premises and, I suppose, perhaps air conditioning could be installed so that windows would not need to be opened even in the summer. But the point was made in the report that, whilst Environment Health no longer objected, even if the issue of internal noise could be controlled, that did not take account of customers leaving the premises who might cause noise and were outside the control of the applicants.[10]The claimants sought to deal with the representations both from the residents themselves and from the Council. In specifically dealing with the complaints by the letters drafted by Mr Wroglewski, they said:
"There is no evidence from any of those persons in the locality of the appeal site after closing time are or were customers leaving the appeal site. The appellant has undertaken a survey of customers on Friday, 7th October 2005, Fridays being generally the busiest night of the week, which shows that a hundred per cent move towards Regent Street when they left March Bar. There was no evidence to suggest that customers never hang around close to 14 John Prince's Street after closing time."
That survey resulted from a questionnaire which was filled in by those customers who were prepared to do so, asking them whether they were going to go straight home after their evening, and how they would get home, and if they were not going straight home where would they be going on to continue their evening. What that showed of the 91 people questioned, (since the capacity is certainly at least 200, Fridays are the busiest night and so 91 may well not have been all those who were at the premises that particular night) it appeared that 51 per cent said they would be going straight home and 45 per cent that they would be going on somewhere, 4 per cent not having reached any decision. Of those who were going straight home 21 per cent would take the tube, others would walk, use a minicab or take a bus. But all said they would be going in the direction of Regent Street. The others, it seems the vast majority, would have continued their evening in Central London somewhere, mostly in Soho. When asked what time they planned to leave the bar that night, 84 per cent said when the bar closed. The suggestion is made that certainly so far as those who wanted to travel by tube were concerned since the tube does not operate after about 12.30 at the latest, and possibly a bit earlier, there is no indication that they at least would have been likely to remain on until 1.00 am if the opening was extended. Nonetheless, it is reasonable to assume that the majority of those who went to the bar would be likely to stay on until closing time.[11]That was the material before the Inspector. It related to possibility of noise, particularly noise from those leaving the premises between midnight and 1.00 am.[12]The Inspector's reasons (I do not propose to go through them all) included the following. At paragraph 8 he said:
"The noise from the premises may emanate from within the buildings or, often after hours, from people congregating in the street outside. On the first matter, the site has openable windows which could be required to be kept closed by means of a condition."
He went on to deal with that. He referred to the closing of the windows having some limited effect on the noise from within and, as he put it, as was indicated "in the letter from a resident whose bedroom window is above the shop front." I shall come back to that because Mr Lewis relies on it to say that the Inspector misdirected himself or failed to have regard to a relevant consideration because he misunderstood the evidence of Miss Eldridge.[13]The Inspector went on in paragraph 9:
"The same objector realises that some disturbance is inevitable if the area is to maintain its lively evening activity. But this needs to be balanced against the needs of local people to get a good night's rest. There have been complaints about the music and other noise coming from the ground floor café/bar use and a noise abatement notice was served on the operator. It seems to me that the excessive noise is likely to have been the result of poor management at that time, rather than the inability of the building to contain the noise of people to reasonable levels. The correspondence from the Department of Community Protection indicates that noise could probably be regulated to within acceptable limits by a raft of conditions. Nevertheless, it appears to me that the complaints of noise from within the building are indicative of the problems that can occur when noisy uses are close to dwellings. If occurring between 12 pm and 1 am, noise is likely to be considerably more annoying than if it stopped at midnight."
So what he appears to be saying there is that he accepts that measures can be taken to control noise from within the building, although he does not appear to be completely satisfied that that would cure any potential problem, particularly after midnight. Nonetheless, if that had been the only objection it may well be that his decision would not have been the same. However, in paragraph 10 which perhaps is the most important paragraph, he says this:
"10. However, it is my view that noise from people leaving the premises is likely to have an equal, or possibly greater impact. The noise normally occurs most frequently and intensely at closing time. I appreciate that the new licensing laws may mean that people will leave bars over a longer period. In this case, the peak of noise is likely to be delayed into the latter part of the period between 12 pm and 1 am, many of the 200 or so customers may be leaving. The potential for disturbance would be very great as there is at least one bedroom above the frontage, where there would be the greatest concentration of customers leaving from these premises. Although it is likely that a maximum of only 4 flats would be affected, I consider that the effects could be very significant and would be more likely than not to have a harmful effect on the residents' living conditions. In addition, noise on the streets is not controllable by planning legislation, though it can be controlled to some extent under the licensing legislation. 11. There are other pubs and cafés in the area. Although the customers may disperse quickly via the good public transport, they could add to noise in the street which is in any case quite noisy because it is a main route. These entertainment premises have a variety of opening hours, some being open till much later than 1 am. The effect of these staggered opening hours may be that customers of these uses leave and disperse over longer period. However, it is the general noise and disturbance close to the appeal premises about which I am concerned. It seems to me that much of the legislation is concerned with extremes of anti-social behaviour. Such legislation includes the Environmental Protection Act and Statutory Nuisance Act and the criminal law. Often outside pubs and cafés there are individual instances boisterous and lively behaviour which, although not extreme or prolonged, can be very annoying to close residents early in the morning. This may be seen as a price to be paid for a '24 hour city', but I do not consider the price acceptable in these circumstances."
