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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Oxford City Council v Secretary of State for Communities & Local Government & Anor [2007] EWHC 769 (Admin) (04 April 2007) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2007/769.html Cite as: [2007] EWHC 769 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		4th April 2007

Mr George Bartlett QC:

1. This is an application under section 288 of the Town and Country Planning Act 1990 to quash the decision of an inspector, Roger Priestley BA(Hons), DipTP, MRTPI, FRGS, granting planning permission on appeal against an enforcement notice that had been served by the claimant on the second defendant. The appeal concerns the use of a pontoon that is moored alongside restaurant premises at 1 Folly Bridge, Oxford, a 4-storey building that stands next to Folly Bridge on an island between two branches of the River Isis near the centre of Oxford. The lower ground floor, below the level of the road across the bridge, is used as a restaurant and there are 5 flats and an office on the floors above. Adjoining the restaurant is the pontoon, formerly used as a boat station for the repair, building and storage of boats, and now used, controversially in the context of these proceedings, as an extension of the restaurant. There is a mix of commercial and residential premises on the rest of the island. Directly across the river there is a punt hire business that includes boat repair and just beyond this there is a residential development of 85 flats and houses at Folly Bridge Court and Shirelake Close.
2. On 23 October 1997 planning permission was granted for the use of the building as a restaurant on the lower ground floor, an art gallery on part of the ground floor, and flats and studios on the rest of the ground floor and on the first and second floors. The permission was subject to some 25 conditions. Condition 6 required that the restaurant should be confined to the lower ground floor and that the use should be confined within the building and should not take place on any outside areas or the pontoon. Condition 12 provided that no customers should be permitted on the premises outside the period between 10.00 and 24.00 hours unless otherwise agreed by the local planning authority. Condition 17 required that noise emitted from the restaurant should not exceed 55 dB LA eq 15 minute when measured one metre from the façade of the nearest residential dwelling between 10.00 and 20.00 hours and 50dB between 20.00 hours and midnight and 40 dB between midnight and 08.00 hours. In each case the reason for the condition was the protection of the amenity of neighbouring or nearby residential properties.
3. On 21 June 1999 an inspector gave a decision on an appeal against the council's refusal to modify 6 of the conditions in the 1997 planning permission, including conditions 6, 12 and 17. He deleted the reference to the pontoons from condition 6 because they were not part of the development site and because planning permission would in any event be required before they could lawfully be used as an extension of the restaurant. He altered the hours of opening in condition 12 to 0800 to 2400 Mondays to Fridays and 1000 to 2400 at weekends and Bank Holidays. He refused to modify condition 17. He said that he was satisfied that the condition as imposed was necessary to protect those living in dwellings in the locality from an unacceptable degree of noise and disturbance. Without such a condition, he believed, there would be conflict with a local plan policy seeking to protect local residents from the adverse effects of food and drink establishments.
4. The restaurant use began in 1998. The use of the pontoon as an extension of the restaurant began shortly afterwards despite condition 6 and the lack of planning permission. In 2003 the second defendant applied for planning permission for the use of the pontoon as a boat station for the repair, building, storage and maintenance of boats and for restaurant use. On 23 June 2003 the council granted permission but limited it to a period of 6 months. The reason given was "To enable the Local Planning Authority to assess the impact of the use on the surrounding area". Other conditions required the use of the pontoon as an extension to the restaurant to cease by 9.00 pm each evening (condition 3) and for all activities associated with the operation, including the clearing of crockery, to cease by 9.30 pm each evening (condition 4); for a scheme of lighting to be approved within 6 weeks (condition 5); and for details of safety equipment to be approved, also within 6 weeks (condition 7).
5. In the event none of these four conditions were complied with, and the council issued breach of condition notices in respect of the breaches. These were not pursued because the restaurant use of the pontoon ceased in late summer 2003. The use was resumed in 2004, and on 1 June 2004 the second defendant made another application for the mixed use. This was refused on 23 August 2004, and the second defendant appealed against the refusal. The appeal was conducted by written representations, and on 17 June 2005 the inspector, Jane V Stiles, BSc(Hons) Arch, DipArch, RIBA, DipLA, MLI, PhD, MRTPI issued her decision. She defined as the main issue in the appeal "the effect of the proposal on the living conditions of local residents on Folly Bridge Island, at Folly Bridge Court, and Shirelake Close with regard to noise and disturbance". She refused planning permission because she was not satisfied, on the basis of the trial run under the 2003 permission, 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.
6. In the light of that decision the council on 24 August 2005 issued an enforcement notice requiring the cessation of use of the pontoon as a bar restaurant. The second defendant appealed against the decision on ground (a) of section 174(2), contending that planning permission should be granted for the use. A public inquiry was held over 4 days in June 2006. In his decision of 19 July 2006 the inspector allowed the appeal, quashed the enforcement notice and granted planning permission for the use subject to conditions.
7. The council have made application under section 288 to quash the grant of permission. They did not appeal under section 289 against the decision to quash the enforcement notice. This has given rise to a submission made on behalf of the second defendant by Mr Orde Levinson, a director of the company whom I permitted to represent it, that the section 288 application was invalid or alternatively ought to be rejected as an abuse of process since there was no corresponding appeal against the enforcement notice decision. In addition, in written submissions following the hearing, Ms Saira Kabir Sheikh for the claimant contended that the council should now be permitted to appeal under section 289. I should deal with both these points at the outset.
8. Under section 288(1) and (4) a person aggrieved by any action on the part of the Secretary of State as is mentioned in section 284(3) may make application to the High Court. The actions mentioned in section 284(3) include "(e) any decision to grant planning permission under paragraph (a) of section 177(1)". Section 177(1)(a) gives the Secretary of State power on an enforcement notice appeal to grant planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control. The inspector here granted planning permission in exercise of that power. So there is no doubt, in my judgment, that the claimant's challenge under section 288 is valid.
9. The relationship between sections 288 and 289 was adverted to by Sullivan J in R on the application of Wandsworth Borough Council v Secretary of State for Transport, Local Government and the Regions and 02 UK Ltd (CO/1344/2002, 29 January 2003, unreported). He said:

