Francis v First Secretary of State & Anor

This is an application by Mrs. Ondine Francis under section 288, Town and Country Planning Act 1990 (“the 1990 Act”) for an order quashing the decision of an Inspector appointed by the First Defendant dated 15^th December 2005 dismissing her two appeals against a refusal of planning permission by the Second Defendant (“the Council”) under section 73 of the 1990 Act.

The appeals relate to a condition attached to planning permission for the use of premises located at 76 Royal Hill, Greenwich, London SE10 as a tearoom and coffee shop. The premises occupy the ground floor of a three storey brick and timber building constructed around 1840 and are located on a street of mixed uses near the centre of Greenwich. The premises are used as a tearoom under the name “Royal Teas”. They comprise two customer areas, a small kitchen and a single toilet. The upper floors and both adjoining buildings are in residential use. The premises are located in the West Greenwich Conservation Area and are on the local list of buildings of architectural and historic interest.

Planning permission (Ref 87/0753P) for the use of the premises as a tearoom and coffee shop was granted on 1^st October 1987, subject to five conditions. All of the conditions were subsequently removed or discharged with the exception of condition 3 which stated:

“No cooking shall be carried out on the premises at any time without the prior approval of the Council”.

The reason given for condition 3 was that it was in the interests of the amenities of the neighbouring properties.

On 13^th February 2004 the Claimant applied for planning permission for the erection of a single storey extension at the rear of the premises. This was granted on 6^th October 2004 subject to conditions, one of which was that the premises should not be used for an A3 use.

On the 24^th May 2004, following the service of an enforcement notice requiring the Claimant to comply with condition 3, she applied to the Second Defendant for the removal of that condition. The Second Defendant refused this application by a decision notice dated 23^rd July 2004. The decision notice gave the following reasons for the refusal:

“(1)

The removal of the condition prohibiting cooking on the premises is considered to alter the use to an A3 use, which would impact detrimentally on the amenities of neighbouring residents and the locality generally, through an increase in odour, noise, activity, litter and loss of privacy and car movement, contrary to Policies H4, E6, E8 and S21 of the Unitary Development Plan and Policies SH4, E1, E4 and TC29 of the Second Deposit Draft Unitary Development Plan.

(2)

The establishment of an A3 use without suitable odour and noise control is considered to impact detrimentally on the amenities of neighbouring residents and the locality generally through an increase in odour, noise and activity, contrary to Policies H4, E6, E8, S21 and Policies SH4, E1, E4 and TC29 of the Second Deposit Draft Unitary Development Plan.

(3)

The establishment of a ventilation system to control odours is considered likely to have a deleterious impact on the visual and acoustic amenities on the locality, affecting the amenity of neighbouring residents and the Conservation Area generally, contrary to Policies H4, D4, D8, D18, E6 and E8 of the Unitary Development Plan and Policies D1, D16, SH4, E1 and E4 of the Second Deposit Draft Unitary Development Plan.

(4)

The removal of the condition prohibiting cooking on the premises into an A3 use. (sic) The replacement of an A1 use with an A3 use in this location is considered to deleteriously impact on the safeguarding of the neighbourhood shopping parade contrary to Policy S10 of the Unitary Development Plan and Policy TC19 of the Second Deposit Draft Unitary Development Plan.”

The Claimant appealed under section 78 of the 1990 Act. There were two appeals. Appeal A sought the variation of condition 3 so as to read:

“The preparation of hot and cold food for sale on the premises shall be limited to soup, simple vegetarian based pasta dishes, simple egg, cheese, bean and vegetable based dishes, toasted sandwiches, teacakes, baguettes and croissants. The preparation of hot food shall include the reheating of cold food by microwave oven. The baking of approximately 25 fresh cakes each working week shall also be permitted”.

Appeal B sought the removal of condition 3.

He considered that the “main plank” of the Appellant’s case was that the condition in dispute cut across and diminished the planning permission that had been granted which was, in effect, for A3 use. She had submitted that the condition was unnecessary and failed the test set out in Circular 11/95. She had submitted that a more appropriate condition would require the approval and installation of a mechanical extraction system.

The Inspector considered that while the current use of the premises did not obviously come within class A1, as the sale of hot drinks for consumption on the premises was the primary business carried out rather than any other retail activity, the restriction on cooking on the premises as imposed by condition 3 limited the range of food for sale to what would be more appropriate to an A1 use such as a sandwich shop. However, he considered that the essential point was not that the use fell within either use class, but that food could not be cooked on the premises. In this regard he rejected the submission of the Appellant that the condition in dispute diminished the planning permission that had been granted. He considered the extant planning permission to be clear. The condition was imposed in order to protect adjoining residential occupiers. To my mind the Inspector’s approach was entirely correct. There was a degree of circularity in the Appellant’s argument. The planning permission granted was restricted and defined by the condition. The Inspector correctly identified the issue under consideration on the appeal as whether, having regard to all the circumstances, the condition continued to serve a valid and useful planning purpose.

