Bhamjee, R (on the application of) v Secretary Of State For Environment, Transport & Regions & Anor

On a second-tier appeal, permission should be granted only where the applicant identifies an important point of principle or practice, or another compelling reason for a further appeal. The question is not whether the applicant has real prospects of success.

A specific planning condition governing the use of land may require planning permission for a conflicting use, notwithstanding the general permitted-development and use-classification regimes. In planning proceedings, the statutory appellate or judicial-review role of the court prevents an Article 6 challenge based on the alleged lack of independence of a planning inspector. An inspector may refuse cross-examination where the proposed evidence is immaterial or would not affect the decision.

The applicant operated a car wash in a rear yard at 86/88 Upton Lane. A 1971 planning permission required the yard to be retained for accommodating vehicles of occupiers or visitors and not used for another purpose.

After the local planning authority treated the car wash as a breach of planning control, the applicant sought retrospective permission under section 73A of the Town and Country Planning Act 1990. Permission was refused. The Secretary of State’s inspector dismissed the applicant’s appeal under section 78.

The applicant then appealed to the Administrative Court under section 288. Sullivan J rejected all grounds, including arguments based on the 1995 and 1987 Orders, Article 6, cross-examination and noise evidence. The applicant sought permission to appeal to the Court of Appeal.

Permission refused. Lord Justice Dyson rejected each ground advanced.

1. The argument that the car wash required no planning permission ignored the existing specific planning permission and condition 3. That condition was inconsistent with using the yard for a car wash. Whatever the effect of the Town and Country Planning (General Permitted Developments) Order 1995 and the Town and Country Planning (Use Classes) Order 1987, permission was required under section 73A of the Town and Country Planning Act 1990 for a use breaching the condition.
2. The Article 6 challenge failed. The House of Lords’ decision in the Alconbury case established that the court’s reviewing role in planning statutory appeals and judicial review prevented an Article 6 objection based on the inspector’s alleged lack of independence.
3. The inspector was entitled to refuse or not require cross-examination of the councillor. The judge had found that the proposed evidence was unlikely to be central or capable of affecting the result.
4. Cross-examination of the enforcement officer was unnecessary because the inspector could determine the scope of the application from the application form and drawings.
5. The absence of noise testing disclosed no arguable error. The inspector did not base the decision on noise; the essential concern was likely traffic congestion in the highway.

The applicable test was the stringent second-tier appeal test. The applicant had to show an important point of principle or practice, or another compelling reason for the Court of Appeal to hear the matter. He had not done so.

1. Court of Appeal (Civil Division): Permission to appeal from the decision of Sullivan J was refused on 29 June 2001.
2. Administrative Court, Queen’s Bench Division: Sullivan J dismissed the statutory appeal under section 288 of the Town and Country Planning Act 1990 against the inspector’s decision.
3. Secretary of State’s inspector: The planning appeal under section 78 was dismissed on 22 December 1999.
4. Local planning authority: The retrospective planning application under section 73A was refused on 15 July 1999.