"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."

10. In the present case the inspector did decide the appeal on ground (a), and this was the only ground on which appeal had been made. Under section 288 the power of the court is contained in subsection (5):

"(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 a decision is quashed under this provision, a fresh decision has to be taken on behalf of the Secretary of State.

11. Under section 289(1), where the Secretary of State gives a decision in an enforcement notice appeal the appellant or the local planning authority or any other person having an interest in the land may appeal to the High Court. Appeal lies on a point of law (CPR Sch 1, RSC Ord 94 r 13(2)). The procedure differs from that under section 288 in that leave of the court is required to appeal (subsection (6)) and the application must be made within 28 days (CPR Sch 1, RSC Ord 94 r 12) rather than the 6 weeks which is prescribed in the case of applications under section 288 (subsection (3) of that section). The power of the court is contained in CPR Sch 1, RSC Ord 94 r 13(7):

"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."

12. One further provision needs to be noted. Section 177(5) provides:

"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."

13. This provision applies quite independently of section 174(2)(a), which enables an appeal against an enforcement notice to be made on the ground that planning permission ought to be granted in respect of the matters stated in the enforcement notice as constituting a breach of planning control. In every enforcement notice appeal, therefore, the inspector has before him an appeal against the enforcement notice and a deemed planning application.
14. In the present case the inspector gave his decision on each of these matters. At paragraph 25, under the heading "Formal Decision", he said:

"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......"

