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OUTER HOUSE, COURT OF SESSION
[2008] CSOH 114
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XA22/07
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OPINION OF LORD HODGE
in Appeal Under
sections 237 and 239 of the Town and Country Planning (Scotland)
Act 1997
by
KARTAR SINGH
BARHAYA
Appellant;
against a decision
of a reporter in the Scottish
Executive Development Department Inquiry Reporters Unit
ญญญญญญญญญญญญญญญญญ________________
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Appellant: Party
Respondent: Hawkes, Advocate; M
Sinclair, The Scottish Ministers
12 August 2008
[1] This
is an appeal under section 239 of the Town and Country Planning (Scotland) Act 1997 ("the 1997 Act")
against a decision by Mr R. F. Loughridge, a reporter in the Scottish
Executive Development Department Inquiry Reporters Unit, dated 9 January 2007. In that decision the reporter refused the
appeal of Mr Barhaya against the refusal of planning permission by Glasgow
City Council ("the Council") for the development of shop premises at 406 Cumbernauld Road, Glasgow, for use as a hot food
takeaway with a charcoal filter extraction system.
Background
[2] The
appellant is the owner of the appeal premises which are a disused shop on the
ground floor of a four-floor tenemental building close to the corner of Cumbernauld Road and Aberfeldy Street, Glasgow. In 2003 and 2004 the appellant made
several applications to the Council to change the use of the shop. The first application, to change the use to a
hot food takeaway and to erect an external flue, was refused on 14 January 2004. The second application, to use the shop as a
cafeteria and to erect an external flue, was granted on 8 June 2004. The appellant made a further application to
change the use of the shop to a hot food takeaway and to erect an external
flue, which the Council granted on 21 September 2004. Both permissions contained a condition that
all cooking smells, noxious fumes or vapours from the premises were to be
disposed of by means of a suitable duct carried up the rear wall and
terminating at a point one metre above eaves level.
[3] The
appellant was not able to implement either of the permissions as he could not
fulfil this condition. Neighbouring
proprietors in flats above the shop opposed the proposed development and would
not permit him to erect the flue against the walls of their properties. As a result of this exercise by his
neighbours of their property rights the appellant needed a further planning
permission to change the means by which he could dispose of smells, fumes and
vapours.
[4] Accordingly
in December 2004 the appellant applied for a change of use of the shop as
a hot food takeaway and for the installation of a charcoal filter extract
system. In his application form the
appellant applied for full planning permission and described the proposed
development as "charcoal filter extract system (hot food shop)". In a letter dated 21 December 2004 in response to the
application a planning official of the Council wrote to the appellant
describing the proposal as "use of shop as hot food take[away] shop and
installation of charcoal filter extract system". He invited the appellant to contact the case
officer if he was unhappy with the legal address or the application
description.
[5] In
their consultation response to the application dated 6 January 2005
and in a memorandum dated 2 March 2005 the Environmental Protection
Services Department of the Council opposed the application and expressed the
view that the population density of the tenement property where the premises
were located made the carbon filter extraction system at ground level
unsuitable. They reiterated their view
that external ducting terminating at a high level was the only acceptable
method of dispersing cooking odours from food shops within tenement properties.
But the appellant's prospects of obtaining planning permission improved in
September 2005 when the Council decided to embark on a pilot project to
allow owners of hot food takeaway premises temporary planning permission to
operate carbon filter extraction systems in their premises instead of flues at
four sites in tenements where there were flats above the commercial
premises. The experiment was a departure
from the Council's normal practice at the behest of their Environmental
Protection Services Department to require a duct to be erected to one metre
above eaves level. The appellant proposed
that two of his premises, one of which was 406 Cumbernauld Road, should be included in the
pilot project.
[6] The
application for 406 Cumbernauld Road attracted local
objections. The Environmental Protection
Services Department also objected to the application and suggested that the
premises should not be used as one of the pilot sites. But the application was supported by the Council's
planning official responsible for processing it. In a report dated 5 December 2005 to the Council's
Development and Regeneration (Development Applications) Sub Committee ("the
sub-committee") the planning official recommended the grant of a temporary
planning permission for one year to allow the effectiveness of the
ventilation and extraction system to be assessed. In the report the official described the
location of the premises in the following terms: "These premises are located at
the right angled corner of the 4-storey tenemental blocks and the configuration
represents a challenging one for the dispersal of cooking odours". This was a reference to the proposed location
of the extraction system in the rear window of the ground floor premises which
faced a small communal back court which residents of the flats used for drying
clothes, storage of refuse or other outdoor activity. Within a few feet of the window in question
and closing off the back court was the rear wall of the flats on the corner of Abernethy Street. The back court was thus bounded on two sides
by the tenement and was on the inner edge of the right-angled corner. The planning official was aware of the
proposed location of the extraction system and stated: "the purpose of the
pilot is to test the effectiveness of modern filtration systems located at low
level and in many ways this is an ideal location to assess this."
