Akhtar, R (on the application of) v First Secretary of State & Anor

MR JUSTICE SULLIVAN: This is an application under section 288 of the Town and Country Planning Act ("the 1990 Act") to quash a decision of an Inspector appointed by the first defendant, dismissing an appeal by the claimant against a refusal of planning permission by the second defendant. The application was for retrospective permission for use of the ground floor and basement at 47 Rupert Street in Soho as a radio controlled private hire operator.

The premises had been used as a mini-cab office for a number of years, and indeed is still so used. From 1994 to 1997 temporary and personal planning permissions had been granted for such use but in 1998 an extension of the temporary permission was refused and a subsequent appeal against an enforcement notice was dismissed. The then operator was prosecuted for failure to comply with the enforcement notice on 13 August 2001.

The claimant's association with the premises began some time in mid-2001 and she made the application for retrospective planning permission, which is the subject of these proceedings, on 20 August 2001. The Inspector's decision-letter refers to the application as being dated 7 September 2001 and to it being refused by the second defendant on 17 December 2002.

The second defendant refused planning permission on two grounds; namely, the impact of the development on highway safety and upon residential amenity. The claimant appealed against that refusal but, after an informal hearing, her appeal was dismissed by an Inspector in a decision-letter dated 2 April 2004. The claimant applied to the High Court to quash that decision and by consent the decision was quashed. So the matter had to be reheard, and this was done by way of an informal hearing on 25 February 2005.

The claimant's grounds of appeal were set out in fairly general terms. It was contended that the premises had been used as minicab offices for over eight years without complaint and that they provided an essential service in this part of Central London where late night uses were numerous. It was further contended that the reasons given by the second defendant were not sustainable on closer examination and that neither pedestrian nor vehicular traffic to the premises caused any problems.

The grounds of appeal said that the second defendant had failed to consider what conditions could be imposed that would have made a grant of permission possible.

In its written response, the second defendant set out the history of the use of the site and the relevant development and policies and made these, among other, points:

The Council then went on in its representation to note that the appellant was not the same person as the individual who had previously been prosecuted for failure to comply with the enforcement notice. So the Council monitored the site to see whether it was simply being used as a control office only, or whether it was being used in the same or a similar manner to the previous unauthorised minicab use. Observations were made, and the Council made the point that although there were parking restrictions outside the site the minicabs would park outside illegally, and on the approach of a parking attendant or the police, the minicab drivers would drive round the block and return a few minutes later when the parking attendants or police had gone. The Council said that this type of behaviour was

The Inspector made a site visit on the day of the informal hearing. She also took the precaution of making an unaccompanied visit to the premises late on a Friday night. It is clear that what she saw on that unaccompanied site visit was fatal to the claimant's case as it had been presented at the informal hearing.

The inspector's decision-letter identified two main issues. The first was the effect of the proposal on highway safety, and the second was the implications of the proposal for neighbours' living conditions with regard to noise and disturbance. Paragraphs 3 and 4 of the decision-letter identified the relevant planning policies. They included policy SS14 (subsequently renumbered SS12), in the Unitary Development Plan, which provides:

The Inspector dealt with the first issue, highway safety, in paragraphs 6 to 10. Paragraph 6 described Rupert Street and the highway conditions therein. In paragraph 7 the Inspector said that from what she had seen and heard she had no doubt that there was

Originally there were five grounds of appeal. The claimant's skeleton argument made it clear that the first ground would not be pursued. The second ground contended in summary that the Inspector had failed to consider the claimant's argument that refusal of planning permission would have no effect on the level of demand for taxis in the area, and hence no effect on the amount of traffic which would be drawn to the area in order to meet that demand. In his submissions on behalf of the claimant Mr Buley explained that ground 2 was not being pursued as a separate ground of appeal; rather, the conditions in Soho, as described by the Inspector, were to be regarded as the background to the other three grounds of challenge.