15. If I grant the council's application under section 288 the effect will be that the inspector's action in granting planning permission on the deemed application is quashed, so that the decision will have to be taken afresh. Since there is no appeal under section 289, however, the inspector's decision quashing the enforcement notice will stand. Thus if the fresh decision on the deemed application is refused the council will have to start the enforcement process over again and serve a new enforcement notice. As Sullivan J said in the case that I have referred to, if local planning authority wishing to challenge adverse inspectors' decisions in enforcement notice cases are unclear as to whether to challenge under section 288, section 289 or both, the correct answer is both.
16. The failure of the council to apply for permission appeal under section 289 does not however, in my judgment, render its application under section 288 invalid or an abuse of the process. As for the council's contention that that should now be permitted to appeal under section 289, it is accepted on behalf of the Secretary of State that this would be appropriate. Although the application is very considerably outside the 28-day period for seeking permission to appeal, I do not think that it would be unfair to allow it. It is of course the case that, if the decision is quashed and the Secretary of State then refuses permission and upholds the enforcement notice, there will be no need for a further enforcement notice to be served. The second defendant would become liable immediately for any breach of the notice, whereas if a further notice had to be served this liability would have been postponed. But I do not think that, even though this might benefit the second defendant, the wider public interest would be served by the need start again with further enforcement proceedings. Although (as I shall say) I have decided to dismiss the application under section 288, had I been minded to allow it I would have granted permission out of time to enable an appeal under section 289 to be determined as well.
17. The council seek to challenge the inspector's decision on five grounds. It is said that the inspector took into account irrelevant considerations; that his reasons for dismissing the council's main contentions were unintelligible or inadequate; that his reasons for departing from the previous inspector's decision were unintelligible; that he acted perversely in deciding that the use could be controlled by substantially the same conditions as those that had not been able to control the use previously and had been rejected on appeal 12 months earlier; and that two of the conditions imposed were ambiguous.
18. The principal submissions that are advanced, and the ones that on the face of it have some force, relate to the contrasting conclusions of the 2005 inspector and those contained in the decision under challenge. The 2005 inspector, having identified the main issue in the appeal in the way that I have set out above, referred to the 100 or so flats and houses on Folly Bridge Inland and across the river at Folly Bridge Court and Shirelake Close. She then went on:

"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 dated 1 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."

19. In the decision under challenge the inspector defined the main issue in precisely the same terms as those used by the 2005 inspector. He noted at the start of three paragraphs dealing with the site and surrounds and background to the appeal that there had been a recent change in the operator of the restaurant:

"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 on 8 May 2006. It re-opened on 25 May as the 'Aziz Pandesia'."

20. The inspector referred to the relevant policies in the Oxford Local Plan 2001-16 designed to prevent the grant of planning permission for uses, including restaurants, where unacceptable environmental problems or nuisance from noises, smell or visual disturbance would be caused, and to ensure the imposition of appropriate conditions where planning permission was granted. He then stated his reasons for allowing the appeal:

"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."

21. The inspector then referred to his own observations of the site:

"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."

22. The inspector then addressed the issue of noise, noting that complaints had mainly been about loud music, and the potential means of controlling this. He said:

"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 on 23 June 2003. A further abatement notice was served on the restaurant manager following the occasion on 7 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."

23. In paragraph 16 the inspector dealt with the terms of the time restriction. In paragraph 17 he said that from his observations the pontoon could accommodate around 50 seated customers and that he realised that this was more than the 30 or 40 covers mentioned in the previous appeal. He considered that it would not be reasonable to impose a condition limiting the number of customers. At paragraph 22 he set out his conclusions:

"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."

