Mario Di Ciacca V. The Scottish Ministers

Appellant: Agnew of Lochnaw, Q.C.; Morton Fraser

Respondents: Crawford; Solicitor to the Scottish Executive

2 April 2003

[1]In 1988 an application was made for planning permission for a change of use of a gift shop in Oban to a wine bar. The shop premises comprised the ground floor of a three storey building. The two upper floors were in residential occupation and were owned by the proprietors of the shop. The neighbouring premises to the south were also shops with residential properties on the upper floors. The neighbouring property to the north was a hotel. Objections to the application were lodged by neighbouring proprietors. One of the principal areas of concern was the threat to residential amenity through late night disturbance. Planning permission was refused on the ground that the development was likely to give rise to street noise and other late night disturbance detrimental to the amenity of neighbouring residential properties, and therefore did not comply with the relevant local plan policy covering bad neighbour development. That decision was contrary to the advice of the Director of Planning, who had recommended approval subject to conditions which were designed to protect residential amenity and covered such matters as closing times and live music. Those suggested conditions were not however acceptable to the applicant, who maintained that closing times were more appropriately determined by the licensing board.

[2]The refusal of planning permission was then appealed to the Secretary of State, and the appeal was determined by a Reporter. In his decision, dated 21 February 1989, the Reporter reached the following conclusions:

"6. ... I consider that the determining issue in this appeal is whether or not the threat to residential amenity is unreasonable, bearing in mind the edge-of-town-centre location.

7. ... I consider that expectations of residential amenity at this location (on the main seafront in a main resort with its associated activity) do not warrant the same degree of restriction as, say, in a quiet suburb. I consider that a properly controlled wine bar would add little to the inevitable level of activity at this location for which it is a broadly appropriate use.

8. The proximity of third party residential property, at first and second floor level directly to the south, nevertheless justifies caution. The possibility of control by the licensing board does not relieve a planning authority of any responsibility to control conflicts of use. Whereas street noise may require a response by the police, it remains competent for a district council to anticipate such symptoms and to impose appropriate conditions on proposals to which they can fairly be attributed (e.g. through the arrival and departure of patrons). I find that the conditions proposed by the Director of Planning represent the necessary level of concession to residential amenity.

9. I have given careful thought to your clients' resistance to such conditions. They are however the only way in which this development can be rendered acceptable, and it is for your clients to determine whether or not the development should proceed on this basis, or not at all.

10. Therefore, in exercise of the powers delegated to me, I sustain the appeal and grant planning permission for the use of the appeal property as a wine bar subject to the following conditions:-

...

2. The wine bar should be open to the public only between the hours of 11.00a.m.-11.00p.m. (Sunday to Thursday inclusive) and 11.00a.m.-12 midnight (Friday and Saturday)."

[3]In 1990 the wine bar opened. In 1991 an application was made for planning permission for the removal of condition 2, presumably under section 28A of the Town and Country Planning (Scotland) Act 1972 (as amended), (subsequently re-enacted as section 42 of the Town and Country Planning (Scotland) Act 1997). The application was refused. A further application was made in 1994. It too was refused. An appeal against that refusal was determined by another Reporter. In his decision, dated 11 May 1995, the Reporter repeated what had been said in the first three sentences of paragraph 8 of the 1989 decision, and continued:

"The next main issue is therefore whether the proposal would be inimical to the living conditions of people in the vicinity. This is a mixed residential and commercial area and I endorse the previous Reporter's conclusions about the appropriate level of protection of residential amenity and the use of planning control for that purpose. Despite your client's confidence that Coasters wine bar is an innocuous neighbour, falsely blamed for incidents that have nothing to do with it, and despite my making allowances for possible exaggeration of some details ... I find the comments of neighbours about the effects of the wine bar on their residential amenity to be generally credible ... It is apparent that the existence of a stairway between the wine bar and the nearest flat in other occupation has not protected that flat from disturbance. It is therefore a simple matter to conclude that any extension of opening hours would further harm the living conditions of neighbours, and hence the proposal is contrary to policy COM 4."

The appeal was therefore refused. In 1997 a third application was made for the removal of condition 2. It too was refused.

[4]In 2001 a fourth application was made for the removal of condition 2. Three matters were put forward as constituting new material considerations: a downturn in the tourist trade in recent years; the introduction of a town centre CCTV street surveillance system, with a camera in the immediate vicinity of the premises; and the continued trouble-free operation of the premises. The application was refused, the following reason being given:

"The variation of Condition Number 2 ... to remove control by the Planning Authority over opening hours would result in a development likely to have an adverse effect on the amenity of neighbouring residential properties located to the south and the holiday letting flats located to the north. As such the removal of condition 2 would result in bad neighbour development which is contrary to POL COM 4 of the Adopted Local Plan. POL COM 4 states:

'The Council will continued to examine carefully proposals for bad neighbour commercial uses in resident and mixed [commercial and] residential areas, and will not normally permit such uses where it is considered that they would have an unacceptable detrimental effect on the amenities of residential property."

[5]That decision was appealed to the Scottish Ministers on four grounds. First, it was argued that policy COM 4 of the adopted local plan was not relevant to the premises in question, as they were not in a residential or mixed commercial and residential area. Secondly, it was argued that policy COM 4 did not provide a reasonable basis for refusal of the application. In support of that contention the appellant made a number of submissions. He maintained inter alia that, over the period of the operation of the wine bar, there had been very few, if any, disturbances which were properly attributable to clients of the wine bar; he drew attention to the introduction of CCTV cameras in the vicinity, including one outside the premises, and to the grant by the licensing board of extended hours to other premises in Oban; and he pointed to the absence of adverse comments in the consultation response provided by the Environmental Health Department. That response had stated inter alia:

"As part of their submissions the applicants speak of other premises coming under Licensing Board control with regard to hours of opening. It is a fact that other premises in the area are so controlled and, indeed, premises that have not complied with the Board's instructions have lost licences or had hours of operation reduced. The Board has effective control as indeed do the Environmental Health and the police when dealing with licensed premises. Given that I have a history of only one complaint and that there are effective controls available to deal with licensed premises, I have no objection to the application as it stands."

The appellant also founded on the controls available under licensing law, and stated:

"In order to have a regular extension granted the applicant would have to satisfy the Licensing Board of the tests under section 64 of the 1976 Act and in particular under section 47(1) of the Law Reform (Miscellaneous Provisions) Act 1990 [sic] 'that such an extension is likely to be of such benefit to the community as a whole to outweigh any detriment to that locality'. In the light of the statutory requirement of section 47(1)(b) of the 1990 Act the Council's decision was neither justified nor based on any reasonable factual grounds ... In considering these extensions [viz. extensions granted to other licensed premises in Oban], the Licensing Board will have been obliged to assess the possibility of disturbance and must have come to the view that this was not a serious risk. Of course, if this proves to have been mistaken, the Board can readily revoke the licence extension when it comes up for renewal on an annual basis. Furthermore, if a complaint is made that the extended hours are causing an undue public nuisance, the Licensing Board may impose a restriction order under section 65 of the 1976 Act without waiting for a renewal application."

Thirdly, it was argued that insufficient weight had been given to a planning policy to encourage tourism. Fourthly, it was argued that opening hours should not be a matter for planning control. Reliance was placed first on the statement of Scottish Executive policy contained in paragraph 54 of...