In my judgment, it is clear from the passages in paragraphs 5, 12 and 16 of the decision-letter (above) that in determining the appeal the Inspector was well aware of the fact that there was a general demand for taxis and minicabs in the Soho area. Her conclusions in respect of the two main issues focused therefore upon whether a minicab office, subject to conditions, was or was not acceptable in Rupert Street.

Mr Buley accepted that although the claimant had contended that continuing the use had not caused any problems in respect of highway safety or neighbours' living conditions, the Inspector had been entitled to take a different view on those two matters in respect of an unconditional grant of planning permission for the proposed use. Grounds 3 to 5 contended that the Inspector had erred in law in her approach to the question whether conditions could be imposed on any grant of planning permission so as to mitigate the harmful effects on highway safety and neighbours' living conditions of an unconditional grant of permission.

One of the conditions suggested by the appellant was:

Against this background I turn to the remaining three grounds of appeal.

It is clear that the claimant's suggestion that parking in Rupert Street by minicabs associated with the business could be restricted by condition was considered by the Inspector (see paragraph 9 of her decision-letter above). Mr Buley submits that her consideration was inadequate because she failed to consider and/or to apply relevant guidance as set out in paragraph 27 of the Annex to Circular 11/1995. Before turning to paragraph 27, it is helpful to recall the general advice in paragraph 4 of the Circular:

Paragraphs 26 and 27 in Annex A deal with the issue of the ability to enforce conditions. Paragraph 26 makes the general point that a condition should not be imposed if it cannot be enforced, and states that it is often useful to consider what means are available to secure compliance with a proposed condition. Paragraph 27 is in these terms:

Mr Buley submits that the Inspector failed to explain why she considered that the local planning authority would have to rely either on residents or on CCTV footage to provide evidence of any breach. That was to assume that the ordinary method of enforcement by way of Council enforcement officers would not be effective. Moreover, the Inspector had simply asked herself whether there be difficulties in enforcing any conditions, and the correct test as postulated in paragraph 27 was that one should only refuse to impose a condition on enforceability grounds where it would be either "impossible" to detect a breach or there would be "serious difficulties" in proving a breach. That was not found to be the case here.

The Inspector clearly had Circular 11/95 well in mind when framing her decision-letter (see paragraph 15 above). As required by the Circular, she considered the extent to which there would be an ability to enforce the suggested conditions. In my judgment, Mr Buley's submissions seek to elevate mere examples given in the Circular into hard-edged legal tests. That is not appropriate.

In the example given, namely a condition requiring an amusement centre to close at a certain time in the evening, it is readily understandable why it would not be too difficult to monitor such a condition. However, it does not follow that any condition which is intended to prevent harm to amenities is readily capable of being monitored by those who are most affected. Whether local residents would or would not find a particular condition suggested for their benefit easy to monitor, will be very much a question of judgment and common sense for the Inspector. Common sense suggests that the Inspector was perfectly entitled to be concerned about the enforceability of the particular condition suggested in this case. It is one thing to be able to state whether or not premises are or are not closed at, say, 11.00; it is quite another thing to identify which parked cars in a street in the early hours of the morning where there is "flagrant disregard of traffic regulations" are or are not connected with a particular premises. As a matter of common sense, one can see that investigating such a matter in the early hours in the presence of those who, as the Inspector put it, will "have had a night out and... are unlikely to be quiet and restrained" would present practical difficulties. The Council had explained in its witness statement the practical difficulties of enforcement and the Inspector was entitled to doubt the ability and/or the inclination of residents to monitor this particular condition in Soho. Were the residents to be supplied with lists of the registration numbers of the cars and the drivers that were associated with the business? Might they wish to get involved in trying to identify which particular vehicle or vehicles were engaged in "flagrant disregard of traffic regulations" in the early hours of the morning? One can well imagine that drivers of such vehicles might be less than friendly towards those who attempted to photograph their registration numbers and/or to write them down. The same would of course apply to enforcement officers who were seeking to note down numbers; although Mr Buley made the point that they would not be uniformed, unlike the Council's own parking attendants, one can well imagine there would be scope for endless argument as to whether a particular vehicle had or had not been parked, as opposed to simply being stopped in the flow of traffic, whether the vehicle was still associated with the business because the car and/or the driver had changed, etc. This is precisely the kind of condition which on any common sense view would be extremely difficult to enforce in the absence of constant monitoring. In the real word enforcement officers are not available to constantly monitor each and every breach at each and every premises 24 hours a day. What matters is not whether the Inspector mentioned a particular paragraph in Annex A to the Circular, but whether she addressed the practical issue raised in the paragraph. How easy or difficult would it be to prove a breach of this particular condition? Since in the real world a local planning authority's enforcement officers cannot be everywhere at all times, would the residents be able to provide clear evidence of breaches? Having considered those issues the Inspector was entitled to have "serious doubts" about the enforceability of the suggested condition. It was of course for the Inspector to decide whether or not in practical terms the condition would be enforceable. It is not for the court to decide enforceability in practical (as opposed to legal) terms. I would merely say that, far from appearing to be unreasonable, the inspector's conclusion in this respect would appear to be eminently sensible. Indeed it would have been surprising had she reached any other conclusion about the practicality of enforcing such a condition as this in Soho.

