Wed, 26 Jan 2011
Kevin Leigh and Philip Williams, barristers at No5 Chambers, were successful recently in the Court of Appeal. They overturned a planning decision in an important case dealing with expert evidence in planning appeals on behalf of their client, Mr Theodorus Georgiou, part owner of the award-winning restaurant and bar, Aquum.
Located at 68-70 Clapham High Street, London, the restaurant was refurbished over 14 months in 2008 to 2009 at a cost of around £1.5M and opened its doors in March 2009. This investment saw a major improvement to the appeal of the street and the local economy.
The local planning authority retrospectively granted consent for some of the changes sought. However, it added a condition preventing, during opening hours, the use of new bi-fold doors on the front that opened onto a street-level seating area, cordoned-off by a railing and adjacent to the highway. This was because an inspector, who visited Aquum during the day, speculated that noise from the bar would impact upon residents in the neighbourhood.
Aquum was already open and thriving, attracting - among others - a number of celebrities and football players. The owners appealed against the imposition of the condition and, in a thoroughly professional and conscientious manner, appointed an acoustic consultant to produce evidence as to the effect of noise from the use of the restaurant.
The conclusion of the consultant was that any noise from within the bar would have dissipated by the time it had reached the area beyond the doors. The consultant’s calculations showed that any noise generated from inside was more than cancelled out by the general noise levels of the High Street, which were in excess of 70 decibels. The report concluded that opening the bi-fold doors in no way impacted upon the noise-levels of the surrounding area.
The original planning appeal was dealt with by written representations conducted by the architect appointed by the owners of Aquum but the inspector refused to delete the condition and rejected the appeal.
Tony Pittas, Head of Litigation at Hall and Co Solicitors in East Dulwich instructed Kevin Leigh and Philip Williams of No5 to represent the interests of the owners of Aquum.
Mr Leigh challenged the decision letter in the High Court but, while the Deputy Judge acknowledged that the inspector did not expressly address the conclusions in the noise report, he rejected Aquum’s case because he considered that the inspector was not bound to do so.
Mr Leigh appealed to the Court of Appeal where, leading Mr Williams, he successfully persuaded the court that the decision was unlawful. They argued that the inspector had not made clear the reasons for refusing to delete the condition requiring the doors to remain closed. Therefore, it was impossible for the owners of Aquum to understand the reasons, whether they were in fact lawful and what they could do to address the issues in the hope of arriving at an effective solution.
In addition, the inspector had not challenged the expert evidence that had also suggested that if any noise had risen above the anticipated levels it could have been controlled by a noise-limiting condition. The barristers from No5 also said that it was significant that the inspector had not given any reasons for disagreeing with the expert.
Mr Leigh and Mr Williams successfully argued that the inspector was required, as a matter of law, to grapple with the essential – and only – issue, namely the noise potentially emanating from Aquum, via the bi-fold doors and into the surrounding neighbourhood. He did not do so.
The barristers maintained that if the decision letter was upheld it would drive a coach and horses through the legal protection that makes the review of planning decisions ‘Article 6’ compliant. Permitting the decision letter to stand would have condoned two wrongs. First, an inspector’s failure to address expert evidence concerning the heart of the case and, second, the making of a speculative assessment, or planning judgement, that was contradicted by the facts, including actual noise measurements conducted by the consultant.
Giving the leading judgement Lord Justice Etherton (Lord Justice Mummery and Mr Justice Hedley concurring) emphasised that the required degree of particularity as to reasons depends entirely on the nature of the issues falling for decision.
He held that the inspector failed to give any reasons for rejecting the analysis and conclusions in Aquum's expert's report. This failure to do so left the bar owners in doubt as to the potential for a future application as the decision letter gave them no steer with regards to obtaining some alternative planning permission in relation to the noise issue.
The judgement is a salutary warning for parties involved in planning appeals. Even in the most basic (and increasingly common) form of planning appeals, written representations, the courts will not require planning inspectors to search around to find alternative solutions or invite further representations from the parties to save or vary a planning permission to the advantage of an appellant.
It is for the appellant, in this case Aquum, and/or the advisors, to ensure that all options are properly explored before an inspector. This means that appeal representations should be thoroughly prepared and parties should be careful to consider whether they have explored all aspects of their appeal in the material upon which they rely.
The inspector involved in this appeal failed to act lawfully by drafting and issuing a decision letter that did not address the issues. It also left Aquum’s owners wondering if the inspector had actually considered the acoustic consultant’s report or just dismissed it out of hand and what steps they could take to address the problem and continue to operate their successful bar as they wished.