And he goes on to make the point that the UDP policies attempt to strike a balance between the needs of ensuring that cultural and leisure activities contribute to the economy of the central activity zone and the balance had to be reached between those needs and those of residents. He says that in his view the scheme would fail to protect the environment of permanent residents and that would be especially true during the summer, when customers leaving might well wish to remain in the streets and residents would want their windows opened. Then he went on to consider the conditions and the possibility of a temporary extension.[14]His view was that there was clear evidence that late opening was likely to harm living conditions. If circumstances changed in the future a new application could be made, but it was his view that temporary permission should not be granted because, as I say, he had reached the clear view of harm.[15]He was referred to two decisions of inspectors relating to the grant of temporary permission to, in the one case, a snooker hall and another a bar, in other parts of the country. He indicated that in his view they were not helpful because they were based on their own different facts. To anticipate a submission made by Mr Lewis that he misdirected himself in that approach, in my judgment he was absolutely right. It is very rare that decisions of planning inspectors in other cases can be relied on as giving guidance to an inspector in an individual case. Sometimes they may if they deal with a point of principle and do not depend on their own facts. But if, as Mr Lewis was compelled to accept when looking at the terms of those decisions, they did depend upon their own facts, the Inspector cannot be criticised for not being influenced by them. If Mr Lewis has a good point that the Inspector should have taken the view that this was an appropriate case for temporary permission because there was not sufficient evidence to justify his conclusion that the extension to 1.00 am was likely to harm living conditions, then that point stands as a good point on its own and it does not need reference to other decisions of inspectors to bolster it.[16]The first ground relied on by Mr Lewis related to the Inspector's observation in paragraph 8 that Ms Eldridge's bedroom window was above the shopfront. It certainly was not in the same building, that is true. But the Inspector does not say that she was in the same building. It was in a building adjacent and looked out over the front of the entrance to the premises. It seems to me that it is quite clear that the description by the Inspector is one which cannot properly be criticised. Unless one assumes that the Inspector had made a mistake and assumed that it was in the same building, nothing turns on it. Even if the Inspector did make the false assumption nothing turns on it. If people are going to make noise outside, that noise will be, and indeed was intrusive to Ms Eldridge whose bedroom window was above the source of that noise. So with respect to Mr Lewis, his point, as I have mentioned in the course of argument, is a thoroughly bad one.[17]His real ground is that there was no sufficient evidence before the Inspector to justify his conclusion that there would be noise from those leaving the premises. That that was what tipped the balance against the claimants is apparent from the terms of Mr Wroglewski's letter. Ms Eldridge does not in terms complain about noise of people leaving, and the observations in the publicity letters do not show that it was customers of the Match Bar who were responsible for the yelling and bickering outside of which complaint is made. And he submits that the response, together with the survey to which I have referred, shows that people would not generally go in the direction of the flats, because they go in the opposite direction towards Regent Street. But what the survey does not indicate is whether they would perhaps hang around saying their farewells, or whatever, before they moved on to decide where they were going, whether home or to other entertainment in the centre of London.[18]It seems to me that the Inspector was entitled -- It really is a matter of common knowledge if for no other reason -- to have taken the view that there was a likelihood that people would make some noise when leaving the premises, maybe not by shouting or trying to make a noise, but disturbance would be inevitable. Indeed that is clearly the concern of the residents, including Ms Eldridge. She does not specify in her letter of opposition the nature of the noise that she expected, merely that she was concerned that there would be noise.[19]The claimants could have sought a public enquiry had they so wished, rather than the matter being dealt with on written observations, in order to challenge the suggestion that some patrons of their premises were likely to make a noise outside. Equally, they could have obtained positive evidence from their point of view that there was no real noise created by their patrons at closing time on or after midnight. Mr Lewis submits that the Inspector was not entitled to conclude as he did, let alone to say there was clear evidence to support his conclusions without himself at least inspecting, for example going to the premises at midnight to see for himself what actually happened. Maybe he could have done that, but I have to decide whether what he did decide can be said to have been flawed by an error of law. It seems to me that this was very much a matter of judgment for the Inspector. There was material from the objections from the residents, coupled with the views of the Council taking on board those complaints, coupled with his knowledge of what was to be expected from those leaving establishments such as the Match Bar, which justified the Inspector forming the view that there was likely to be unacceptable noise and disturbance. If he formed that view, and if that was a view that he was entitled to form, then he was entirely justified in deciding that it was not an appropriate case for a temporary permission. No doubt he could have done that. No doubt it would not have been an error of law for him to have so decided. But the system involves that Inspectors form their judgment on the relevant facts in deciding whether permission should or should not be granted, and this Inspector formed his judgment, in my view on a proper basis, that the appeal should be dismissed.[20]I should say that it seems to me on the facts of this case that, were the claimants to gather sufficiently cogent evidence to show that in fact there was likely to be no real problem with external noise for whatever reason, then it would of course be open to them to make a fresh application on the basis that they had further and better evidence to show that the matters that were held against them that led to the refusal had been remedied. But as it is, I am afraid I dismiss this claim.[21]MR STRACHAN: In light of your Lordship's judgment I ask for an order in those terms. I also have an application that the claimant pays the defendants' costs.