The complaint under ground 4 was directed to the manner in which the Inspector addressed the suggested condition that the use of the premises should be limited in effect to a radio control centre only. The submission was made that if such a condition was complied with then it would prevent any congestion caused by clients coming to the premises. The condition would not of course prevent the drivers from coming to the premises, hence the further condition which was suggested on behalf of the claimant, namely a condition forbidding drivers from congregating from outside the premises.

The Inspector had found in paragraph 10 of her decision-letter that even if the use were to change to that proposed, there could be no guarantee that the drivers associated with West End Car Services would not still come to the area. As she pointed out, most of the customers were from within Soho and the drivers would not want to be too far away when requests for cabs were made. Again the Inspector was applying a measure of common sense to the issue.

The Inspector dealt with the extent to which a condition seeking to prevent drivers and customers from congregating outside the premises might be effective. In paragraph 14 of her decision-letter, she said:

The Inspector made the point that the business was a long-established one in the area which had a regular clientele of account customers and others. Those are conclusions which are not and indeed could not be challenged. It was part of the claimant's case that the business was long established in the area and did indeed have a large and regular clientele of account customers.

The Inspector concluded that even if the premises were used as a radio control office people would still come to the office for cabs or be directed there by people who knew about its location. Again the Inspector was entitled to form that judgment on the material before her.

The sole criticism is directed to the sentence:

These criticisms of the inspector's conclusion on this issue have had an air of unreality about them, bearing in mind the second defendant's argument to which I have already referred, and the fact that there had been some ten years experience of a minicab business operating, both with and without conditions, from this particular premises. The second defendant had said in terms that in the past conditions of this kind had been consistently ignored, and they had said more generally that it made little sense for an applicant to say that the use would be as a radio control office only. The Council had asked a rhetorical question: if use was to be so limited why did it need to be in Central London at all, if it was not there in order to exploit the high numbers of potential customers in the Soho area?

The Inspector clearly raised the question with the claimant as to whether she and her business partner would be willing to comply with the claimant's suggested conditions. Having heard their answer she was not required to accept it, but was entitled to form her own view. The question was not whether the claimant and her business partner genuinely intended to adhere to the condition, but whether in practice it was reasonable to expect such a condition to be complied with in these circumstances. On material before her, bearing in mind the way in which the business had been operated for many years (whether subject to conditions or not) she was entitled to conclude that the temptation for a well-established business not to turn away its customers in the early hours of the morning when there was no other available means of transport would simply be too great. There was no satisfactory answer to the point made by the second defendant: if it was not intended to attract any customers to the premises why was there a need to locate them in Soho?

For all of these reasons there was no unfairness whatsoever in the Inspector having considered all of the evidence, including the claimant's replies to her questions, concluding that if this condition was imposed, in reality customers would turn up and they would not be turned away.

