Adigwe, R (on the application of) v Secretary of State for the Communities and Local Government [2008] EWHC 3116 (Admin)

[2008] EWHC 3116 (Admin)Case No CO/10476/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 28 November 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE CRANSTON
Between
THE QUEEN ON THE APPLICATION OF ADIGWEClaimantv
Between
SECRETARY OF STATE FOR THE COMMUNITIES AND LOCAL GOVERNMENTDefendant
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)
Counsel did not attend for ClaimantMr A Phillpot (instructed by Treasury Solicitors) appeared for Defendant
J U D G M E N T

MR JUSTICE CRANSTON: Yes.

[2]MR PHILLPOT: May it please your Lordship, I appear on behalf of the Secretary of State in this matter. There is no one here.[3]MR JUSTICE CRANSTON: We know one of the claimants has gone back to Nigeria but the solicitors are still on the record apparently.[4]MR PHILLPOT: My Lord, I had understood that the solicitors had come off the record.[5]MR JUSTICE CRANSTON: I thought they had come off the record as well. The office is not sure. What do you want me to do?[6]MR PHILLPOT: My Lord, what I would ask your Lordship to do is to dismiss the application with costs. My Lord, I have put in a skeleton argument. It is in fairly broad terms. I hope it assists your Lordship.

MR JUSTICE CRANSTON: Do you want me to give judgment?

[8]MR PHILLPOT: I would ask for judgment for safety's sake. Is there anything I can assist your Lordship on?

MR JUSTICE CRANSTON: No, that is fine.