24. Ms Kabir Sheikh submitted that, in stating that Mr Rahman's advent as operator of the restaurant was a "highly material change of circumstances" and treating as determinative of the appeal what he was prepared to accept by way of condition, the inspector was taking into account an irrelevant consideration. What the inspector should have done, since the permission was not personal to Mr Rahman, was to consider the acceptability of the use itself and, if it gave rise to harm, whether it could be made acceptable by condition regardless of who the operator might be.
25. Ms Kabir Sheikh went on to contend that the inspector failed to give reasons (other than the advent of Mr Rahman) for rejecting the council's central contentions, that conditions were not capable of preventing the harm arising from the use. He failed to make any clear findings as to whether and what harm arose from use of the position as a restaurant, and he did not deal with the contention that experience had demonstrated that similar conditions had been tried and had failed to control the detriment to the amenities of local residents. Having decided that conditions requiring the windows in the main restaurant to be closed were not appropriate, he did not explain how the harm arising from music being played inside the restaurant for the benefit of customers on the pontoon was to be overcome. His reference in paragraph 22 to the use of the pontoon being dependent on the uncertainties of the weather was obscure and probably perverse since it was during good weather when the local residents, wishing to enjoy their outdoor areas or open windows, would be disturbed.
26. Ms Kabir Sheikh said that the inspector had failed to explain why it was that he came to a different conclusion from the 2005 inspector. He failed to say whether or not he agreed with her findings of harm or why he considered that planning permission should be granted in spite of those findings. He failed also to explain why he considered that Mr Rahman would be able to ensure compliance with the hours condition by persuading customers to leave the pontoon by 9.30 pm. In addition, Ms Kabir Sheikh submitted that the conditions imposed by the inspector limiting the hours of use of the pontoon were ambiguous and would present problems of enforcement.
27. For the Secretary of State Mr Mark Beard submitted that, when the decision was read as a whole it was clear that the inspector had come to a different conclusion from the 2005 inspector because of material changes in circumstances that he had identified. These were the fact that the appellant was now willing to accept a limited hours condition and that there was now an operator who considered it possible to operate subject to it; and the fact that complaints were now known to have been essentially about the playing of loud music, which could be controlled by condition. It was not the personality of Mr Rahman that the inspector had treated as material but the fact that he was prepared to operate under a limited hours condition. It was clear from the totality of his decision letter why it was that he had come to a different conclusion from the 2005 inspector on what were matters of planning judgment. There was nothing perverse in his conclusion on the efficacy of the conditions that he imposed; nor were the two conditions complained of impossible to enforce.
28. Both counsel referred to North Wiltshire District Council v Secretary of State for the Environment (1993) 65 P & CR 137 and to the judgment of Mann LJ (with whom Purchas LJ and Sir Michael Kerr agreed) at 145, where he said:

"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."

29. The day before the hearing in this case the Court of Appeal had decided an appeal in a case called Dunster Properties Ltd v First Secretary of State [2007] EWCA Civ 236. A summarised extract of this decision was available from which it appeared that the appeal had been allowed and an inspector's decision quashed on the grounds that the inspector had failed to give reasons why he disagreed with the previous inspector's decision relating to the same property. Since it was possible that the Court of Appeal's decision might contain statements of principle that were material to the present appeal I agreed to allow the parties to make submissions in writing on it after the transcript of the judgments became available. I have received written submissions on behalf of all three parties. In the event it does not seem to me to be necessary to say more about Dunster Properties than that it represents the application to the facts in that case of the principles relating to the giving of reasons that are contained in Save Britain's Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153, South Buckinghamshire District Council v Porter (No.2) [2004] 1 WLR 1953 and North Wiltshire. I note, however that Lloyd LJ, who gave the substantive judgment and quoted the passage from Mann LJ's judgment, also referred to Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377, and said this:

"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."

