Pemberton International Ltd v London Borough of Lambeth & Anor

This is a claim for judicial review of a decision of the Defendant, the local planning authority. By that decision, dated 5 February 2013, the Defendant granted planning permission for the making of a material change of use of premises referred to as Unit 2, which was part of a development at 53,55,57 and 63 Old Town London, to use as a restaurant and café and varied a condition attached to a previous planning permission which also permitted that change of use.

The condition, Condition 3, originally provided that there was to be no outdoor seating for Unit 2 without the prior written permission of the authority. The new planning permission permitting the change of use was subject to a condition which permitted outdoor seating, within a specified area, limited to 30 covers and operating only between the hours of 9 a.m. and 8 p.m. This challenge concerns the variation of that condition.

Collins J. granted permission to apply for judicial review on two grounds firstly, that the decision was taken in breach of the Defendant’s scheme of delegation and so was ultra vires, and secondly, that there had been a failure to have regard to a material consideration namely what was described as a previous in principle objection to outdoor seating. Permission to amend was granted to allow an additional point to be raised under ground 2, namely failure to have regard to complaints about breaches of conditions made during the period of an earlier, temporary planning permission for the change of use.

Planning permission is required for development. Development means the carrying out of building or other works, or the making of a material change in the use of land: see sections 55 and 57 of the Town and Country Planning Act 1990 (“the 1990 Act”).

Section 70(1) of the 1990 Act provides that:

“(1)

Where an application is made to a local planning authority for planning permission –

(a)

subject to sections 91 and 92, they may grant planning permission, either unconditionally or subject to such conditions as they think fit;

(b)

they may refuse planning permission.”

Section 73 of the 1990 Act provides a mechanism for applying for permission to develop the land without having to comply with conditions previously attached to a planning permission. Sub-sections 73(1) and (2) provide that:

“(1)

This section applies, subject to subsection (4), to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted.

“(2)

On such an application the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted, and—

(a)

if they decide that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly, and

(b)

if they decide that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted, they shall refuse the application.”

In other words, planning permission may be granted subject to conditions. If a person wishes to vary those conditions, the mechanism is to apply for planning permission under section 73 of the 1990 Act. The authority considers only the question of the conditions that should be attached to any planning permission. If the authority decides that the conditions should be varied, they grant a separate planning permission subject to the new conditions.

By way of background, the premises in question are in an area which includes a square surrounded by residential buildings. The ground floor consists of restaurants and business units whilst the upper floors are residential with windows and balconies overlooking the square.

An application for planning permission was first made for permission for development of a site at 53-57 and 63 Old Town, in Clapham in about 2005. The proposal included the partial demolition of some buildings and the erection of seven new buildings with a maximum of six storeys to provide residential accommodation and retail units, offices and, at Units 1 and 3, units with permission for a mixed use, namely use as a restaurant and cafe (which are Use Class A3 uses).

That application was considered. Among the issues to be addressed was the impact of the proposal on the amenities of neighbouring and future occupiers. That included the possibility of noise. The applicant for planning permission submitted an acoustic assessment. That suggested that the planning permission be granted subject to certain conditions, including a condition that there be no outside seating area for the restaurant. The views of the officer responsible for noise were sought and he indicated that there were no noise objections but in order to limit the noise impact there should be no outside seating for the restaurant areas without the prior permission of the authority.

That application for planning permission was granted on 20 August 2006. It was subject to conditions including condition 6 which provides that there should be no outside seating area for the A3 use premises without the prior written permission of the LPA. The A3 use premises were Units 1 and 3 which had permission for mixed use as a restaurant and café (Use Class A3). The Defendant contends that it is implicit in the grant of that planning permission that the use of the open space, in conjunction with the use of unit A1 and A3 for a Use Class A3 use, is permissible in the sense that it would not be a breach of development control so long as the restaurant complied with the conditions of the planning permission. The Claimant does not necessarily accept that the planning permission does have the effect of permitting development comprising the use of the square in conjunction with the A1 and A3 units. That issue is not one that needs to be resolved in this case.

An application was made to vary condition 6 and permit outside seating for up to 90 covers between the hours of 7 a.m. and 11 p.m. Monday to Saturday and 7 a.m. and 11.30 p.m. on Sundays and Bank Holidays. Officers prepared a report on that application. At paragraph 7.15, the report notes that the Council considered that the presence of that amount of seating during a period of 15 to 16 hours a day would double the existing capacity of the restaurant and would raise fundamental objections on grounds of residential amenity. The report noted at paragraph 7.3.12. that:

“Therefore, given the number of covers proposed, the arrangement of the perimeter blocks as well as proximity to the residential units, it is considered that the proposed scheme would lead to an unacceptable impact on the existing living conditions of adjoining residential occupiers, and that their amenity would be worsen [sic] to a detrimental level. For that reason, the current submission fails to satisfy the requirements of Polices 7, 29 and 54 and the proposal is considered unacceptable in this regard. Condition 6 should not be varied.”

The application was refused on 8 September 2009 as the

“proposed external seating would, by virtue of its proximity to residential accommodation and number of covers proposed, unacceptably impact on the living conditions of the same residential occupiers, resulting in an increase in noise and general disturbance to the detriment of their amenity. As such the proposal is contrary to Policies 7, 29 and 54 of the Unitary Development Plan”.

Subsequently, an application for planning permission was made for a different ground floor unit, Unit 2 (the Del Aziz restaurant), comprised within the overall development. The application was for change of use of Unit 2 to retail use and also to use as a restaurant and café (Use Class A3). The officers’ report prior to the grant of planning permission noted that one of the issues was the impact on the amenities of neighbouring occupiers particularly in regard to noise and disturbance. In its description of the responses to the application, the report notes the concerns expressed that outdoor seating would be unbearable for noise and privacy reasons – and noted that if permission were granted it should be subject to a condition equivalent to condition 6 to which the planning permission for the other units was subject.