The Inspector identified the tests in paragraph 14 of Circular 11/95. He considered that there was a clear distinction between reheating food and cooking food from basic ingredients. He was satisfied that the activity of cooking was quite distinct from heating up and considered that if cooking took place it would easily be detected. He therefore considered the condition reasonable and enforceable. (Paragraph 15).

The Inspector considered that the proposed amended condition would be ineffective to control smells by limiting the type of food cooked.

At paragraph 17 he stated:

“I do not doubt that due to the rather basic construction of the floors and walls of this old building and the timber access stairs that pass through the centre of the floor plan, cooking smells may permeate easily to be noticed by the residents of the flat above and those of adjoining properties. The windows of the living areas of 3 dwellings are also in close proximity to the back door of the kitchen and smells are very likely to emanate by this external route. I understand that in warm weather, that door and a small window is kept open for reasons of ventilation and comfort. However, it is also on warm days when residents will desire to open their own windows. The rear area of gardens is restricted by high walls to the east and north (that to the north being at least 3 storeys high) and I consider smells may not easily disperse, depending on weather conditions. I conclude that the activity of cooking in the appeal property as it stands would detract from the living conditions of adjoining residents.”

He referred to regular complaints since the use commenced. He considered that if a different operator took over the premises cooking would be likely to lead to more objectionable odours. They would be more difficult to control if an A3 use were permitted without an effective ventilation and extraction system. (Paragraph 18) He then continued:

“19.

Turning to the ventilation system that has been proposed, planning permission was granted in October 2005 for a rear extension that provides a modern toilet facility and a slightly enlarged customer area. As part of the appeal submission, a ventilation scheme was submitted that has been approved by the Council’s Environmental Health and Building Control Departments, which could be installed as part of the extension and improvement works. It includes a heated intake at the front of the building combined with a grease filter and activated carbon filter at the rear. The appellant suggests that this removes some of the force of the Council’s reasons for refusal. In my view, whilst a filtered extract must lead to some improvement, unless it is combined with a proposal to seal the internal walls and floors, some smells are likely to continue to permeate through by this route. Furthermore, there is no high level extract proposed. The Public Services division of the Council advised that a low level discharge would not be acceptable. In addition, no indication of the likely performance of the filter is given and I consider it is extremely likely that cooking smells will still be perceived by adjacent occupiers, particularly when the filter needs changing; simply due to the close proximity of their windows and living areas to the extract.

20.

No attenuation is proposed to deal with noise, the potential nuisance of which is referred to in the third reason for refusal. The scheme includes 3 fans, 2 of which would discharge directly to the outside. Whilst a condition could be imposed requiring the prior approval of the detail design of the ventilation system, the space available is very restricted. It seems likely that the fans would operate for much of the day and the main kitchen extract would be within 2 metres of the window of the adjacent dwelling. I am not satisfied that this scheme, which was designed after the applications had been refused and in knowledge of the reasons, would sufficiently reduce the harm that could be caused to the amenities of the adjoining occupiers in terms of noise from fans.

21.

I have considered the possibility that a high level ventilation extract could be installed but whilst such a system could also be subject to approval by the Council by way of a condition, without a firm proposal the visual effect on the Conservation Area and the locally listed building cannot be properly assessed.”

He concluded in relation to the amenity of neighbours.

“23.

I have taken account of the advice received by the appellant from the Council over the years which at times has been confusing, as well as the long period during which cooking has continued during which a loyal customer base has been created. However, that does not affect the planning matter at issue, on which I am satisfied that the condition in dispute is reasonable, necessary and enforceable, and serves a useful planning purpose. As proposed, the applications to remove or vary the condition would conflict with the amenity protection objectives of UDP policies E6, E8 and S21.”

The Inspector then went on to consider whether the proposals would conflict with the policies intended to protect the character of the Conservation Area. He concluded that they would.

The Inspector then considered the issue of vitality and viability, which, it is accepted, is not relevant to the present appeal.

He expressed his conclusions as follows:

“31.

Notwithstanding my conclusion that there would be no effect on the viability or vitality of the local shopping parade, the effect on living conditions of nearby occupiers and the conservation area is decisive. For the reasons given above and having regard to all other matters raised, I conclude that he appeal should be dismissed.”

The Claimant’s challenge to the Inspector’s decision is on grounds of procedural unfairness. The Claimant contends that the decision was reached in a manner which was procedurally unfair for reasons formulated as follows:

In support of her submissions the Claimant relies on the following formulation of the rules of natural justice applicable in the exercise of an investigative jurisdiction, as stated by Lord Diplock in Mahon v Air New Zealand Limited [1984] AC 808, 820-1.