JUDGMENT

[10]This is an application to quash under section 288 of the Town and Country Planning Act 1990. The claimants in this case have not appeared today. It appears that one has returned to Nigeria. The solicitors for that claimant, Mr Adigwe, have lodged a notice of discontinuance, although there is some uncertainty as to whether that is effective. The solicitors have not demonstrated that they have received instructions. Background[11]The application relates to a decision of a planning inspector, dated 11 October 2007. It involves premises in Greek Street in central London. The claimants had applied for permission for permanent use of the third floor of the property at number 22 as a booking office for hire vehicles. The planning authority, Westminster City Council, refused planning permission.[12]Westminster had granted temporary planning permission, which had allowed the third floor of number 22 to be used as a booking office for private hire vehicles. That temporary permission was allowed to continue for a period of a year, which expired in October 2006. Westminster had granted the temporary planning permission to determine the extent of any noise or disturbance, or traffic congestion, which might be caused by the proposed use. Conditions were imposed, in particular, that the office only be opened between 9 o'clock in the morning and 7 o'clock in the evening and that the office should not be open to use by customers or drivers. Any communication with the office would by via telephone, e-mail or internet.[13]The claimants, in October 2006, submitted an application for permanent planning permission. The planning authority was able to monitor the use of the premises for a period in early January 2007 by means of CCTV cameras. What they found was that there was considerable congestion outside the office. Vehicles were parked on double yellow lines on several occasions, it was seen that they picked up customers and, most importantly, the condition about hours was breached. In addition, there was a flashing light placed outside the premises. The planning authority found that all this was objectionable to local residents, occupiers of a business in the same building and the local police. There is a letter which sets out the concerns of the local police. In addition, there are two letters from a business which occupied one of the premises at number 22.[14]Ultimately, on 1 February 2007, the claimants' application for planning permission was refused. The reason given was that the use of the premises as a booking office for private hire vehicles was unacceptable because it was having a detrimental impact on the amenities of surrounding occupiers by virtue of noise, disturbance, traffic congestion and parking problems. In particular, the proposed use did not meet certain policies, in particular, the Unitary Development plan. That plan -- Policy SS12 -- provides that applications for mini-cabs or motor cycle courier offices will not be permitted where they would have a detrimental effect on residential amenity or on highway safety, traffic flows or parking and that conditions might be imposed. In the policy application statement attached to that policy it is explained that the concern is with these detrimental effects. It may be that conditions of use would be able to address them, but only in a situation where the applicant could demonstrate that there would be no harm to residential amenity or local environmental policy.[15]The matter was appealed to the Secretary of State and an inspector was appointed. There were written representations, considered by the inspector. Representations by the Soho Society, the police and a neighbourhood business were before him. He also made a site visit.[16]The inspector issued his decision. He noted that the claimants asserted that the activities which the planning authority had said occurred had not occurred, but he said that they had put no explanation in evidence before him. The claimants had not sought to dispute the CCTV evidence. He noted the views of the police. He concluded that the claimants had not complied with the conditions imposed on them. He commented on the fact that it was a busy area with many parked vehicles and he said that in his view it was not an area that should be used for businesses which were likely to attract the type of problems recorded on the CCTV, or to cause serious traffic problems.[17]At paragraph 6 he said:
"Accordingly, it is my conclusion that the continued use of the appeal premises as car hire offices would have a significant effect upon the amenities of surrounding occupiers of residential and commercial properties by creating noise, disturbance, traffic congestion and parking problems. This would create a poor living and working environment for nearby occupiers and be contrary to the objectives of the Unitary Development Plan (UDP) in forming a pleasant and safe community. Such circumstances would in particular be contrary to the adopted UDP policy of strictly controlling the safe and proper operation of mini-cab offices."
Legal Principles[18]The law in this area is well-known. Matters of planning judgment are within the province of the inspector; the weight, in terms of any material consideration, is a matter for the inspector; and an inspector's decision letter has to be read in a straightforward manner. As long as the reasons given by the inspector are intelligible and adequate no objection can be taken. The Issues[19]In my view the reasons now advanced by the claimants to take issue with the inspector's decision letter have no substance to them. The first point raised is that there are no residential properties in the immediate vicinity. That has nothing to it because the planning authority had identified the residential properties nearby and in the light of the written submissions and also the site visit the inspector concluded that the continued use of the premises as a mini-cab office would have an effect on surrounding residential, and commercial, properties. That conclusion was based on his planning judgment.[20]The second factor raised was that the continued use of the premises would not significantly contribute to disturbance in the area. It was already a busy thoroughfare and that had to be taken into account. Again, the inspector recognised that fact in his decision letter. The claimants also contended that there were two other legally operated car hire offices in the vicinity. The inspector was aware of that and refers to it in his decision letter. So he did not overlook these factors and it was up to him to give them such weight as he thought fit.[21]The third main challenge raised by the claimants relates to the failure to abide by conditions. The claimants say that the conditions, if complied with, would have effectively prevented them from carrying out a business of a private hire office and that in giving weight to their failure to abide by the conditions the inspector had not taken into account that no similar conditions had been imposed in relation to the two other car hire premises in the vicinity of Greek Street.[22]In my view there is nothing to this ground. The inspector was aware of the conditions. He was entitled to conclude that the claimants had operated in breach of those conditions. The weight that he attached to that was a matter for him, but it is clear from his decision letter that what led to the dismissal of the appeal was not so much the fact that conditions had been breached but rather the consequences in terms of the disturbances which resulted from those breaches. There is nothing in the decision letter to suggest that the inspector had assumed that use could be carried on within the hours originally permitted. Indeed, it is clear that he approached the appeal on the assumption that the use would be likely to continue outside those hours. The fact that the other car hire offices in the vicinity were not constrained by similar conditions was a consideration to which the inspector could give such weight as he thought it deserved.[23]The claimants next suggest that parking problems and traffic congestion could be addressed by means of other legislative controls. That was a matter which was for the inspector to give what weight he considered. Because there were other controls for parking and congestion does not mean that these factors cannot be taken into account by the inspector in reaching his conclusion.[24]It is also said that the inspector took into account an immaterial consideration. That was that the continued use of the premises would lead to an increase of crime and a fear of crime when there was no evidence to suggest that the claimants or the drivers were responsible for any such increase. Increase in crime or fear of crime is a material consideration which can be taken into account. It is a matter of planning judgment. The inspector reported the views expressed by the police. Ultimately, however, the inspector did not rely on crime or the fear of crime in the reasons he gave in the decision letter.[25]Finally, it is said that the inspector failed to comply with the procedural requirement to give notice of his site visit. This was an application on paper and under the Town and Country Planning (Appeals) (Written Representations Procedure) Regulations of 2000 giving notification of a site visit is unnecessary.[26]In conclusion I can see no basis for the appeal and I dismiss it.[27]MR PHILLPOT: My Lord, I am grateful. Two matters, if I can. One is just a minor factual point as to your Lordship's judgment just to bear in mind. In dealing with the presence of other car hire offices in the vicinity, I think your Lordship said that it was not relied on by the claimant, but the way I put it in the skeleton, which I think reflects the fact, is not that it wasn't relied on, but it wasn't controversial that there were other car hire offices. My Lord, that is -- if I may just stress that.[28]The other matter, my Lord, unsurprisingly, is that there is therefore an application that the claimants be liable to pay my client's costs and I seek an order in this respect. MY Lord, I hope, that a schedule has been put in.

MR JUSTICE CRANSTON: I have not got that.

[30]MR PHILLPOT: I wonder if there is a spare.

MR JUSTICE CRANSTON: Just tell me.

[32]MR PHILLPOT: My Lord, the overall total, which is shown amended in manuscript on the version handed up, because of the fact that we have not taken very long today, fees at an hourly rate, is £8,478, which is made up in the way indicated on the statement.

MR JUSTICE CRANSTON: Yes.

[34]MR PHILLPOT: My Lord, may I seek an order for the claimant to pay my client's costs in that sum? My Lord, the order ought to be jointly and severally against both claimants.[35]MR JUSTICE CRANSTON: I make the order for £8,478. Thank you very much for your help.