On 7 September 2010 planning permission was granted for development comprising a change of use of unit A2 (in Block A) to Retail (Use Class A1) and Restaurant & Café (Use Class 3). The permission was subject to Condition 3 which provided

“There shall be no outside seating area for Unit 2 without the prior written permission of the Local Planning Authority”

The reason given for imposing that condition was to ensure that no nuisance or disturbance was caused to the detriment of the amenities of future residential occupiers or the area generally.

The Defendant again contends that it is implicit in the grant of this permission for Unit 2 that the use of the open space in conjunction with the use of Unit 2 for Use Class A3 use (that is, the use of the Del Aziz premises as a restaurant) is permissible in the sense that it would not be a breach of development control so long as the restaurant complied with the conditions of the planning permission. The Claimant does not necessarily accept that the planning permission does have the effect of permitting development comprising the use of the square in conjunction with the use of the Del Aziz premises as a restaurant. That issue does not need to be decided in this case.

An application was made pursuant to section 73 of the 1990 Act in early 2011 to vary condition 3 by allowing for outdoor seating for 30 covers between 7 a.m. and 10 p.m. The officers’ report identified that one of the key issues was whether the proposed use would create the potential for excessive noise and disturbance resulting in an unacceptable diminution of neighbouring residential amenity. The report said this at paragraphs 7.8 and 7.9:

“7.8

Officers are of the opinion that condition No.6 is lawful and complies with the guidance contained within Circular 11/1995 with regard to the imposition of conditions. PPG24 advises that noise generating activities should be avoided in noise sensitive locations and should not be allowed to operate between the hours of 23.00hrs and 07.00hrs. The proposed hours of operation, as indicated above, would appear to be within the PPG24 restricted time frames. These timeframes do not, however, take into account the time needed to set out the area for occupation, and subsequent packing away at 10.00pm. The generated noise associated with setting out and packing away 15 tables and 30 chairs would, in officer’s opinion, be considerable and would undoubtedly be a disturbing activity. The nature of the square is such that any noise generated is, or perceived to be amplified by the hard surfacing of the courtyard floor and adjacent elevations of the masonry clad blocks. Notwithstanding the World Health Organisation’s advice reflected within PPG24, officer’s are of the view that this confined space would seriously struggle to accommodate acceptably any seating at any time of the day or evening. The area which is proposed to be occupied by the seating and tables would be very close to the elevations of the development which contain windows which serve habitable accommodation. As such, officers are of the view that the noise generated by the use of the seating area, as well as the noise associated with setting the area out and packing it all away at the end of trading would be to such a degree as to demonstrate harm to the quiet enjoyment of the neighbouring residential units, and as such, the proposal fails against Policy 7 of the Saved UDP.”

“7.9

In addition to the above, officers have serious doubts as to the enforceability of the proposed variation as regards to controlling the number of customers using the proposed seating area. Plans submitted in support of the proposed variation indicate the formal setting out of 15 tables and 30 chairs. Staff and customer circulation space between these tables and chairs has been indicated. This plan would suggest that the seating area would accommodate a maximum of 30 customers along with the comings and goings of staff serving food and drinks. The lawful end user of the associated Class A3 premises would be expected to be licensed to sell alcoholic beverages. Officers are not convinced that the noise generated by the seating area would not be increased further through the use of the area for smoking and ‘vertical drinking’. The submitted plan indicates a number of spaces large enough for customers to stand while smoking and/or drinking. This could potentially swell the numbers of customers within the seating area well over the 30 seated covers indicated on the plan. Officers consider the reasonable likelihood of staff managing this area successfully, insofar as continuously warding off customers looking for opportunities to stand and gather in this location, to be an unachievable prospect. With this in mind, the initial measure of proposing to formalise the area through providing tables and chairs would, in officers’ opinion, be intensified through its use by more customers stood up in the circulation spaces generating noise. As such, for this further reason, officers are of the opinion that the proposed variation would be unacceptable as the scope of the controls proposed are inadequate, and in any case, potentially unenforceable and contrary to the objectives of Saved Policy 7.”

The report noted that the officers considered that “no condition can be devised to ensure the acceptable operation of the seating area as it is the main principle of the noise that would be generated by this facility that the Council has found to be objectionable”. In August 2011, that application was refused.

There was then a further application made under section 73 of the 1990 Act for the grant of permission without having to comply with condition 3. The proposed condition would be varied for a temporary period of 12 months to allow external seating in a specified area with no more than 30 covers and only operating between 9 am. and 8 p.m.

The officer reported at paragraph 4.5, under the heading increased noise, that:

“The proposed variation of condition would increase the noise level within the communal area of Wingate Square, given there is currently no external seating. However as the outside seating would be restricted to 8pm it is considered that the proposed variation of condition would not significantly impact on the nearby residents amenity as 8pm is not an unreasonable hour of operation.”

The report also considered that the proposal would not impact detrimentally on amenity in relation to privacy, outlook and sense of enclosure (that is, amenity issues other than those relating to noise). The report noted that the grant of a temporary permission would enable the Environmental Health Department, if there were a significant number of credible complaints, to assess the complaints to see if the condition should be varied permanently. At paragraph 5.2 and 5.3, the report noted that:

“5.2

The previous history of the application is noted and acknowledged. However it is important to note that the applicant has reduced both the number of covers outside from 90 covers as proposed within application 09/01427/FUL and reduced the proposed operating time by five hours (3 in the morning and two in the evening). Given this it is considered the applicant has made sufficient amendment to proposed operating hours to reduce the impact on residential amenity, following the previously refused applications.”

“5.23

Allowing seating outside until 8pm is not an unreasonable hour and as it is considered that it would not have significant impact on the residential amenity of neighbouring properties. It is considered the use of a ‘trial run’ would enable the Council to monitor the effect of the development on residential amenity and after the 12 month period should the applicant re-apply for a permanent variation of condition, the Council would be able to make a well informed decision given the level of complaints that may be received throughout the trial run.”

The report recommended that the application should be granted. On 22 December 2011, the Defendant granted planning permission for the development subject to condition 3 which permitted external seating, within a specified area, for up to 30 covers and only operating between 9 a.m. and 8 p.m. for a temporary, 12 month period.