MR JUSTICE COLLINS: Mr Lewis, you cannot resist the costs.

[23]MR LEWIS: Not in principle, my Lord. As to the detail I will just take instructions.

MR JUSTICE COLLINS: I have not seen any schedule.

[25]MR STRACHAN: There is a schedule, my Lord.[26]MR JUSTICE COLLINS: I have not seen that. Are you asking for summary assessment?[27]MR STRACHAN: I am, my Lord.[28]MR LEWIS: We received a schedule, my Lord, I am afraid I do not think either side has lodged it with the court, because it has no signature.[29]MR STRACHAN: I think in fairness to my Lord the only matter perhaps may require adjustment as far as we are concerned is attendance at court, because the hearing was listed for half a day today. We felt as if we were going to be here for a day, but your Lordship has dealt with the matter rather ---[30]MR JUSTICE COLLINS: I did actually wonder why this was given a day's estimate. I assumed it would be no more than half a day's case.[31]MR STRACHAN: I can see that that might necessitate attendance at the hearing on page 2, item C, to ---

MR JUSTICE COLLINS: I think six hours will have to go down to three, will it not?

[33]MR STRACHAN: Yes, my Lord.[34]MR JUSTICE COLLINS: So we have at least halved it; so that takes off £270. That reduces it to?[35]MR STRACHAN: It may be the fact that my own fee, which is charged ---

MR JUSTICE COLLINS: You think you are getting too much for half a day?