“The first rule is that the person making a finding in the exercise of such a jurisdiction must base his decision upon evidence that has some probative value in the sense described below. The second rule is that he must listen fairly to any relevant evidence conflicting with the finding and any rational argument against the finding that a person represented at the inquiry, whose interests (including in that term career or reputation) may be adversely affected by it, may wish to place before him or would have so wished if he had been aware of the risk of the finding being made. The technical rules of evidence applicable to civil or criminal litigation form no part of the rules of natural justice. What is required by the first rule is that the decision to make the finding must be based upon some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory. The second rule requires that any person represented at the inquiry who will be adversely affected by the decision to make the finding should not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce additional material of probative value which, had it been placed before the decision-maker, might have deterred him from making the finding even though it cannot be predicted that it would inevitably have had that result.”

The Claimant also relies on the speech of Lord Russell of Killowen in Fairmount Investments Limited v Secretary of State for the Environment [1976] 1 WLR 1255 and the judgment of Lord Goddard C.J. in R. v Paddington and Saint Marylebone Rent Tribunal, Ex parte Bell, London and Provincial Properties Limited [1949] 1 KB 666 at p. 682 as particular applications of this general principle.

The Claimant submits that the central issue on this application is the Inspector’s acceptance that a high-level ventilation duct was a continuing requirement of the Public Services Department and his reliance on this in his reasoning. It is submitted that the Claimant proceeded on the basis that the requirement had fallen away as a result of the ventilation scheme submitted on her behalf to the local planning authority. It is submitted that the proposed scheme had received no criticism on that ground from the Council either before or at the hearing. Furthermore, this was a matter on which the Inspector heard no evidence. The Claimant submits that she had made very clear both in correspondence and in her statement of case that she considered that any historical requirement for a high-level duct had fallen away. As a result, it is said that the hearing before the Inspector proceeded on the basis that there was no continuing requirement for a high-level duct and that nothing that occurred at the hearing could have caused her to think otherwise.

In order to consider these submissions it is necessary to set out the history of the matter in some detail.

Following the Claimant’s application to the Council on the 24^th May 2004 for the removal of condition 3, officers of the Council produced in about June 2004 a document entitled “Development Control Delegated Report” which addressed the application. This document, a copy of which was supplied to the Claimant at the time, included the following passages:

“Public Services

Public Services advise that they would have no objection to the proposal subject to a suitable extract ventilation system being high level ducted nuisance free discharge position, internally located fully isolated fan and additional odour control. Premises should be treated as any other A3 use. Low level discharge is not acceptable. Imposition on “no cooking” may relate to difficulties of providing duct at rear.”

“Currently there is no ventilation system, as the subject premises have no permission for cooking. It should be noted that no details were supplied to us as to a ventilation system to address any impact which may arise as a result of the removal of Condition 3. As this is relevant to the upholding of this “no cooking condition” the following evaluation is made. The subject site is located in a Conservation Area with residences in close proximity above and beside it. The installation of potential ducting to control cooking odours, potentially as high as the roof or alternatively, internally through the building in the building would be likely considered to impact on visual amenity, and cause nuisance, from noise, vibration and discharge to local residences.”

“Impact on the Conservation Area.

The potential installation of high level ducting to control odours (should the premises be an A3 use) is likely to have significant visual impact on the Conservation Area contrary to Policy D18 and Second deposit draft Unitary Development Plan policy D16.”

“Conclusion.

The subject site is unsuitable for an A3 use. Allowing cooking on the premises is considered to deleteriously impact on the amenity of local residents. The establishment of a ventilation system to control odours is considered to deleteriously impact on the Conservation area and residential amenity. The establishment of an A3 use in this location is considered incompatible with adjoining residential uses and to erode the safeguarding of the neighbourhood shopping parade.”

It recommended that the application be refused for the reasons subsequently given by the Council in its refusal.

On 6^th October 2004 the Council granted planning permission for the erection of a single storey extension at the rear of the premises, subject to a condition that the premises should not be used for A3 use. The planning permission included permission for ducts.

On 17^th March 2005 Mr. John Love on behalf of the Claimant submitted to the Council’s Building Control Department a design of a ventilation system for the single storey extension. It is common ground between the parties that this proposal was for discharge at the level of the single storey extension and was therefore a low level system. On 7^th April 2005 Mr. Love wrote to the Environmental Health Department of the Council seeking approval for his design.

On 11^th May 2005 Mr. Bennett, a Senior Environmental Health Officer in the Council’s Environmental Health–Commercial Department replied to Mr. Love in the following terms:

“The scheme would appear to satisfy the requirement of the Food Safety Act 1990 and legislation made thereunder.

I would however advise you that this does not confer automatic approval under the Planning and Environmental Protection Legislation which may or may not be granted when planning permission is applied for.”