Complaints were made about the operation of the restaurant over a number of months. In May 2012, one of the residents, Mr Scattergood, complained to the planning department that the restaurant had exceeded the limit on covers and first 32 and then 37 covers were in place. An investigation into the alleged breach of condition was begun and Mr Scattergood was informed of that fact on 31 May 2012.

Further complaints were made. On 22 June 2012, Mr Scattergood wrote confirming that the restaurant always had a minimum of 32 covers and often up to 37 in breach of the condition. A neighbour of Mr Scattergood also wrote to complain about the breaches identified by Mr Scattergood.

The relevant planning officer, Mr Sawyer, wrote to the manager of the restaurant on 29 June 2014 referring to the fact that breaches of the condition had been reported to him. The breaches referred to involved having more covers than the 30 permitted and also the placing of seating in areas outside the permitted area.

On 29 June 2012, Mr Sawyer informed Mr Scattergood that he was monitoring the breaches. On 1 July 2012, Mr Scattergood wrote again to Mr Sawyer noting that the number of seats still exceeded the limits and, in addition, there were tables and chairs outside the specified area where external seating was permitted. He noted that the effect was to “appropriate the Square for the use of Del Aziz”.

Mr Sawyer wrote again to the manager of the restaurant on 10 July 2012 referring to breaches which he had observed on his visit to the restaurant and supplied photographic evidence of the breaches. On that day, Mr Sawyer also e-mailed Mr Scattergood to say that he had visited the premises and taken photographs of the seating placed outside the permitted area. He explained that he was monitoring the situation and that a reasonable period would have to be given to enable the restaurant to deal with the breaches but that he would monitor it and, if necessary, serve a breach of condition notice.

Further complaints were made by Mr Scattergood on other occasions later in July 2102 stating that the restaurant continually operated the external seating area in a way which enabled them to exceed the 30 cover limit. Mr Sawyer has made a witness statement dated 15 April 2004. He indicated that no further action was taken after the end of July 2102 although he indicated that the enforcement case was still open.

In my judgment, the complaints that were made were complaints to the Council’s planning officers about breaches of the conditions in terms of exceeding the number of permitted covers and placing seating outside the permitted area. They were not expressly stated to be complaints about noise nuisance. Further, no specific complaint of noise was made during the period of temporary permission to the Council’s environmental health officers. Despite Mr Wald’s submissions on behalf of the Claimant, I do not consider that the letters referred to were complaints about noise, still less, about noise generated by the development when operating in accordance with the condition. Rather, they were complaints which had been made alleging breach of the condition to which the temporary grant of permission was subject.

On the expiry of the temporary permission, the interested party then applied for permanent planning permission with a condition 3 which would permit outdoor seating within a specified area for up to 30 covers and operating between 9 a.m. and 8 p.m. A planning officer, Mr McFerran, prepared a report on the application. The report is a brief report. It described the site and the proposal. The report summarised the planning history, the objections that had been received and the comments of the Council’s noise enforcement team to the effect that they had no records of any noise complaints being made and as such had not raised any objections.

The officer then addressed the objections and gave his view on those objections. He then noted again that the noise enforcement team had no records of noise complaints. That is correct as appears from the conclusions at paragraph 30 above. The officer then expressed his views on the comments on noise made in the objections and explains why he did not consider that they demonstrated that there was an issue about noise during the permitted hours of operation of the external seating as the objections referred to noise after midnight or the noise of children playing in the square.

Then at paragraphs 5.5 to 5.7, the report says this:

“5.5

Council policy seeks to protect residential amenity, however in any mixed-use development it is considered that it will be inevitable that there will be some conflict between uses and that often this conflict will be regarding noise. In accepting this fact it is considered that the Council is required to minimise any detrimental impact on neighbouring property. The specific controls over capacity and the hours of operation which are built into the wording of this condition are considered to be sufficient in minimising this impact.”

“5.6

The hours of operation are not considered to be anti-social whilst restricting the capacity of the covers to 30 ensures that there are no risks of the area of outdoor seating growing uncontrollably. It is noted that two separate objectors have raised concerns regarding compliance with the hours of operation and the number of covers. However these observations were not forwarded to the Council for further investigation. Should either of these controls be breached then the Council maintains power to take enforcement action.”

“5.7

It is also noted that one of the objectors is concerned that this application is at odds with the Council’s Special Saturation Policy which was introduced to limit anti-social behaviour in the Clapham area which is associated with the concentration of drinking establishments. However, this application does not create an additional drinking establishment in the Clapham area and the operational hours of the outdoor seating would terminate at 2000 daily before the hours during which most of this anti-social behaviour occurs.”

Paragraph 5.6 of the report is not correct. There had been complaints. They had been forwarded to the enforcement team. The Council had commenced an investigation and that investigation was not concluded at the time of the officer’s report.

In a witness statement made for these proceedings, Mr McFerran very frankly and fairly acknowledges the error. He says this at paragraphs 35 and 38 of his witness statement:

“35.

In paragraph 5.6 of my report I had highlighted that if the number of covers or hours of operation were to be breached, the Council would have the power to take enforcement action. I had also said in the same paragraph that the complaints about the number of covers and hours of operation were not forwarded to the Council for further investigation. I did not know at the time I prepared my report that the planning enforcement team had in fact already opened a case. Usually when the template for a draft delegated report is generated, it will bring up an automatic cross reference to an enforcement case and this would act as a prompt to contact the enforcement team. I am unable to say now whether the flag to the enforcement case did not come up on the system or whether it did come up but I did not notice it.”

and

“38.

I would accept therefore that the reference in paragraph 5.6 of my report to complaints about the number of covers and hours of operation not having been forwarded to the Council for further investigation was factually inaccurate certainly as regards the making of complaints about the number of covers.”

