Stamatios Miaris v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | John Howell |
| Judgment Date | 04 June 2015 |
| Neutral Citation | [2015] EWHC 1564 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 04 June 2015 |
| Docket Number | Case No: CO/1501/2014 |
[2015] EWHC 1564 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
John Howell QC
(Sitting as a Deputy High Court Judge)
Case No: CO/1501/2014
Mr Jonathan Wills (instructed by Horsey Lightly Fynn) for the Appellant
Ms Estelle Dehon (instructed by The Treasury Solicitor) for the First Respondent
The Second Respondent did not appear and was not represented
Hearing date: 20 May 2015
John Howell QC:
This is an appeal under section 289 of the Town and Country Planning Act 1990 (" the 1990 Act") on a point of law against a decision by an Inspector appointed by the Secretary of State, Mr Simon Hand MA, to uphold an enforcement notice issued by Bath and North East Somerset Council in respect of 14 North Parade, Bath.
The appeal raises a point of law of general application to appeals against such notices. When planning permission is not sought for any of the matters constituting a breach of planning control to which such a notice relates, may the Secretary of State entertain an appeal against the notice on the basis that any of the steps it contains exceed what is necessary to remedy any injury to amenity caused by the breach and, if so, in what circumstances?
Permission to bring this appeal was granted by Mr Robin Purchas QC sitting as a Deputy High Court Judge on April 30 th 2014.
THE ENFORCEMENT NOTICE AND THE APPEAL IN THIS CASE
The Council issued the enforcement notice that has given rise to the appeal in this case on July 10 th 2013. It related to premises, known as Opa, that have a lawful use as a restaurant. The notice alleged that there had been a breach of planning control by the making of a material change in the use of Opa from a restaurant to a mixed use of restaurant, drinking establishment and nightclub.
The substantive reasons stated in the notice why the Council considered it expedient to carry out enforcement action were that:
"b) The change of use of the restaurant to a mixed use of restaurant, bar and nightclub has resulted in an increase in pedestrian movements and a change to the pattern and timeframe of movements outside the premises. This has resulted in a detrimental effect upon the well-being of residents of nearby residential properties contrary to policy D2 of the Bath and North Somerset Local Plan…and the aims of the National Planning Policy Framework (Paragraph 58).
c) The change of use of the restaurant to a mixed use of restaurant, bar and nightclub has resulted in an increase in noise, vibration and disturbance. This adverse effect upon health, the environment and general amenities of the area is contrary to policy ES12 of the Bath and North East Somerset Local Plan…and the aims of the National Planning Policy Framework (Paragraph 123)."
The enforcement notice required three things to stop. These were: (a) use of Opa as a drinking establishment; (b) use of Opa as a nightclub; and (c) DJs being allowed to perform at Opa.
The Appellant, Mr Stamatios Miaris, who is the owner of the premises, appealed to the Secretary of State against that notice. He did not appeal on the ground that the breach of planning control alleged had not occurred. Nor did he appeal on the ground that planning permission should be granted for the matters that constituted the breach of planning control alleged in the notice or any of them. An earlier application to change the use of the premises to a mixed use of restaurant, bar and nightclub had been refused by the Council on July 8 th 2010.
The Appellant's sole ground of appeal was that the steps required to comply with the requirements of the notice were excessive. The Appellant did not take issue with the requirement to cease using Opa as a nightclub. He accepted that that requirement was reasonable and necessary to overcome the Council's objections. The Appellant contended, however, that the requirement to cease using Opa as a drinking establishment was excessive. The premises had a premises licence for the sale of alcohol until 2am. The Appellant wanted, so he said, the flexibility to operate as a restaurant with the sale of alcohol to non-diners as a subsidiary element to enable his business to remain economically viable, something that he asserted accorded with the National Planning Policy Framework. He contended that a lesser step to overcome the objection to a drinking establishment, which would ensure that the permitted A3 restaurant use would be the primary use, would be to limit the number of customers who enter the premises and do not eat to 60 at any one time. The Appellant also contended that the requirement not to allow a DJ to perform at Opa served no useful purpose as the playing of music, whether it was live or recorded, was not restricted by the notice and as there was a noise abatement order in force in relation to the premises which provided sufficient protection. It was also unjustified given its effect on local jobs.
The Council justified the requirements in question because they were linked to a change in the character of the use of the premises from a venue where patrons sit down and eat a meal to a party venue attracting patrons looking for a lively night out. The requirement to cease using the premises as a drinking establishment made it clear that it should not be so used and the limitation suggested by the Appellant would in any event be impossible to enforce. The requirement in relation to DJs was necessary to restrain future use as a nightclub since a key part of that use was music played by a DJ. That was usually louder and of a different character than background music normally found in restaurants. The Council contended that "clear requirements are necessary to ensure that the unauthorised activities cease and do not recur."
The Inspector dismissed the appeal against the enforcement notice in a letter dated March 7 th 2014. In it he stated that:
"3. Ground (f), which is the only ground of appeal in this case, is the appropriate ground where an appellant seeks to argue that the steps required by the Notice exceed what is necessary to remedy the breach of planning control or, as the case may be, to remedy the injury to amenity which has been caused by any such breach.
4. In this case there is no ground (a) appeal or deemed application. Consequently, the appeal under ground (f) cannot be turned into something else by arguing, for example, that the amenities of neighbours are not harmed by drinking at the building or that a single themed night is not harmful (The case of Secretary of State for the Environment, Transport and the Regions v Wyatt Brothers (Oxford) Ltd [2001] EWCA Civ 1560 refers). Accordingly I have been unable to take account of the general planning considerations raised by the appellant as these are more appropriate to an appeal on ground (a).
5. Requirement (a) is to stop using Opa as a drinking establishment. The argument against this, that additional patrons attracted only for drinking would not be harmful, is a matter of planning merits. Similarly the suggestion that a limit on the number of customers to the restaurant who have a drink but no food would overcome the problem also assumes a decision has been made as to what number of customers would be acceptable, again one I cannot make without considering the merits of the case. Although I would add that had I been able to do so the enforceability of such a condition or limit would seem to present considerable problems.
7. Requirement (c) is to stop DJs. The argument against this is that it is excessive as there is nothing in the notice that restricts live music and a DJ playing music is no different from a pre-programmed music system. There is a noise abatement order in force at the premises and this provides sufficient control to prevent any excess noise, hence whether a DJ is employed or not is irrelevant. However, I agree with the Council that a DJ is not generally found at a restaurant use but is part and parcel of a nightclub. The objective of the notice is to turn Opa back into a restaurant from the nightclub use into which it had apparently morphed. Preventing a DJ therefore is directly related to the allegation and does not seem excessive in this context."
THE STATUTORY BACKGROUND
A local planning authority is empowered to issue an enforcement notice by virtue of section 172(1) of the 1990 Act
"where it appears to them —
(a) that there has been a breach of planning control; and
(b) that it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations."
There is a breach of planning control when "development" is carried out without the required planning permission 1. Such development includes the making of a material change in the use of any buildings or other land 2.
The Town and Country Planning (Use Classes) Order 1987 specifies certain classes of use for the purposes of development control. A change of use within each class does not constitute development but changes between them will do if material. These classes include Class A3 Restaurants and cafes, "Use for the sale of food and drink for consumption on the premises", and Class A4 Drinking establishments, "Use as a public house, wine-bar or other drinking establishment". Neither of these classes includes use as a nightclub 3. Development consisting of a change of use of a building to a use falling within Class A3...
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