On 20^th May 2005 Mr. Stanway, a planning consultant engaged by the Claimant, wrote to Mr. Chris Morris, the Director of Strategic Planning of the Council, referring to the pending appeals against the Council’s refusal to vary or remove condition 3. He enclosed details of the mechanical ventilation system designed by Mr. Love which, Mr. Stanway stated, had been designed to deal with environmental concerns that the Council had shown about the premises. Mr. Stanway stated:

“Clearly the approval of these ventilation proposals, which fit into the proposed extension works that were permitted on the 7^th October 2004,…remove some of the force of your Council’s reasons of refusal… This is particularly so at reason 3 which is satisfied by the approved ventilation system and which must fall away from consideration of the appeal.

We therefore invite you to reconsider the circumstances of these matters where the Council may wish to grant planning permission for a sympathetic proposal for the premises without resorting to the appeals.

We look forward to receiving your helpful response and confirm that copies of these documents are being sent to the planning Inspectorate.”

It is an unfortunate fact that the Council never responded to that letter.

In June 2005 Mr. Stanway submitted the Claimant’s Statement of Case on the Appeal to the Inspector. This document addressed the reasons for refusal. It includes the following statements:

“4.2.2.2 Policy E6: Planning Permission

The proposals will not result in any emission of noise, fumes, dust, water or any water and soil pollutants, grit or vibrations.

A satisfactory extract system has been designed which has received approval from the LPA’s building regulation and environmental health officers. Those details were sent to the LPA and the Planning Inspectorate on the 20 May 2005.”

The same response was made in relation to Policy S21:

“We comment that a satisfactory extract system has been designed that will combat any cooking smells…”

“5.1.3…

We comment that the condition was unnecessary and does not serve the purpose for which it was intended. The interests of the amenities of neighbouring properties would best be served by adding a condition that required a suitable mechanical extract system to be authorised by the LPA before commencement of the development. Clearly the prescribed activity has not harmed the neighbourhood amenities there being no complaints being made for nearly 12 years about the activities taking place at Royal Teas.”

“6.3

The five objections highlighted in the Development Control Delegated Report deal with environmental issues which in terms of the emission of cooking odour would be obviated by the installation [of] the environmental controls that have been approved by the Council.”

“7.1.3

To avoid any doubt about the suitability of the premises for these uses in this location. An acceptable method and system for ventilating the premises has been designed and approved by the LPA. If this appeal is sustained and planning permission granted. This installation would be implemented and a suitably worded condition would be attached to insure that this installation is carried out.”

The Council’s response to the Claimant’s Statement of Case is contained in a letter dated 11^th July 2005. This letter includes the following statement:

“The LPA has received a letter and information relating to a proposed mechanical ventilation system for the appeal site from the appellant. The LPA considers that the alterations to the front of the unit necessary for the installation of the system would be harmful to the character of the Conservation Area. The LPA considers further that the expulsion of air from the rear elevation of the appeal site would be detrimental to the amenity of the neighbouring properties.”

The letter also states:

“The LPA has submitted officer’s reports (sic) in relation to this appeal outlining the Council’s case.”

This is, and would have been understood by all concerned, to be a reference to the Development Control Delegated Report of June 2004 to which reference has been made above.

On this application there is evidence from Mr. Stanway that at the hearing before the Inspector on 23^rd November 2005,

The Claimant’s case is, essentially, that she has been kept in the dark as to the risk of certain findings being made and, as a result, has been deprived of an opportunity to deal with these matters at the hearing. In the words of Lord Russell of Killowen in Fairmount Investments,she has been denied a fair crack of the whip.

First she contends that at no point prior to or at the hearing of her appeal had the Council put in issue the submission upon which she relied in support of her appeals, to the effect the proposed ventilation scheme was in any respect inadequate or ineffective in eliminating or reducing cooking odours to acceptable levels. I am unable to accept this submission. The suitability of a ventilation system was clearly in issue. In that regard the Claimant maintained that Mr. Love’s proposals met all of the difficulties and objections. As a result the adequacy or effectiveness of the proposed ventilation scheme was clearly in issue in the appeals.

Secondly, the Claimant submits that the Council had not referred, either before or at the hearing, to there being an ongoing requirement for a high-level ventilation duct of the kind referred to by the Public Services Division and that nothing had been said to suggest that the Public Services response to consultation in 2004 remained a live issue, despite the fact that the low level system had subsequently been approved by the Environmental Health and Building Control Departments. The Claimant complains that the Inspector did not refer to the requirement of Public Services for a high level duct despite the fact that Mr. Stanway had explained at the site visit the absence of external bulk in the design of the ventilation scheme that had been submitted. The Claimant submits that it was unreasonable for the Inspector to refer in his decision to the absence of a firm proposal for a high level ventilation system in circumstances in which the Claimant could not have been aware that such a proposal was necessary. For these reasons it is submitted that it was procedurally unfair for the Inspector to have treated a high level duct at the rear of the premises as a continuing requirement imposed by Public Services without reference having been made or evidence having been directed to that issue at the hearing.