30. In relation to the present challenge it is right, in my judgment, to bear in mind the background against which the inspector's decision came to be given. The use of the pontoon as an extension of the restaurant has been continuing on and off since 1998 or 1999. In June 2003 the council had granted planning permission for use of the pontoon for a trial six-month period with a requirement that the restaurant use should cease by 9 pm each evening. No attempt was made during that period to comply with the condition. Following the refusal of planning permission in August 2004, the second defendant appealed, and its appeal was dismissed in June 2005 by the 2005 inspector who concluded that, on the evidence of the experience of the use during the trial period, she was not satisfied that it could be satisfactorily controlled so as not to cause nuisance at night to local residents. On the basis of that decision the council in August 2005 served the enforcement notice. The second defendant resisted the enforcement notice on the grounds that, despite the recent appeal decision, permission ought to be granted. In these circumstances, in my judgment, it was clearly necessary for the inspector, if he was going to grant permission, to make clear if and where he disagreed the conclusions of the 2005 inspector and why. That was necessary so that the reader might know why the appeal was decided as it was and what conclusions were reached on the principal important controversial issues (per Lord Brown of Eaton-under-Heywood in South Bucks v Porter at para 36); so that the inspector should show that he was alive to the importance of consistency and how, with this in mind, he had reached his decision (per Mann LJ in North Wilts); and to make it likely that the decision was soundly based (per Lloyd LJ in Dunster Properties).
31. I do not think that Ms Kabir Sheikh was right in her contention that the inspector determined that the use was acceptable and should be permitted because it would be carried on by Mr Rahman. While the reference to Mr Rahman's restaurant in Cowley Road having achieved considerable acclaim is unexplained in terms of its relevance, the advent of Mr Rahman was evidently treated as material in two respects. Firstly it removed the inhibition to imposing an hours condition, because he was agreeable to one being imposed; and, secondly, as an experienced restaurateur he was of the opinion that such a condition, limiting customer use to 9.30 pm, was workable. The inspector was entitled to take both these matters into account. I do not read the inspector's conclusions as saying that the use should be permitted because it would be carried on by Mr Rahman.
32. In giving his reasons the inspector did not address the conclusions of the 2005 inspector directly. Why he did not do so appears from paragraph 10. He said there had been "highly material changes in circumstances" especially in relation to an hours of use condition. Those changes were that, whereas in 2005 the appellant had opposed any such a condition, there was now a new operator who said that he would accept one. What made that a "highly material" change, it appears, was that the inspector thought that the 2005 inspector had rejected an hours condition for the sole reason that it would be unreasonable to impose it since it was not what the appellant was then seeking. On this basis, it seems, he thought it became unnecessary for him to address the 2005 inspector's concerns, since these concerns were now met by the imposing new-found feasibility of the condition that had not been possible a year earlier.
33. I do not think that in this respect the inspector properly understood the 2005 inspector's reasoning as set out in paragraph 11 of her decision. She was not rejecting an hours condition as the solution to the problems on the sole ground that it would not be reasonable to impose one. That was an "In any event" reason: see the last sentence of the paragraph. Her principal reason was that, since the condition in the temporary permission had not been complied with, an hours restriction had not been tested and so she could not be satisfied that it would overcome the problems that had been encountered. It was this that, expressed in effectively the same terms in the second sentence of paragraph 12, constituted her conclusion on the appeal. Inescapably, in my view, the inspector needed to make clear why it was that he disagreed with it.
34. The fact that the inspector, having said what he did in paragraph 10, did not go on to address the 2005 inspector's reasons and to say expressly to what extent he disagreed with them and why would not, however, be sufficient to require that the decision be quashed if his reasons for reaching a different conclusion from the 2005 inspector are otherwise clear. The 2005 inspector dismissed the appeal because she did not think that the use of the pontoon could be satisfactorily controlled so as not to cause nuisance at night to local residents. In my judgment the inspector in the decision under challenge did make sufficiently clear that he disagreed with this view and why he did so.
35. In paragraph 11 the inspector dealt with enforceability, and he concluded that an hours condition would be enforceable. In paragraph 12 he described his site visits, and what he heard and saw. This included, on the only one of the four visits when the pontoon was in use, the fact that voices carried across the river on a still evening, but not to any significant extent. In paragraph 13 he considered the noise complaints and he noted that there were two complaints about noise when the pontoon was in use, both concerned with loud music. On one occasion music was being played on the pontoon, on the other within the building. He referred to the noise level that had been measured from the opposite side of the river of talking and laughing on the pontoon.
36. In paragraph 14 he said that the complaints had been essentially about loud music, and that the position was different from that before the 2005 inspector in terms of the appellant's views the type of noise condition that might be imposed. In paragraphs 15 to 19 the inspector then discussed the conditions that might be effective to control noise and disturbance. His conclusion is contained in paragraph 22. After saying that the basis on which the permission sought differed from the earlier application in terms of the intended hours of operation and reiterating that it was well apparent that the fundamental source of complaint had been loud music, he said:

"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."

37. Reviewing the decision in this way, it seems to me to be sufficiently clear why it was that the inspector concluded as he did and why he did not agree with the conclusion formed by the 1995 inspector. Taking into account all the matters that he had mentioned he had come to the conclusion that any harm to local residents could be sufficiently overcome through the imposition of conditions. That was a matter of planning judgment. It is evident that he did not consider (as the 2005 inspector had done) that such a judgment could only be reached if the use had been the subject of a trial, with an hours condition being complied with over the period of the trial, and it was not necessary that he should have said this expressly.
38. I do not think that the criticisms levelled by Ms Kabir Sheikh at particular elements of his conclusions are sufficient to establish in any respect perversity or a failure to give reasons. The inspector clearly took into account the number of customers that might be served and the measurement of the noise of talking and laughing that had been measured. He relied on his own observations, as he was entitled to, and the fact that during inclement weather there was no noise from the pontoon because there were no customers there was, though obvious, not manifestly irrelevant. He was aware that one of the complaints had been about loud music played within the restaurant for the benefit of diners on the pontoon, and there is nothing to suggest that he did not take this into account in reaching his views on acceptability and on the conditions.
39. Finally I am unable to accept Ms Kabir Sheikh's contentions that conditions (b) and (c) in the inspector's grant of permission are ambiguous and unenforceable. The conditions provide:

"(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."