The application and report was considered by a principal planning officer in the Defendant’s planning team, Ms Sarah Lowes. On or about 5 February 2013, she granted the application made under section 73 and granted a fresh planning permission for a change of use of Unit A2 to retail, and restaurant and café use but with a varied condition 3 which provided that:

“The outdoor seating area shall not exceed that shown on drawing ref: 42.005, shall be for a maximum of 30 covers pertaining to the established A3 use of Unit 2 (Block A) and shall only operate between the hours of 0900 and 2000 weekdays and weekends”.

That is the decision challenged in these proceedings. Against that background, I turn to the issues that are raised.

In the light of the grounds of claim, the Claimant’s skeleton argument and the submissions made at the hearing, the following are the essential issues that arise:

The first issue concerns the claim that the grant of planning permission was granted by an officer who lacked authority to make the decision. It is appropriate first to describe the legal framework and then to consider the factual circumstances by which the decision came to be made before considering the issues that arise.

Section 101 of the Local Government Act 1972 (“the 1972 Act”) empowers a local authority to make arrangements for the discharge of its functions by committees, sub-committees or officers. The material provisions for present purposes are section 101(1) and (2) of the 1972 Act (subsections 101(1A) and (b) and the remainder of the section are not material). They provide that:

“101.— Arrangements for discharge of functions by local authorities.

(1)

Subject to any express provision contained in this Act or any Act passed after this Act, a local authority may arrange for the discharge of any of their functions—

(a)

by a committee, a sub-committee or an officer of the authority; or

(b)

by any other local authority.

…..

“(2)

Where by virtue of this section any functions of a local authority may be discharged by a committee of theirs, then, unless the local authority otherwise direct, the committee may arrange for the discharge of any of those functions by a sub-committee or an officer of the authority and where by virtue of this section any functions of a local authority may be discharged by a sub-committee of the authority, then, unless the local authority or the committee otherwise direct, the sub-committee may arrange for the discharge of any of those functions by an officer of the authority”.

Section 101 therefore permits the authority to make arrangements for the discharge of their functions. They may do so by arranging for the function to be exercised by a committee, a sub-committee or an officer. It is clear from section 101(2) that where a committee or sub-committee is authorised to discharge a function, it may itself decide to arrange for the exercise of the function by an officer. If, however, the Council has arranged for a function to be exercised by a particular officer or officers, section 101 of the 1972 Act does not itself permit those officers to sub-delegate the carrying out of the function to other officers.

Secondly, and alternatively, there are occasions when either there is no express power to authorise a particular officer to exercise particular functions, or where the power to exercise such functions has not, in fact, been delegated to a particular officer. Depending on the nature of the function in question, one officer may be regarded as having authority to act on behalf of another officer who is authorised to exercise the function. In Provident Mutual Life Assurance v Derby City Council [1981] 1 W.L.R. 173, section 151 of the 1972 Act provided for the appointment of an officer to manage the council’s financial affairs. Certain decisions, namely the forming of an opinion that a building had been completed for rating purposes, were taken by an officer, not the treasurer, and where there had been no formal authorisation of, or delegation of power to, that other officer. The House of Lords held that the function in question was administrative in character and it could not have been the intention of Parliament that the treasurer had to perform the function of forming the opinion personally and Parliament intended the treasurer to be able to authorise other officers to act on his behalf.

The factual situation here is as follows. The Council has adopted a Constitution. Part 1 deals with introductory matters and the Council’s ambitions and then includes provisions governing councillors, the rights of the public, a general description of how decisions are taken, and provisions governing the mayor, the council itself, scrutiny of decisions and committees. Section 10.1 of Part 1 recognises that the Council will appoint a planning applications committee to discharge the functions, powers and duties of the Council in relation to planning and development control matters. Part 2 of the Constitution then sets out responsibility for functions. Section 1 of that Part begins by describing, in detail, the functions of particular committees including at section A, the planning applications committee. The material parts are A(2) and A(8) which provide as follows:

“(2)

Applications which are recommended for approval where an objection to the current proposal has been received which is based on material planning grounds, other than those applications where, in the opinion of the Divisional Director Planning or the Head of Development Control:

(I)

The objection can be overcome by the imposition of an appropriate condition, and/or

(II)

Where the application clearly complies with the relevant planning policies in which case the decision may be taken by officers.”

and

“(8)

Applications recommended for approval where it is proposed to grant permission for a change of use to Class A3 as defined by the Town and County Planning (Use Classes) Order 1987.”

That section is dealing only with the allocation and description of functions of the committee. It does not, of itself, deal with the question of which officers (other than the Divisional Director Planning or Head of Development Control referred to in A(2)) are also authorised to take the decisions referred to in those sub-paragraphs. It is section 4 of Part 2 of the Constitution which deals with the Scheme of Delegation and the authorisation of officers.

Section 4 of Part 2 of the Constitution is an oddly drafted document. It is headed “Part A: Scheme of Delegation”. It begins with general principles. Then it deals with the operation of delegated powers within departments. There is then a paragraph on consultation followed by a long paragraph (numbered 4) and entitled preamble. There is then a heading “Notes to Scheme of Delegation” which sets out various points. These are later described as guidance notes. The relevant note is note 4 which provides that:

“4.

An officer to whom a power, duty or function is delegated may nominate or authorise another officer to exercise that power, duty or function, providing that officer reports to or is responsible to the delegator”.

There then follows a section which is said to be a reproduction of safeguards for the authorisation of subordinate officers to discharge particular functions. After these sections, come sections on a corporate scheme of delegation and then departmental schemes of delegation. The relevant one is (e) entitled “Executive Director of Housing, Regeneration and Environment”. The material parts provide as follows:

“The following delegated powers are subject to the Executive Director of Housing, Regeneration and Environment vesting, in addition to those powers delegated by the Council to the Officers specified in this Scheme of Delegation, similar delegated authority to other appropriate officers. Any delegation of powers made by the Executive Director of Housing, Regeneration and Environment, in addition to those specified in this Scheme of Delegation, must be made in writing.”

and

“3.

The authority to determine town planning applications and to discharge all other functions concerning planning and development control (including but not limited to advertisement control, listed building and conservation area control and tree preservation orders) and related matters, including enforcement decisions and actions, as set out in paragraph 1 above, is delegated to the Divisional Director (Planning, Regeneration and Enterprise).”

