Entertainu Ltd, R (on the application of) v Westminster City Council

In a planning appeal conducted on written representations, an inspector must decide the case on the basis advanced by the local planning authority and allow the parties a fair opportunity to address any material ground of decision. A decision cannot stand where the inspector dismisses an appeal on a fundamental policy objection which was not sufficiently identified in the authority’s formal reasons or otherwise put clearly to the appellant. Relief may be refused where the result was necessarily inevitable, but the court should quash and remit where it cannot conclude that proper representations would have made no difference.

Westminster City Council refused planning permission for the continued use of premises as a hostess bar and served an enforcement notice requiring that use to cease. The claimant appealed to the Secretary of State. The inspector rejected the appeal, finding that the premises were out of character with the Chinatown area of Soho and that the use diluted its distinctive character.

The claimant sought judicial review, arguing that the inspector had decided the appeal on the basis that any hostess bar in that part of Wardour Street was unacceptable in principle, whereas the Council’s stated case focused on the particular premises, touting, crime and disorder, and associated effects. The central issue was whether the inspector had relied on a material ground which the claimant had not been given a proper opportunity to address.

1. The decision was quashed in relation to the refusal of planning permission, and the enforcement appeal was remitted to the Secretary of State for reconsideration. The appeal was allowed with costs.
2. The Council’s formal reasons indicated that the objection concerned this particular hostess bar and the external activities associated with it, including touting, crime and disorder. They did not make sufficiently clear that the claimant had to meet a fundamental policy objection to any hostess bar in that part of Wardour Street.
3. Because the appeal proceeded on written representations, the inspector had to ensure that the claimant was not taken by surprise by a material ground of decision. The claimant needed a proper opportunity to make full representations on the alleged general incompatibility of hostess bars with the character of Chinatown and to ascertain the Council’s position.
4. The inspector’s finding that the bar did not significantly harm nearby residents did not resolve the separate character-and-appearance issue. His conclusion that the use was fundamentally unacceptable in Chinatown therefore rested on a basis which had not been fairly presented for determination. His failure to explain why the earlier 1986 planning decision was immaterial reinforced the difficulty.
5. Relief would not be granted if the outcome would necessarily have been the same. That could not be established here. The court therefore quashed the planning refusal and remitted the enforcement matter for reconsideration, leaving the procedure for reconsideration to the Secretary of State.

The judgment itself describes the following procedural history:

• Westminster City Council: refused planning permission and issued an enforcement notice concerning the continued hostess-bar use.
• Secretary of State’s inspector: dismissed the claimant’s appeals against the refusal and enforcement notice.
• High Court (Administrative Court): allowed the claim, quashed the refusal of planning permission and remitted the enforcement appeal for reconsideration.