I am satisfied that there was no reasonable basis on which the Claimant or her advisors could have concluded that the requirement for a high level ventilation duct was not an on-going requirement. In particular, it is incorrect to state there was nothing before the hearing to suggest that there was an ongoing requirement for a high level ventilation duct.

I have referred above to the fact that the Development Control Delegated Report cites the advice of the Public Services Department to the effect that a low level discharge was not acceptable. Contrary to the submission on behalf of the Claimant, I consider it totally irrelevant that by the time of the hearing of the appeals the Council’s Public Services Department had ceased to exist. The position taken in the Development Control Delegated Report was and remained the position of the Council.

I should also draw attention to the fact that in his first witness statement Mr. Stanway states that he pointed out to the Inspector on the site visit the absence of external bulk in the design of the ventilation scheme that had been submitted. This demonstrates that the Claimant and her advisors were aware that the impact of the proposed ventilation system on the Conservation Area was an issue at the hearing.

The Inspector was under a duty to determine the appeals on the basis of the proposal that the Claimant had put before him, namely the proposal including the proposed ventilation system. It is clear that this is what he did.

Thirdly, the Claimant submits that the Inspector dealt in an unfair manner with the issue of noise in that that issue had not referred to by the Council prior to or at the hearing. I consider that there is no reasonable basis on which the Claimant or her advisors could have concluded that noise was not an issue in the appeals. Three of the four grounds for the refusal of consent expressly referred to noise. This was clearly an important issue in the appeals.

The Claimant then makes the further submission that there was procedural unfairness to the Claimant in that the Inspector failed expressly to raise certain issues at the hearing or to put matters specifically to the Claimant and her advisors. In this way a complaint is made that the Inspector failed to put to the Claimant the suggestion that the proposed ventilation scheme was inadequate or ineffective, the continuing requirement for a high level ventilation duct and the issue of noise.

In this regard the Claimant relies on Dyason v Secretary of State for the Environment and Chiltern District Council [1998] JPL 778. There, the Court of Appeal was concerned, as we are in the present case, with a hearing as opposed to a public inquiry. Pill L.J. observed (at p. 784):

“Planning permission having been refused, conflicting propositions and evidence will often be placed before an Inspector on appeal. Whatever procedure is followed, the strength of the case can be determined only upon an understanding of that case and by testing it with reference to propositions in the opposing case. At a public local inquiry the Inspector, in performing that task, usually has the benefit of cross-examination on behalf of the other parties. If cross-examination disappears, the need to examine propositions in that way does not disappear with it. Further, the statutory right to be heard is nullified unless, in some way, the strength of what one party says is not only listened to by the tribunal but is assessed for its own worth and in relation to opposing contentions.

There is a danger, upon the procedure now followed by the Secretary of State of observing the right to be heard by holding a “hearing”, that the need for such consideration is forgotten. The danger is that the “more relaxed” atmosphere could lead not to a “full and fair” hearing but to a less than thorough examination of the issues. A relaxed hearing is not necessarily a fair hearing. The hearing must not become so relaxed that the risk of examination essential to the determination of difficult questions may be diluted. The absence of an accusatorial procedure places an inquisitorial burden upon an Inspector.”

In that case, the appellant against a refusal of planning permission had called the President of the British Domesticated Ostrich Association to give his opinion on his business plan for ostrich breeding. The witness had not seen it in advance and told the Inspector that he could not assist as he had not seen it. There was no application for a brief adjournment to enable the witness to consider the document, nor was such an adjournment offered. There was no apparent challenge to the business plan. However, in his report the Inspector made findings adverse to the appellant, including expressing considerable doubt as to his intentions and a finding of insufficient detail about future expansion. The Court of Appeal held that if an Inspector is minded to make such findings against a party he should put the doubts to him and give him an opportunity to deal with them. In all the circumstances the fair hearing required by statute had not been provided.

As with all allegations of procedural unfairness, a great deal will turn on the particular facts of the case. Thus, in Dyason Pill L.J. expressly added (at p. 784) that each case must be determined on its own merits and that there are plainly limits to the Inspector’s duty to ask questions. In the present case, I consider, for the reasons set out in detail above, that the Claimant was sufficiently alerted to the matters which were the issue in the appeals so as to relieve the Inspector of any burden to do anything further to draw attention to them. Moreover, it is clear from Mr. Stanway’s evidence that the Inspector heard detailed submissions on behalf of the Claimant as to the virtues of Mr. Love’s scheme and how they would provide an answer to the objections maintained by the Council.

For these reasons I do not consider that there has been any procedural unfairness to the Claimant.