In other words, that section appears to recognise two separate sources of authorisation for officials. First, the opening words appear to envisage a system whereby the Executive Director may in writing vest authority in a person of his choosing. That provision is not in issue in this case and I express no view on the lawfulness of that provision or its compatibility with section 101 of the 1972 Act. The second is the authorisation of particular directors for particular functions including the authorisation of the Divisional Director (Planning, Regeneration and Enterprise) to take planning decisions.

What the Council says occurred here is this. The route by which the principal planning officer, Ms Lowes, was authorised to take the decision in this case was as follows. The Divisional Director was authorised under section 4(e)(3) to make the relevant decision. By virtue of note 4, an officer authorised or nominated by that Director, and who reported to or was responsible to that Director, could also exercise the power.

In the present case, the Divisional Director (Planning, Regeneration and Enterprise) was Ms Alison Young. By a document dated 11 December 2012 and signed by her she nominated or authorised a number of planning officers to take decisions. The wording of that authorisation is as follows:

“Pursuant to the said scheme of delegation I hereby delegate to you, Sheree Bennet, Chris Dale, Richard Saunders, Nicholas Linford, Gillian Nicks, Robert O’Sullivan, Andrew Mulindwa, Sarah Lowes, Helen Miles, Iwan Richards, David Smith and Paul Wilford, authority to make all the said decisions and exercise all powers which are otherwise reserved to me as the Divisional Director for Planning, Regeneration and Enterprise.”

The application was considered by Mr McFerran who prepared a report and recommendations. Ms Lowes was the officer who considered that report. It appears that the Council has now lost the paper copy of the relevant planning file. There is no evidence before me as to what parts of the planning file are retained electronically. Ms Lowes has, however, been able to make a witness statement giving a description of her practice and her recollection of what she did in this case. Ms Lowes says at paragraphs 5 and 6 of her statement that:

“5.

I am very familiar with the terms of reference to the planning applications committee, because I am dealing on a daily basis with preparation of reports either to committee or for delegated powers. Most of my personal caseload relates to larger schemes which generally will go to committee in any event. However, the officers that I supervise deal with a wide range of types of application and one of the points that I always check when I am reviewing their work is whether the application would need to go to committee.”

“6.

I considered the draft report in this case and I was content to approve it under delegated powers as the officer exercising those powers.”

The first question is whether Ms Lowes was authorised under arrangements made by the Council under section 101 of the 1972 Act to take the decision that this application should be granted. That depends on whether the Council’s scheme of delegation, properly construed, authorises officers, including principal planning officers such as Ms Lowes, to take decisions on applications for planning permissions (including decisions that objections can be overcome by the imposition of conditions). Secondly, if Ms Lowes was not authorised to take the decision under the scheme of delegation, the question then arises as to whether the Divisional Director could herself authorise a principal planning officer to exercise this function on her behalf, applying the reasoning in the decision in Provident Mutual Life Assurance v Derby City Council [1981] 1 W.L.R. 173.

The Claimant contends, for a variety of reasons, that the scheme does not authorise principal planning officers such as Ms Lowe to take decisions on applications for planning permission. Mr Wald, for the Claimant, submits that the basis upon which the Council says that Ms Lowes was authorised is a combination of the authorisation of the Divisional Director under section 4(e) and her subsequent delegation of authority pursuant to note 4 of the scheme of delegation. Mr Wald submits that the scheme of delegation does not in fact authorise, or permit the authorisation of a principal planning officer, such as Ms Lowes, to take decisions for two reasons. Note 4 in section 4 of the scheme of delegation is intended as guidance. Mr Wald submits that it is not capable of being the source of a power of authorisation. Further, note 4 provides a power for one officer (here the Divisional Director) to nominate or authorise another officer (here a principal planning officer) to take a decision. Section 101 of the 1972 Act, however, does not permit of a scheme where a function is delegated to one officer, and that officer is allowed to delegate or authorise another officer to perform a function. Furthermore, Mr Wald submits that that is what happened here, and was understood by the officer concerned (the Divisional Director) to be what she was doing. In the document signed by her, she states that “I hereby delegate to you” and then names a series of individuals who are authorised to exercise certain functions.

There is considerable force in Mr Wald’s submissions. Ultimately, however, in my judgment, the scheme of delegation, properly construed, is one which itself authorises officers such as principal planning officers, to exercise certain functions and does not violate the provision of section 101 of the 1972 Act. So long as the scheme as a whole either identifies the officers, or sets out the process by which the officers authorised to exercise certain functions can be identified, the scheme will, in my judgment, be compatible with section 101 of the 1972 Act. In the present case, reading the scheme as a whole, the intention was that a certain group of officers were authorised to exercise planning functions. Those officers were the Divisional Director and those officers who reported to, or were responsible to, the Divisional Director provided that the Divisional Director had approved them for that purpose. The scheme was not intending to confer a power on the Divisional Director to sub-delegate powers given to her. The scheme was itself authorising a group of officers – the Divisional Director and those under her direct control (providing that they were approved for that task by the Divisional Director) – as the officers authorised to exercise the relevant planning functions. The requirement that the officer be nominated by the Divisional Director was an additional requirement to be satisfied by that officer in order to be authorised – it was not an attempt to confer a free-standing power on the Divisional Director to delegate or authorise officers of her choosing.

Here Ms Lowes was one of the officers authorised by the scheme of delegation to act. She was an officer who reported to, or was responsible to the Divisional Director and she had been approved by the Divisional Director for the purpose of exercising the relevant functions. As such, Ms Lowes was authorised by the scheme of delegation to take this particular decision.