[7] The
objectors did not agree; they maintained
their objections at the sub-committee meeting on 20 December 2005. Nor did the councillors who visited the site
and at the sub-committee meeting decided to refuse the application. The reasons for refusal were:
"(1) By reason of the low
level discharge point and the configuration of the back court the proposal is
likely to result in disamenity to residents as a result of the failure to
adequately disperse cooking odours. (2) By reason of the failure to provide an
adequate means of dispersal of cooking odours, the proposal is considered
contrary to the residential policy designation in the adopted city plan."
The appellant appealed to the Scottish Ministers
against this decision under section 47 of the 1997 Act.
The relevant planning
policies
[8] There
were two policies in the local plan, the Glasgow City Plan, which were relevant
to the application, namely policy DEV2 (Residential Land Use Policy) and
policy SC9 (Food and Drink). The relevant
passage in the former policy was:
"The areas designated
"RESIDENTIAL" are the City's housing districts.
In addition to housing, they include facilities such as schools, local
shops, public buildings, small businesses, light industry, local community,
health, social and recreational facilities and local green spaces. In considering development proposals, the
Council will seek to preserve and enhance residential amenity, particularly in
respect of townscape, landscape and green space provision ..."
Policy SC9 provided that permission would not be
granted for change of use of premises in a street block which also included
residential property to a hot food shop or public house if the proportion of
ground floor units operating those uses, or with an unimplemented permission,
already amounted to or exceeded twenty per cent of the total number of
commercial units or would, with the addition of the proposal, exceed that
proportion. There were exceptions to
this criterion which are not material.
The policy was supported by a technical policy on the treatment and dispersal
of cooking odours and fumes which stated that applications for permission for
food and drink use would be considered favourably only if suitable arrangements
for the dispersal of cooking and heating fumes could be provided to the
complete satisfaction of the Council.
The technical policy envisaged the use of externally mounted flues but
did not stipulate that those were the only extraction arrangement which the
Council would consider.
The appeal and the
reporter's decision
[9] In his
appeal to the Scottish Ministers the appellant submitted that as the building
already had permission for use as a hot food takeaway, the proportion of shop
units used as takeaways was not a material consideration. Low-level carbon filtration systems had been
used successfully in other premises in Glasgow and elsewhere. His neighbours' concerns in relation to
amenity were not supported by any scientific or other hard evidence. He had obtained technical advice from Iona Ventilation
Company Limited detailing the requirements of the system for his premises and
could maintain the equipment as required.
He submitted that it was speculative to suggest that the business
venture would be barely viable and that, as a result, there was a risk of
inadequate maintenance of the equipment.
At the hearing of the appeal the appellant raised an argument that there
was no need for planning permission as only internal alterations were involved
and as there was already permission for a change of use. He also sought to refer to comparable
properties of which he had not given due notice.
[10] The
reporter in his decision letter rejected the argument that planning permission
was not required, pointing out that the application raised the principle of the
proposed change of use and that the Council had decided the application on
that basis. In dealing with the merits
of the appeal, the reporter in substance accepted the submission that policy SC9
was not relevant in the context of a controlled experiment with carbon filter
extraction systems in takeaway premises.
But he observed that the appeal premises were a very tight site at which
to undertake a pilot project and concluded that the appellant had not
adequately addressed the implications of the development for residents above
his premises. He accepted as
well-founded the Council's concerns about future maintenance and operation of
the filter system. In those
circumstances he concluded that there was a significant risk of adverse effect
on residents from the escape of odours in view of the tight configuration of
the back court area into which air from the premises would be vented. The proposal did not accord with policy DEV2
for that reason and there were no material considerations to justify an
exceptional approval. He therefore
refused planning permission. His
decision thus turned on the issue of residential amenity and the adequacy of
the case which the appellant had presented in relation to possible adverse
environmental effects.