In any event, I consider that there is a further obstacle in the path of the Claimant. It is clear that even if the Inspector was in error on one or more of the grounds indicated above, he would nevertheless have come to the same conclusion (c.f. Simplex GE (Holding) Limited v Secretary of State for the Environment [1988] 3 PLR 25). In dismissing the appeal on grounds of the effect on the amenities of neighbours, the Inspector considered that the condition imposed in 1987 was reasonable and enforceable and that an attempt to control smells by limiting the type of food cooked by imposing the suggested amended condition would be ineffective. He concluded that the activity of cooking in the property as it stands would detract from the living conditions of adjoining residents. He considered the ventilation scheme proposed by Mr. Love and rejected the Claimant’s suggestion that this removed some of the force of the Council’s reasons for refusal. He did so for a number of different reasons. One was that no high level discharge was proposed and that a low level discharge would not be acceptable. A second related to the efficacy of Mr. Love’s proposal. Here the Inspector concluded that there was no indication of the likely performance of the filter and he considered it extremely likely that cooking smells would still be perceived by adjacent occupiers. In this regard, it is significant that the Inspector dealt with and assessed the merits of Mr. Love’s scheme quite independently of the objection based on lack of a high level duct ventilation scheme. Thirdly, he rejected the Claimant’s submission for a further distinct reason, namely that no attenuation was proposed to deal with noise. He was not satisfied that the scheme would sufficiently reduce the harm that could be caused to the amenities of the adjoining occupiers in terms of noise and fans. (Paragraph 20). Each of these was an independent route to his conclusion.

However, even if it is assumed, contrary to the view I have come to above, that these three lines of reasoning were not open to the Inspector because of unfairness in the proceedings before him, there remains a fourth basis on which the Inspector rejected and was entitled to reject the Claimant’s submission based on the ventilation system proposed by Mr. Love. In paragraph 17 of his decision the Inspector had referred to the rather basic construction of the floors and walls of this building and the timber access stairs that pass through the centre of the floor plan. He considered that, as a result, cooking smells may permeate easily to the flat above and to the adjoining properties. At paragraph 19 of his decision, in addressing the Claimant’s submission based on Mr. Love’s ventilation scheme, the Inspector added that whilst a filtered extract must lead to some improvement, unless it is combined with a proposal to seal the internal walls and floors some smells are likely to continue to permeate by this route. This is, to my mind, entirely distinct from the other grounds of rejection which are challenged in this appeal on grounds of procedural unfairness. I consider, therefore, that the Inspector would have come to the same conclusion in any event.

Contrary to the submission on behalf of the Claimant, I do not consider that the Inspector’s objection based on smells permeating through the structure of the building could have been met by the imposition of a condition as to sealing the property. This was not a matter which had been proposed by the Claimant and I do not consider that there was any obligation on the Inspector to consider such a condition.

For these reasons the application will be dismissed.

"When applications come to appeal the Secretary of State and the planning inspector welcome reasoned suggestions from the parties as to the conditions which they would find acceptable if permissions were granted. Such suggestions will be fully examined and may or may not be adopted. But the conditions will not be imposed if they are considered to be invalid or they are unacceptable on policy grounds."

At paragraph 14 the requirement or conditions to be imposed are six: "necessary, relevant to planning, relevant to that permitted, enforceable, precise and reasonable in all other respects". It is my submission that your Lordship should not have held an order for the imposition - - a condition could not be imposed without adverting at least to that circular and to those conditions.

Moving on swiftly from that, you find as a matter of fact that an imposition of a condition was not a matter that had been raised by the claimant. First, that was no part of the Secretary of State's submissions on the application. In my submission, either this point is simply wrong or, alternatively, you have rejected, without adverting to it, the evidence of Mr Stanway in this case because he, under ground 2, conditional on the grounds of this application, under paragraph 27, said:

I should also point out for completeness - I will not take you to it, my friend can contradict me if he thinks he can - that that statement in the grounds is confirmed and vouched for by a statement of truth in Mr Stanway's first witness statement at tab 8, where he confirms not only the facts stated in his witness statement are true but also the facts stated in the grounds are true.

If you are going to reject what is unchallenged evidence of a witness, in my submission, it should be made clear as to grounds on which that evidence is rejected. Not only did Mr Stanway raise that - or say it was raised at the hearing - but he also says that the local authority made no objection to it, which is an important matter which I will come to in a moment.

Mrs Francis is bound to be left with a sense of injustice if evidence of this kind is simply going to be rejected on an application of this kind, where it is not challenged by the Secretary of State and if the unacceptability or the apparent implausibility of that evidence is not canvassed on the application.

MR JUSTICE LLOYD JONES: Mr Marshall, this was very much a subsidiary point. It was hardly mentioned during the course of argument. Are you going to deal with the main grounds?

MR MARSHALL: I was dealing with this because, in a sense, this is the most obvious. I take you finally to the bundle I have prepared, the third tab which is Circular 5/2000 Planning Appeals Procedures. I have tabbed annexe 2 (ii), Procedure at the Hearing. The guidance is as follows:

And, for completeness -

I cover that because that is the fourth and, as it were, the Simplex ground which is an important part of your judgment because, obviously, if I were to challenge the other parts and the Simplex remained that would be highly unsatisfactory.