If the scheme of delegation had not in fact itself authorised the principal planning officer (subject to nomination by the Divisional Director) to exercise the function, and if, in truth, the arrangements involved the Divisional Director herself deciding to sub-delegate to an officer who would act on her behalf, the question would then arise as to whether that authorisation was lawful, relying on the authority of Provident Mutual Life Assistance v Derby City Council [1981] 1 W.L.R. 173. The argument would be that it could not have been envisaged that a Divisional Director would be able personally to take all the decisions delegated to her. The nature of this decision, in essence approving a variation of a condition, was one of those decisions which one officer could legitimately arrange for another officer to take on her behalf. There would, in my judgment, be some difficulty with finding that to be an acceptable route for holding that the Divisional Director could delegate the function entrusted to her to another officer such as a principal planning officer. The function is an important one. It involves not merely forming an opinion but granting an application for planning permission for development without having to comply with conditions. In the event, as I have concluded that the scheme of delegation properly construed does itself identify the officers who are authorised to exercise the relevant functions, it is not necessary to express a concluded view on this issue.

For completeness, the High Court in R (Blow up Media UK Ltd.) v London Borough of Lambeth [2008] EWHC 1912 (Admin.) has already considered the same provision of the same scheme of delegation of the same council. There, acting under note 4, the relevant Director stated that he was delegating authority to make certain decisions. The judge considered that the scheme of delegation, with authorisation being provided under note 4, was lawful. It is not clear whether the judge reached that conclusion on the basis that the scheme of delegation itself identified the officers who were authorised (thus the matter was dealt with under a scheme complying with section 101 of the 1972 Act) or whether he considered that one officer could lawfully delegate the function of granting planning permission to another. He relied upon two cases in particular. First, he relied upon Cheshire County v Secretary of State for the Environment [1988] JPL 30. That latter case, in my judgment, involved a finding by Schiemann J. (as he then was) that arrangements had been made under section 101 of the 1972 Act for the discharge of the function in question by solicitors other than the county solicitor. Reliance on that case suggests that the judge essentially considered that the scheme of delegation in issue here did involve the making of arrangements for authorisation of officers in accordance with section 101 of the 1972 Act. Read in that light, the judgment is consistent with my finding that the scheme of delegation involved a scheme whereby the officers authorised to exercise the function were identified by the scheme itself provided that they were officers who reported to the Divisional Director and that Director had approved or nominated them. Sir Michael Harrison also relied upon the decision in Provident Mutual Life Assurance. That would suggest that the judge considered that the situation was one where one officer could himself lawfully delegate the exercise of the relevant function to another officer. For the reasons that I have given, I do not analyse the situation in this way and I do not consider it necessary to resolve the question of whether one officer could lawfully sub-delegate to, or authorise, another officer to exercise the relevant function in this case if the scheme of delegation itself did not authorise that other officer to act.

I would make one further observation. The Council’s Constitution, including its scheme of delegation, is not, in my judgment, well structured or clearly drafted. It does not perform the task expected of a constitution which is to provide for a clear and comprehensible allocation of functions between bodies, and to identify which bodies, officers or groups of officers are authorised to exercise particular functions. As such, it does not achieve its own aims of ensuring that the way in which the Council operates and decisions are made is transparent which I understand to mean is capable of being readily understood by individuals. Amendments and improvements to the Constitution would be likely to minimise the risk of future legal challenges to the legality of decisions and reduce the risk of courts in future finding that the arrangements operated by the Council are not, in fact, soundly based in law. I note that Sir Michael Harrison, at paragraph 80 of his judgment in R (Blow up Media UK Ltd). v London Borough of Lambeth, made criticisms of other aspects of the scheme of delegation and indicated that the facts of that case demonstrated that the arrangements were unsatisfactory.

The remaining challenges to the validity of the authorisation can be dealt with relatively briefly. First, Mr Wald submits that, in law, the application made under section 73 of the 1990 Act results in the grant of a separate planning permission with different conditions. In the present case, that is a separate planning permission for the change of use of Unit 2 (Del Aziz’s restaurant) to Use Class A3 use. As such, he submits, that is a matter that falls within Section 1 A(8) of the constitution and must be considered by the planning applications committee and cannot be considered by an officer. It is correct that the section 73 procedure leads to the grant of a fresh or separate planning permission (in this case for a change of use to use for Use Class A3 uses). However, the only issue that the decision-maker can consider is “the question of the conditions subject to which planning permission should be granted”: see section 73(2) of the 1990 Act. In other words, section 73 provides a means by which applications for variation of conditions can be made. The substantive issue is the question of what conditions should be attached to a planning permission. The form in which that application is resolved is by the grant of a planning permission with the different conditions attached. The question is whether section 1 A(8) was intended to apply to such application. In my judgment, it was not. Section 1 A(8) was intended to ensure that consideration of applications where the substantive issue was whether a change of use to Use Class A3 use should be permitted was to be the responsibility of the planning applications committee. It was not intended to include situations where the substantive issue was whether conditions attached to an existing permission should be varied (albeit that the mechanism for giving effect to that decision would be the grant of a separate planning permission for the material change of use with the different conditions attached).

Secondly, Mr Wald submits that note 4 of the scheme of delegation, if it encompasses authorisation of planning officers, fails to respect the safeguards for the authorisation set out in part 5 of the scheme of delegation (which itself forms Part A of section 4 of the Constitution). In particular, Mr Wald focussed on the first and third safeguards, namely that:

“The greater the extent to which the discharge of the function affects individual rights or requires the exercise of discretion or professional judgment, the less likely it would be lawful to authorise the subordinate to act.”

and

“The degree of control maintained by the senior officer maintained by the senior officer over the subordinate may be a material factor in determining the validity of the authorisation. In cases where significant discretion or judgment must be exercised, a high degree of control should be retained.”

The challenge was expressed to be that note 4 to the scheme of delegation conflicted with these provisions. It was not clear on what basis it was said that the provisions included in one part of Part 4 of the Constitution could be used to assess the validity of other parts. In any event, in my judgment, note 4 does not conflict with these principles. Note 4 deals with nomination by one officer of persons who report to or are responsible to that officer. The arrangements in note 4 are capable of operating in accordance with the provisions and ensuring that officers are only nominated if they are appropriate officers to carry out the relevant functions. Certainly, in this case, the Divisional Director only authorised a number of senior officers to exercise the function of approving applications. The officer who took the decision, Ms Lowes, was a principal planning officer. Neither the provisions of note 4 nor the particular authorisation in this case involved a breach of the safeguards governing authorisation.