The Inspector dealt with the suggested condition that the flashing lights should be removed in paragraph 15 of the decision-letter. It was submitted on behalf of the claimant that there was an inconsistency between her conclusion in paragraph 12 "the appeal premises has two flashing lights outside which indicate that it is open for business. Because of this customers are drawn to the premises and congregate outside waiting for cabs", and the conclusion in paragraph 15 that whilst a planning condition could be imposed requiring the removal of the flashing lights "nevertheless I am not satisfied that such a condition would satisfactorily mitigate the harmful effects of the proposal for the reasons I have already given."

Mr Buley submitted that if customers were not attracted to the premises by the flashing lights then the problem simply would not arise. First, that ignores the inspector's conclusions in paragraph 13, flashing lights or no this was a long-established business to which customers would still come. But secondly, it simply does not follow that the problem would not still arise. It is perfectly true that while the flashing lights were there customers were drawn to the premises by them; that, no doubt, was why they were installed. But if the flashing lights were removed, whilst the extent of the draw might well be reduced, that is not to say that there would not be other methods of attracting customers to the premises, eg by illuminated but non-flashing lights, or by non-illuminated ordinary signage. It will be recalled that the second defendant had referred to the use of touts in the streets by businesses such as this. So that unless the Inspector was persuaded that a condition could be imposed which would effectively turn this business into a radio control room, entirely divorced from the pedestrian activity in Soho, she was entitled to conclude that the removal of the flashing lights would not, of itself, satisfactorily mitigate the harmful effects of the proposal.

What matters, perhaps, is not so much the detail but the fact that the Inspector expressly considered whether a condition requiring the removal of the flashing lights would sufficiently mitigate the problem, and concluded that it would not. The reasoning is intelligible and adequate. She was not required to go further and give further reasons in respect of this particular issue.

It is important to bear in mind that although the application to this court has placed the spotlight on the issue of the enforceability of the suggested conditions, this was simply one aspect of the appeal with which the Inspector had to deal. This was not a case where the claimant was accepting the second defendant's evidence that the present use of the premises did cause unacceptable problems in respect of highway safety and the neighbours' living conditions; and was not therefore inviting the Inspector simply to consider the issue of conditions and their enforceability. The Inspector plainly considered all of the conditions suggested by the claimant and expressly considered the issue of whether or not they would in practical terms satisfactorily mitigate the harmful effects of the development. Her conclusion that they would not was pre-eminently a matter of judgment. Further, more elaborate reasoning was not required to explain what was in essence the application of a degree of common sense.

For those reasons the application must be dismissed.

MR GREATOREX: My Lord, the usual application for costs. Does your Lordship have a copy of the schedule?

MR JUSTICE SULLIVAN: I think I only had Mr Buley's. I did not have yours.

MR GREATOREX: I am sorry, my Lord. My Lord, both the principle and the amount of costs are agreed by my learned friend, subject to one point on which I will address you now if I may, in advance of Mr Buley's submissions on it. We had a very brief discussion. The point on which he in due course makes objection is at the top of the second page of the schedule, my Lord. Work done on documents, 10.2 hours, £160 per hour. My Lord, that relates to what is the usual practise - whether your Lordship is aware of it or not - the Treasury Solicitor being the solicitor preparing notes of advice independently of any involvement by counsel. What I handed up to your Lordship with the schedule, just for your Lordship's interest and reference, is a copy of that limited advice. Strictly speaking, of course, it is a privilege, since this point has been raised by Mr Buley. There it is. That is the quibble. I say it is perfectly reasonable, and therefore I invite you to make the order in the amount shown on the schedule.

MR JUSTICE SULLIVAN: In practise, it is one's experience that although we only see the outcome, obviously we do not see the Treasury Solicitor's memoranda, but sometimes, for example, when Treasury Solicitor takes a slightly more robust attitude of what might or might not be acceptable to the judge than the Department's own lawyers, for example. He is a sight more used to seeing the whites of the judges' eyes, as it were, actually in the court, and so heads on occasion the submission of judgment by the Secretary of State where he puts his hands up and says "Yes, okay". Anyway that is the background to the ten hours, you say.