The scope of an appeal under
section 239 of the 1997 Act
[11] Mr
Hawkes on behalf of the respondents referred me to sections 237 and 239
of the 1997 Act and to several authorities on the scope of an appeal under
section 239(1)(b) of that Act. The
court can intervene under those provisions only if the action is not within the
powers of the 1997 Act or if there has been a failure to comply with
some relevant requirement. Matters of
planning judgement are not for the court but are the responsibility of those to
whom Parliament has given the power to make planning decisions.
[12] It is
sufficient in this regard to refer to the well-known dictum of the Lord President
(Emslie) in Wordie Property Co Ltd v Secretary of State for Scotland 1984
SLT 345 at pp.347-348:
"A decision of the Secretary
of State acting within his statutory remit is ultra vires if he has improperly exercised the discretion confided
in him. In particular it will be ultra vires if it is based upon a
material error of law going to the root of the question for determination. It will be ultra vires, too, if the Secretary of State has taken into account
irrelevant considerations or has failed to take account of relevant and
material considerations which ought to have been taken into account. Similarly it will fall to be quashed on that
ground if, where it is one for which a factual basis is required, there is no
proper basis in fact to support it. It
will also fall to be quashed if it, or any condition imposed in relation to a
grant of planning permission, is so unreasonable that no reasonable Secretary
of State could have reached or imposed it".
The appeal to this court and
decision
[13] In his
appeal to this court the appellant raised a number of points which so far as
relevant can be summarised as follows. First, he argued that any objections to
the principle of the use of the premises as a hot food takeaway were beyond the
scope of the section 47 appeal.
Secondly, he submitted that there was no need for planning permission
for the installation of the charcoal filter extraction system as it was merely
an internal alteration. Thirdly, he
argued that he should not have been required to present his appeal at a hearing
when he had wished to proceed by written submissions. Fourthly, he submitted that the Council had
already taken into account residential amenity when they granted permission to
change the use of the premises to a hot food takeaway and that the amount of
cooking which was proposed on the premises was not significant. Fifthly, he argued that the Council had acted
irrationally as certain councillors and officials had promoted the site as one
of the locations for the pilot project but the Council had then refused to give
it planning permission. Finally, he
submitted that the reporter had no technical or mechanical expertise or expert
evidence before him which allowed him to conclude that the filtration system
would not be effective if it were not maintained. I deal with each of these submissions in
turn.
[14] I am
satisfied that there is no substance in the argument that the principle of the
use of the premises was beyond the scope of the appeal. During the appellant's submissions I was at
first puzzled why the appellant had submitted an application for full planning
permission rather than an application under section 42 of the 1997 Act
to develop the site without compliance with a planning condition which had
previously been attached. But as the
circumstances of the pilot project were explained it became clear that it was
necessary for the appellant to lodge a full planning application as he was
seeking a temporary permission for one year only. A section 42 application was not
appropriate for that purpose as the appellant may not have wished to convert a
permanent permission into a temporary permission. In addition the Council were entitled to
characterise the planning application in the way they did: Cumming v Secretary of State
for Scotland 1992 SC 463, at 472 and Taylor v The Scottish
Ministers 2005 SC 92.
As a result the principle of the use of the premises was formally an
issue in the application. Nonetheless,
as mentioned in paragraph 11 above, the reporter did not attach any weight
to a conflict with policy SC9 because the application was part of the
pilot project. Accordingly the
objectors' challenges to the principle of the use of the premises did not form
part of the grounds of the reporter's decision to refuse planning permission.
[15] I am
also satisfied that the proposed installation of the filtration system for use
in hot food takeaway premises was development which required planning
permission. The existing permission for
use as a hot food takeaway contained the condition, which the appellant could
not implement, of erecting the external duct terminating one metre above the
eaves. Without such an external duct
there was no permission to use the premises as a hot food takeaway. In particular there was no permission to use
the premises for such a purpose with an internal extraction system at ground
floor level. Such a system gave rise to
environmental questions which were the subject of the pilot project. The reporter was entitled to treat the
installation of that system as a material change of use. Furthermore the application having been
interpreted as one seeking permission for change of use to a hot food takeway
with a carbon filtration system (see paragraph 4 above) the proposal so
characterised involved development.