40. Ms Kabir Sheikh said that since any prosecution for breach of condition would have to satisfy the criminal standard of proof it would be unlikely that a prosecution for breach on condition (b) could succeed because it would not be possible to prove that persons on the pontoon outside the permitted hours were customers. I do not think that this is the case. It would clearly be open to a court to make an inference that the persons were customers provided that this was an inference that could reasonably be drawn on the facts. Similarly I do not think that condition (c) would present such problems of enforcement as to make its imposition unlawful.
41. The application is refused.

THE DEPUTY JUDGE: For the reasons set out in the judgment which I now hand down, the application is refused.

Yes Mr Neill.

MR NEILL: My Lord, Miss Sheikh sends her apologies for not being present today. My Lord, there are two or three matters which I require to address you on. The first matter is the application that the second defendant has appeared to have submitted. We have sent up a copy to you, my Lord. Can I just check whether you have that.

THE DEPUTY JUDGE: The costs application?

MR NEILL: Indeed.

THE DEPUTY JUDGE: Yes, I have got that. It is three pages long. I have just been handed it. I have not read it so far.

MR NEILL: My Lord, if I could refer you to that document. Although it does appear to be a costs application, I should draw your attention to the first application in there, which is effectively on page 2 of the document. The second defendant is asking the court to issue an order that the claimant send the judgment to all third parties who express an interest in the case. My Lord, on that I submit that that is not a reasonable order for you to make in these circumstances.

THE DEPUTY JUDGE: There is no need to do it. Judgment has been given, it is public and it will be available in the usual way.

MR NEILL: Indeed, my Lord. In that case I need not bother you any further.

THE DEPUTY JUDGE: Thank you, yes, I can refuse that order particular order that is sought.

MR NEILL: I am grateful.

My Lord, the second application that the second defendant makes is for costs. My Lord, I am sure you need no reminding of the judgment of the House of Lords in the Bolton case, and that effectively established that in circumstances such as these costs are only awarded — only one set of costs are usually awarded unless there are exceptional cases. My Lord, in this case there appear to be no exceptional reasons why an extra set of costs should be awarded against the claimant to the second defendant.

THE DEPUTY JUDGE: Mr Neill I am just reading the costs application. (Pause) I can see no justification for a second set of costs in this case.

MR NEILL: If that is the case, my Lord, I am grateful. There only really remains the issue of permission to appeal. My Lord, my instructions are to formally ask you for permission to appeal. The ground for that would be that, given the very recent decision of Dunster and the fact that Dunster does seem to raise some doubts as to the extent of the duty to have regard to previous decisions, it talks of the need to grasp the intellectual nettle and it is not clear particularly what this means, in particular whether being mistaken as to the previous decision of an inspector can constitute a failure to have regard to it. My Lord, in these circumstances, it would seem to be a compelling reason to grant permission to appeal.

THE DEPUTY JUDGE: Mr Neill, I am not going to grant permission to appeal. This is a decision which essentially has turned on the particular nature of the reasons that were given in the inspector's report. I have had regard to Dunster and had the assistance of submissions on that, and I can see no reason for thinking that there would be reasonable prospects of success on appeal.

MR NEILL: My Lord, I have no further submissions.

MR BEARD: My Lord, there is an application for costs in the usual way, for the claimant to pay the first defendant's costs in the agreed sum to be summarily assessed of £10,000 all included.

THE DEPUTY JUDGE: Is that agreed?

MR NEILL: That is agreed.

THE DEPUTY JUDGE: I make an order in those terms.

MR BEARD: My Lord. (Pause)

THE DEPUTY JUDGE: Thank you both.