I turn to the other part and, in a sense, the substance of your judgment. In my submission the effect of your judgment is very important and will be a matter of considerable interest, not only to the planning community but to the public as a whole. What it does is substantially to narrow Dyason as it has been understood by the courts and, in particular, in one authority (a judgment of Mr Justice Keene, as he then was). You said, in terms, in paragraph 33 of your judgment that there was no reasonable basis for the claimant thinking that a requirement for a high level duct was not an on-going requirement. In my submission it is perfectly clear - however your Lordship rejects this - that the claimant did approach the hearing before the inspector on the basis that the scheme provided did address and resolve any requirement so far as a high level duct is concerned because it had no external bulk. That is a statement which Mr Stanway repeatedly emphasises in his witness statement. That was unchallenged so far as the Secretary for State is concerned.

At paragraph 41 you said, and this is the narrow point:

That conflicts with two judgments. I will refer not to the whole of the judgment, but the two statements of principle I can deal with quite shortly. The first is London Borough of Croydon v Lex Services, the first in your bundle. This is a judgment of Mr Justice Keene on a Section 288 application. It is material for his formulation of what Dyason is authority for - and that is at paragraph 43 - where he said:

This is the point on which I rely. He also goes on to say:

That is what happened in Dyason.

MR JUSTICE LLOYD JONES: Dyason was a very different case.

MR MARSHALL: It was quite different on its facts. But this is Mr Justice Keene's understanding of what Dyason is authority for.

MR JUSTICE LLOYD JONES: Lord Justice Pill in Dyason makes it absolutely clear that what is required will vary according to the facts of each case.

MR MARSHALL: That is also said. If I may say so, Mr Justice Keene does not say that he must put the point to a party if he is going to make an adverse finding unless it is sufficiently clear on the papers. Secondly, there is a decision of Mr Justice Ouseley in Castleford Homes v Secretary of State [2001] EWHC Admin 77. This authority is slightly different in that what it says - it is probably better to take you to the system referred there - at paragraph 65, which concerns an inquiry not an informal hearing, is:

This is in the context of an adversarial hearing where ordinarily there is counsel on both sides. A fortiori, that applies in an informal hearing.

It is perfectly plain that insofar as you have held that there was a continuing requirement for a high level duct, it is equally clear that Mrs Francis and Mr Stanway understood that that issue had been resolved or fallen away because, as he repeatedly said, the scheme proposed had no external bulk.

If, as you have held, there was a continuing requirement for a high level duct, that was an obvious and serious misapprehension that the claimants were labouring under. Mr Justice Ouseley says that that needs to be clarified, as a matter of fairness, in an inquiry when there is an adversarial process in which the parties can be expected to - with their advisers - pick up what may or may not be in issue. In my submission that applies with full force here.

My last point is - and this comes back to the point I made at the hearing on this application - either the inspector realised the high level duct was a matter of importance, in which case at the hearing he failed to raise it when, in fairness, he should have done, or he did not do so in which case, as a matter of fairness, after the hearing he should have done so.

My last point as to grounds of appeal is your judgment would be more sustainable if this was an inquiry but it was an informal hearing. For all the reasons that I have outlined, your Lordship ought to give permission to appeal. In relation to the first, so far as you have rejected Mr Stanway's evidence, that is a matter on which the test - real likelihood of success, the real prospect of success - is undoubtedly made. In my submission it would be wholly artificial if you were not persuaded, on my second argument, to give permission on that ground alone.

MR GREATOREX: I appear for Miss Busch who cannot be here. She sends her apologies. To a certain extent, I am not as well equipped to deal with this as Miss Busch would have been. Nonetheless - having read your Lordship's judgment and been familiarised with the arguments in this case - I think I can deal with the points very briefly as follows.

The submission is you should refuse permission. If the Court of Appeal want to hear this that is something that they themselves should determine. In my submission the Court of Appeal would be rather surprised were this to land on their desk with permission having been granted. I say that because of the points you have made in interventions during my friend's submissions, as pointed out at paragraph 41 of your judgment, that these issues turn on their own facts. It may be as short as that. What my friend is essentially doing it seems to me is re-arguing the merits of the case which he has put, and lost on, and there is nothing in your judgment I can see to suggest that this was, in any way, a close call. Your Lordship has judged that on the facts of the case procedural fairness was satisfied. That is a very fact-sensitive question. Of course the Court of Appeal might take a different view, but that is something they should answer rather than permission be granted in this court.

The second point is that you go on at paragraph 43 of your judgment, after having given the main finding in paragraph 42, to say, in any event, there is a further obstacle - it is obstacles I think - because paragraph 43 deals with the point made there about the inspector who nevertheless had come to the same conclusion. At paragraph 44 you again assume contrary to your own view on the matters expressed and nonetheless deal with that.