The Claimant also contended that no officer had addressed their mind to, or formed an opinion as to, whether the matter should be referred to the planning applications committee rather than being dealt with by an authorised officer and contended that this was contrary to paragraph A(2) of section 1 of the Constitution. In my judgment, what that paragraph requires is that the Divisional Director (or other authorised officer) forms a view that the objection to the proposed development can be overcome by an appropriate condition. That is what the officer did here. The proposal was that the restaurant be allowed to operate without complying with condition 3 of the planning permission which prohibited external seating. The objection was, essentially, that that would have an unacceptable impact on residential amenity including, in particular, giving rise to undue noise. The officer considered that that objection could be overcome by a condition permitting external seating but within a limited area, for limited hours and subject to a maximum number of covers. That is what Mr McFerran considered to be appropriate and Ms Lowes, the principal planning officer, approved that. Consequently, it was not necessary to refer the application to the planning applications committee. Mr Wald submitted that there was nothing to suggest that there had been adequate consideration by any officer as to whether the application should go to committee. However, it is clear from the statement of Mr McFerran that he was familiar with the terms of reference of the planning applications committee. He considered that consideration of whether the matter should be referred to the committee was inherent in the consideration of whether the objections to the application could be dealt with by way of condition. It is also clear from Ms Lowes’ witness statement that she was familiar with the terms of reference of the committee, familiar with which matters had to go to committee and always checked whether or not an application would need to go to committee. She decided that the application could be approved and did not need to be referred to the planning applications committee. In the circumstances of this case, the officers considered that the objection could be dealt with by way of condition and, consequently, considered that the matter did not need to be referred to the committee. That approach is lawful and accords with paragraph A(2) of section 1 of the Constitution.

Finally, Mr Wald on behalf of the Claimant contended that the objection here was to the condition permitting external seating and that it was irrational or perverse for an officer to conclude that an objection to that condition could be overcome by imposing the condition itself. That, however, is not a correct analysis of either the nature of the application or, more importantly, the wording of paragraph A(2). As explained above, the application was for permission to develop land without complying with a condition attached to a previous planning permission, in this case, condition 3 prohibiting external seating save with the prior written permission of the authority. The objection was that that would have an unacceptable impact on residential amenity. The officer considered that that objection could be overcome by a condition limiting the area where external seating would be permitted, the hours of operation and the maximum number of covers. If the relevant officer was of the opinion that the objection could be overcome by the imposition of a condition, that would mean that the matter could be dealt with by the officer and did not need to be referred to the committee. That was what happened here. There was nothing unlawful or unreasonable in Ms Lowes, the relevant officer, concluding that the matter should be dealt by an officer and not did not need to be referred to the planning applications committee.

In relation to ground 2 of the claim, the Claimant contends in essence that the Defendant failed to have regard to a material consideration in that it granted planning permission whereas the earlier grants of planning permission and earlier officer reports had established that no form of outdoor seating was acceptable at any time of the day or night. The Claimant describes this as an “in principle objection” to external seating. Alternatively, the Claimant contends that that “in principle objection” should be seen as equivalent to a previous inspector’s decision on a materially similar application for planning permission so that any departure from the earlier “in principle” decision would be inconsistent and so unlawful unless explained, relying upon authorities such as North Wiltshire District Council v Secretary of State for the Environment (1992) 65 P & C.R. 137, and R (Fox Strategic Land and Property Limited v Secretary of State for Communities and Local Government [2012] EWCA Civ. 1198.

In the present case, properly analysed, the position is this. The Defendant first considered an application for planning permission for redevelopment of the whole site. As part of that process, a condition was imposed, considered to be appropriate on the material then available, that there was to be no external seating in connection with the two units (Unit 1 and 3) which had permission for restaurant and café use. When another unit (Unit 2) was also given planning permission for a material change of use to use as a restaurant, that permission was made subject to a similar condition.

An individual may make an application for the grant of planning permission without complying with conditions attached to a previous planning permission and the authority has power to grant such an application: see section 73 of the 1990 Act. In the present case, various applications were made at various times to vary the conditions relating to external seating. The fact that conditions had been attached when the various planning permissions were granted would not, itself, be a reason for refusing such applications. Rather, the applications would have to be considered on their facts and their merits.

In the present case, one application, relating to the condition prohibiting external seating in condition 6 attached to Units 1 and 3, would have involved permitting seating for up to 90 covers for up to 15 to 16 hours a day. That was refused after a consideration of the impact of that proposed variation on, amongst other matters, the residential amenity of neighbours and occupiers. The reasons for the refusal were that the proximity of the external seating to residential accommodation and the number of covers proposed would result in an increase in noise and general disturbance to the detriment of residential amenity. Another application was made for up to 30 covers during the hours of 7 a.m. and 10 p.m. That application was refused and the reason given was that external seating between the hours of 7 a.m. and 10.00 p.m. would, by virtue of the proximity to residential accommodation, result in an unacceptable increase in noise. In the course of considering that particular application, the officers who were involved in considering that particular application expressed the view that they considered that the space would “seriously struggle to accommodate acceptably any seating at any time”. That comment does not reflect an “in principle objection” on the part of the Defendant to permitting external seating which could not be departed from. Rather, it is a comment reflecting the views of particular officers who dealt with one particular application.