[16] Thirdly,
the appellant had no legal right to insist that his appeal should take the form
of written submissions. Section 48(2)
of the 1997 Act provides that in relation to an appeal under section 47,
"before determining the
appeal the Secretary of State shall, if either the appellant or the planning
authority so wish, give each of them an opportunity of appearing before and
being heard by a person appointed by the Secretary of State for the purpose".
The Council wished to have a public hearing. Accordingly the Scottish Ministers were bound
to conduct the appeal either by holding an informal hearing or a local public
inquiry. In support of his submission
the appellant referred to guidance issued by the Scottish Office Development
Department Inquiry Reporters Unit entitled "Planning Appeals in Scotland", in
which it is stated with reference to informal hearings that "[t]his procedure
would only be followed if both you and the planning authority were
agreeable". While I recognize the force
of the appellant's point that this suggests that an appellant cannot be forced
to have an informal hearing, it is significant that the alternative would be a
local public inquiry. In discussion the
appellant confirmed that he was not challenging any decision to give him a
hearing rather than a local public inquiry.
He did not want a public inquiry.
His complaint was that the appeal had not been by written
submissions. As he had no right to such
an appeal, there is no substance in this ground.
[17] Fourthly,
I am satisfied that the Council and the reporter were not only entitled but
under a duty to consider the environmental consequences of the use of the
premises as a hot food takeaway with a charcoal filter extraction system in the
ground floor as that system might have significantly different environmental
effects from the use of a duct to roof level.
The question of the impact of the cooking within the premises compared
with that of domestic cooking by the neighbouring residents is a matter of
planning judgement with which this court does not intervene.
[18] Fifthly,
it appears that the planning officials who were promoting the pilot project
were prepared to support the application precisely because the back yard into
which the extraction system would vent was a challenging site and that it would
test the efficacy of the system. The
planning official who wrote the report for the sub-committee drew attention to
this as a reason for granting the temporary permission. See paragraph 6 above. The appellant submitted that several
councillors had expressed similar views in discussions when he was choosing sites
to take part in the pilot project. The
reporter in paragraph 14 of his decision letter recognized the appellant's
sense of frustration arising from the Council's willingness to embark on
the pilot project and the eventual refusal of his application by the sub- committee. I also recognize that frustration. But it is a risk of a democratic planning
system that planning officials may in good faith support a proposal and
recommend that it be granted permission and individual councillors may also
express support yet the councillors who make up the committee which is charged
with deciding the application may take a different view. In this case I see no basis upon which the
reporter could have overturned the sub-committee's decision because of the
expression of views by the planning officials or the councillors who supported
the application.
[19] Sixthly,
I detect no error by the reporter in his treatment of the risk of adverse
environmental impact. He was entitled to
take account of the constrained environment of the back yard which would be
likely to concentrate any smells in a confined area. He did not purport to be an expert on
filtration systems. But he took account,
in paragraph 17 of his decision letter, of the qualification in the
technical assessment from Iona Ventilation Company Limited that should the
system be operated using poorly maintained or missing filters at any of the
positions it identified, the effective operational life of the carbon filter
could be reduced to a few hours and the system fan could fail because of
increased static pressure loss. As the
appellant had not presented a professional endorsement of the precise proposals
for the system in the premises including a proper maintenance plan, the
reporter concluded that there was a risk of an adverse effect on the local
residential environment. In so
concluding he also referred to the Council's unsatisfactory experience with
other premises at 298 Allison Street. I do not detect any error of law or
irrationality in the reporter's approach in the context of what he described as
"the very tight configuration of the back court area".
[20] In the
course of his submissions the appellant raised certain other matters such as
(a) the absence of Indian councillors as members of the Council which he
suggested gave rise to decisions favouring applicants of other nationalities or
ethnic groups and (b) the difficulties which he considered he faced in
obtaining justice from the Reporters' Unit as he had complained about a
decision in the past. I am satisfied
that there is no basis on which I can deal with such allegations in the context
of a section 239 appeal but record them for completeness. The appellant also criticised the reporter
for not considering a number of premises of which the appellant had not given
due notice. But I am satisfied that the
reporter was acting within his powers in declining to attach significant weight
to factual material of which the Council had not been given fair notice. See paragraph 12 of his decision letter.
Conclusion
[21] As I am
persuaded that no relevant ground of challenge of the reporter's decision has
been made out and that the reporter acted within his powers under the 1997 Act,
I sustain the third plea in law for the respondents and refuse the appeal.