With regard to paragraph 45, I am gratified to hear your Lordship mention that this was very much a minor point. I was frankly slightly surprised that this was where my friend's submissions began. It did seem to me it was all very much a minor point right at the end. That cannot form a basis for permission to appeal, certainly not at this stage. But as I said, the Court of Appeal might take a different view. My friend does not rely on the second ground upon which permission could be granted, namely the issue of some public importance. I think that must be right, so I do not have to say anything about that. This is very much a decision on its facts for your Lordship. The claimant has lost and must go to the Court of Appeal if they want to take this further.

MR JUSTICE LLOYD JONES: Do you say anything else about 45?

MR GREATOREX: It is a little bit difficult because that goes - I confess - far deeper into the detail of the case than I was expecting. What I can say about that - without going too far into the facts of the case - is that against the factual judgments by you as to what was fair in the circumstances for the inspector to do or not to do, there is a degree of informality about these hearings. It is not incumbent upon the inspector to dig up every possible point and deal with it. What your judgment expressed in the previous 44 paragraphs was that there was a fair hearing. I think this was a peripheral point.

MR MARSHALL: I did say it was a matter of general public importance.

MR JUSTICE LLOYD JONES: You say that it is important because of the scope of Dyason.

MR MARSHALL: In the commentary to Dyason, in the Journal of Planning Law which is the copy in your bundle, the editors of the Journal of Planning Law say Dyason represents a sea change and, in terms, "it is no longer satisfactory for the inspector to let the parties make the running". Your judgment winds the clock back and states so long as these matters are ventilated on the papers somewhere, it is up to the parties to pick them up. In the light of Mr Justice Keene's and Mr Justice Ouseley's statements, that is simply not right and the inspector was bound to clarify these matters where it was undoubtedly clear that the claimant was under the most serious misapprehension as to what her scheme had achieved. She says the statement of case is shot through with this - - is a satisfactory proposal. Nobody said at any stage no, it is not, because there is not a high level duct.

R U L I N G

MR JUSTICE LLOYD JONES: Notwithstanding the submissions of Mr Marshall, I refuse leave to appeal in this case. Even if there is any substance in the criticisms which are made at paragraph 45 of the judgment - which I do not consider there is - this is very much a subsidiary point. I have considered the arguments advanced by Mr Marshall in relation to that matter and the main parts of the judgment. I do not consider that an appeal would have any real prospect of success.

Furthermore I do not consider that this case raises questions of general importance which would justify grant of leave. (To counsel) Are there any other applications? Can I ask you to draw up the order in the final form and submit it to me?

MR MARSHALL: I would ask you to entertain this application; I can tell you that the application will - not perhaps surprisingly - be renewed on paper.

MR JUSTICE LLOYD JONES: That it will?

MR MARSHALL: It will. I do not mind telling you that. In those circumstances would you be willing to order a stay on execution pending that application being made, subject to it being made within 21 days which is the period, and then obviously to be renewed in the Court of Appeal if permission is granted?

MR JUSTICE LLOYD JONES: What exactly would it be staying?

MR MARSHALL: It would be enforcement effectively closing down the business as of today because your judgment brings an end effectively to the existing activity.

MR JUSTICE LLOYD JONES: Only cooking on the premises.

MR MARSHALL: My instructions are if cooking stops the business effectively stops. If you order a stay for 21 days - and this application has taken two years to get on - another three weeks is not going materially to affect the local authority. I would ask you to suspend any execution pending that application being made until determination of the paper application, that is as your Lordship has rejected - - - - -

MR JUSTICE LLOYD JONES: Suspending the execution of what?

MR MARSHALL: The enforcement notice. There is an enforcement notice outstanding which is in the course of being suspended pending the planning appeal process, first, to the inspector and then to your Lordship. Obviously no enforcement action is taken in the pendency of that and this judgment. I am asking for a short extension to that pending their Lordships dealing with it on paper or a renewed application if necessary.

MR JUSTICE LLOYD JONES: Mr Greatorex?

MR GREATOREX: I do not have a particular view. I represent the Secretary of State. To assist your Lordship, could I ask whether the enforcement notice has been appealed. If it has been, it will be automatically stayed by terms of that appeal having been lodged; that is the first point. I simply do not know on the facts of this case whether the enforcement notice has been appealed.

Secondly, I would be extremely surprised - based on my knowledge and experience of planning authorities - if they were to rush and do anything if they knew an application to the Court of Appeal was still outstanding. I think the best way to deal with it, in the absence of the local authority, is for you to make observations if you were to agree with that and the proper course would then be for the claimant to come back to this court and renew the application for a stay if the local planning authority were doing anything precipitative.

MR MARSHALL: The only objection to that is the cost. If the application is not made in the time specified, it will be out of time.

MR JUSTICE LLOYD JONES: I will say that there will be a stay on the enforcement notice of 21 days to permit an application to the Court of Appeal.

MR MARSHALL: I am obliged.

MR JUSTICE LLOYD JONES: If you could put it in the order and send it through to me.