MR GREATOREX: Yes. My submission is it is perfectly reasonable in the circumstances of this case. The final point which I make is of course that is the usual order. Indeed the defendant's schedule is considerably less than the claimant's.

MR JUSTICE SULLIVAN: Yes. Thank you very much.

MR BULEY: My Lord, very briefly, of course I accept the principle, as my learned friend has told you, of costs. My one exception is the amount. And further I accept it is perfectly reasonable for the court to get the Treasury Solicitor to (inaudible) how to deal with the case. I cannot begin to test that. All I would say is it is, at the end of the day, a fairly straightforward case. Factually it raises a couple of points which your Lordship dealt with, they are not particularly complicated. In that context, my Lord, ten hours for advice is just too much, in my submission, and is not necessary. It is a matter of impression. Your Lordship has seen the memorandum, which I have not, of course. I do not ask you to do so. It is a matter for judgment for your Lordship.

MR JUSTICE SULLIVAN: I will not repeat it then.

MR BULEY: No, no, I make no objection about that. Your Lordship will no doubt form a view ---

MR JUSTICE SULLIVAN: It might be said that there is a certain amount of swings and roundabouts, because the Treasury Solicitor has almost always done a fair amount of work, counsel might feel that there is, as it were, less work for counsel to do, and that is sometimes reflected, dare I say it, in counsel's fees when instructed by the Treasury Solicitor compared to the other way round.

MR BULEY: Absolutely. My Lord, I suppose the other thing I will say which is in relation to (inaudible) all of the bundles that would have been prepared have been prepared by those instructing me, not by the Treasury Solicitor. It is not always the case that one has a (inaudible) in this case. On costs those are my submissions.

MR JUSTICE SULLIVAN: That is very helpful, thank you very much. Mr Greatorex, I do not need to trouble you further.

So far as costs are concerned I am satisfied that the claimant should pay the first defendant's costs, that those costs should be summarily assessed, they should be summarily assessed in the sum of £3,984. I make that order bearing in mind the comment about the number of hours spent by the Treasury Solicitor on the documents. But it does seem to me that to a degree there is a question of swings and roundabouts - that is to say, more time spent by the Treasury Solicitor in distilling matters, the less time for example has to be spent by counsel; and if one looks at it in terms of swings and roundabouts and compares in very broad terms the overall figure for the first defendant compared with the overall figure for the claimant, it seems to me that the sum claimed is not in the least unreasonable. So gaining with the one hand but losing with the other hand. I summarily assess in that sum.

MR BULEY: My Lord, I am instructed to make an application for permission to appeal. I heard your Lordship's clear view. I may have difficulty in persuading your Lordship, but I will not take your Lordship to the test because I know your Lordship is familiar with it. My Lord, in relation to permission to appeal I simply draw attention to ground 4. I am not going to say anything about the other grounds. But my Lord, very shortly, in my submission, the only way to read the Inspector's decision-letter is, as I have suggested, effectively a finding that my clients will not comply. I think your Lordship, as I understood it, suggested that it was more in a sense a finding as to how the customers might behave if they came. But my Lord, in my submission, it is a clear finding that they will not comply and in those circumstances I simply say - and I have put the point in a number of different ways already and will not repeat all of them - the way your Lordship has dealt with the case does not take into account the fact that enforcement of breach of condition is available as a remedy, and that in the ordinary case where that is available that should be treated as sufficient. I put the point in different ways, it is a matter for your discretion. Those are my submissions.

MR JUSTICE SULLIVAN: Thank you very much. You put it very briefly and I will respond equally briefly, no discourtesy intended. It does seem to me that on the particular facts of this case the Inspector was entitled to conclude that in reality the customers would not be turned away, and as I say, it is not a question of whether the claimant was genuine in what she said to the Inspector, but what would actually happen in practice when they turned up on the doorstep in the early hours of the morning asking for a cab. So that is the way I put that. I am not persuaded that it raises any arguable issue of law. Permission is refused.