An application was then made to vary the condition to permit external seating during different and reduced hours (9 a.m. to 8 p.m.). The officers who considered that application were aware of the planning history and the earlier applications. The officers considering this application were of view that the more limited hours of operation were not unreasonable and would not have a significant impact on residential amenity. They proposed granting a temporary permission for 12 months to enable the Defendant to monitor the effect of the development on residential amenity and, if the applicant applied for a permanent permission with the varied condition, to make a well-informed decision on that application. There was nothing unlawful in the Defendant deciding to proceed in that way. The officers were considering the exercise of the statutory discretion to vary conditions attached to a planning permission. The Defendant had power to do so under section 73 of the 1990 Act. They were not departing from any “in principle objection” in proceeding in that way. Rather, they were considering an application on its particular facts. The application was materially different from earlier applications. Similarly, provided that the subsequent application for a permanent permission was considered lawfully, the fact that the Defendant might conclude that external seating should be permitted for a limited number of hours and covers within a specified area would not of itself involve any unlawfulness. It would be a matter of planning judgment for the Defendant to determine whether or not that particular application, given its particular facts, should be granted.

The Claimant also contends that the Defendant failed to have regard to a material consideration, namely, the complaints about breaches of the condition attached to the temporary permission. There is no doubt that such complaints were made during the period May to July 2012. There is also no doubt that the officer did not have regard to those complaints when he took the decision as he was unaware of them. As the officer fairly accepts in his written evidence, paragraph 5.6 of his report, which states that observations about compliance with the conditions had not been forwarded to the Council for investigation, is incorrect. Complaints had been made and passed to the Council and the enforcement team had, in fact, commenced an investigation.

Mr Reed, on behalf of the Defendant, submits that these complaints were not, in fact, material considerations as they were insignificant or unimportant (relying on Bolton Metropolitan Borough Council v Secretary of State for the Environment and Greater Manchester Waste Disposal Authority (1990) 61 P. & C.R. 343) or, alternatively, that a remedy should be refused as a matter of discretion. Mr Reed relied upon the fact that the complaints did not relate to noise, which is the specific concern of the residents, and, in particular, that there was no evidence of further complaints after the end of July 2012.

The first question is whether the complaints relating to the alleged breaches of the condition were material planning considerations. In my judgment, on the facts of this case, they were. First, they formed part of the planning history of the site. Secondly, planning officers had themselves indicated when dealing with an earlier application to vary the condition that there were concerns about the enforceability of conditions relating to external seating and whether it would be possible to control the number of customers using the seating area. At that stage, the principal concern was the potential increase in the number of customers using the space. Here, the concerns were about the fact that seating was placed outside the permitted area and that there more than 30 covers. Both of these factors are, however, also potentially relevant to the ability to control any impact on residential amenity by enforceable conditions. Thirdly, and importantly, the permission was initially granted for a temporary period of 12 months so that the Defendant could monitor the effect of the development on residential amenity and make what it described as a well-informed decision given the level of complaints that might be received throughout the trial period. Fourthly, the planning officer, Mr McFerran, states that that the system is intended to ensure that there is an automatic cross-reference to an enforcement case and this would prompt the officer to contact the planning enforcement team. Had that system worked properly, Mr McFerran, would it seems from his evidence, have sought information about the complaints. In other words, it appears implicit in his statement that he would have regarded the complaints as a potentially material consideration. Finally, Mr McFerran treats the absence of complaints as a relevant consideration in his report. The natural implication is that complaints, or the absence of them, were relevant material considerations. For all those reasons, in my judgment, the complaints made during the currency of the temporary permission were material considerations that the Defendant should have taken into consideration in deciding whether or not to grant a permanent planning permission with a varied condition permitting external seating.

The next question is whether the Defendant would have reached the same decision even if it had taken the complaints about the breaches of the condition into account. If so, or if the matters were insignificant, a court may refuse a remedy as a matter of discretion: see Simplex G.E. (Holdings) v Secretary of State for the Environment and the City and District of St. Albans (1989) 57 P. & C.R. 306. In my judgment, the failure to have regard to the complaints was a material and significant error. Furthermore, it is not possible to say that the Defendant would have come to the same decision if the relevant officer had had regard to the complaints. As Mr Reed fairly accepted, it would not be possible to say that the Defendant would have had to grant the permission as any refusal based on the unenforceability of the conditions would be unsustainable. Rather, the question of whether the proposed condition would be enforceable would require a fact-sensitive analysis. That may involve considering the particular nature of this development, the potential for noise, the proximity of the proposed external seating to residential areas and the enforceability of the proposed condition and whether the condition could be effectively policed to control the number of persons using the area as a restaurant and to ensure that the seating did not extend beyond the proposed permitted area.

For completeness, I note that Mr McFerran, the planning officer who prepared the report, expresses his opinion in a statement made in these proceedings on 11 April 2014, that he does not consider that he could have proceeded to recommend refusal on the basis of the earlier complaints even if he had been aware of them and taken them into account when he made his report in February 2013. Views expressed in statements made in the course of litigation as to how a decision-maker might have acted are rarely, if ever, of assistance in considering whether a decision might have been different if the decision-maker had considered the issues properly. Such statements start from a position where a decision has been taken and carry with them the risk that they seek to justify or rationalise the decision already taken rather than seeking to assess whether or not matters might, not would, have been different if the decision-making process had been carried out properly at the time that the decision was taken.

For the reasons given above, it is not possible, in my judgment, to say that the decision of the Defendant would have been the same even if they had taken this material consideration into account. In those circumstances, the planning permission should be quashed and it would not be appropriate to refuse a remedy as a matter of discretion.

This is a challenge to the grant of a permanent planning permission subject to a condition allowing external seating within a specified area for up to 30 covers and operating between the hours of 9 a.m. and 8 p.m. The decision to grant the permission was taken by a properly authorised officer. The officer was entitled to conclude that this application was sufficiently different from earlier applications to justify the grant of a temporary planning permission to enable the impact on residential amenity to be assessed. That was a matter, essentially, of planning judgment for the Defendant. In considering the application for permanent planning permission, however, the Defendant’s decision-making process was flawed as the officer concerned failed to have regard to a material planning consideration, namely the complaints about breaches of the condition relating to external seating made during the currency of the temporary permission. The decision to grant the permanent planning permission with a substituted condition relating to external seating will therefore be quashed. The Defendant will therefore have to consider the application in the light of the development plan and all material planning considerations including the complaints about the breaches of condition. It will be a matter for the planning judgment of the Defendant as to whether the application for permanent planning permission should be granted or refused.