[37]MR STRACHAN: Regrettably I am also here on an hourly rate. It may be that my own fee will inevitably be reduced.

MR JUSTICE COLLINS: Do they reduce you nowadays if you are not in court for the day?

[39]MR STRACHAN: I believe they do, my Lord, yes.[40]MR JUSTICE COLLINS: They are getting meaner and meaner, are they not? What do you think you will get for half a day?[41]MR STRACHAN: I believe, my Lord, that I will have two hours removed for the afternoon, which is £200 which will be taken off my fee.

MR JUSTICE COLLINS: That brings it down to £6180.

[43]MR STRACHAN: I make it £470.

MR JUSTICE COLLINS: Yes, sorry £470 -- £658, something like that, is it not?

[45]MR STRACHAN: Something like that, beg your pardon, yes. My maths is going astray.[46]MR LEWIS: The only observation I have, my Lord, is that on the top of page 2 your Lordship has made the point that your Lordship would not consider this necessarily to be a case as long as a day. My learned friend and I agreed half a day to a day, and you will see that both he and I, having listed five authorities which happily having your Lordship try the case we did not refer to them.[47]MR JUSTICE COLLINS: I appreciate your difficulty always in these matters because you have to recognise, I suppose, the possibility it will not be a judge who necessarily has knowledge of ---[48]MR LEWIS: Your Lordship's experience.[49]MR JUSTICE COLLINS: Actually if it helps the Bar I think it would be sensible if you would always when making assessments of time put in an assessment which is one in which you say it was appropriate for a judge who was a planning judge and one which might be greater if it was not. But we do try and on the whole succeed in putting planning cases before judges who have planning experience. We have a number of deputies too, as you may know, who we use from time to time as well who are -- in fact there are three now: Judge Mole, Andrew Gilbart and Susan Hamilton, all of whom of course have planning experience. So it would be helpful if you think in those terms because that gives the list office the right message.[50]MR LEWIS: The Practice Direction requires one to put the time estimate at the front of one's skeleton argument; if one said suitable for a planning judge or whatever.[51]MR JUSTICE COLLINS: If you make it clear that if it is a planning judge it will be half a day or whatever, and if necessary add a bit, if it is not a planning judge ---[52]MR LEWIS: The only point I had, my Lord, was whether a case of this sort justified, top of page two, 18 hours at ---

MR JUSTICE COLLINS: That seems quite a lot.

[54]MR LEWIS: -- at £160 an hour working on documentation. I do not know what that involved because the burden falls on the claimant to prepare the bundle.

MR JUSTICE COLLINS: You produce the bundle?

[56]MR LEWIS: Yes, my Lord.

MR JUSTICE COLLINS: Mr Strachan, why so long? It is only a short point.

[58]MR STRACHAN: My Lord, (inaudible) it is not large and this matter cropped up on a number of occasions, in fact ---

MR JUSTICE COLLINS: Taking instruction from the Department and so on.

[60]MR STRACHAN: My Lord exactly. When a claim is received ---

MR JUSTICE COLLINS: You now go to the Inspector who deals ---

[62]MR STRACHAN: One has to take instructions, particularly when factual matters are raised. That then includes providing advice internally to the Department before deciding whether to instruct counsel. So in my submission 18 hours in a case of this kind is an entirely reasonable amount of time.

MR JUSTICE COLLINS: I see the point you make.

[64]MR STRACHAN: One has to take instructions in these matters to ensure they are dealt with properly and fairly to the defendants.[65]MR JUSTICE COLLINS: This is terribly voluntary, it always is on these costs assessments, but Mr Lewis, you think you really would be able to object if I said a global £6,000?[66]MR LEWIS: No, my Lord.

MR JUSTICE COLLINS: That is what I will do.

[68]MR LEWIS: My Lord, at the risk being chided (inaudible), simply to protect the claimant's position may I make a formal application for permission.[69]MR JUSTICE COLLINS: You could make a formal application and it will be formally refused. The case turns entirely on its own facts.