Entertainu Ltd, R (on the application of) v Secretary of State for Transport, Local Government & Regions & Anor

In a planning appeal, the existence of a separate statutory regime for advertisement consent does not make signage irrelevant to the planning assessment. Signage may remain a material consideration when its visual effect forms part of the impact of a use on the character and appearance of an area. An inspector need not address the parallel regime expressly where it was not a principal controversial issue and the inspector has made clear the continuing significance of the signage. A planning inspector’s assessment of the external appearance of premises, informed by site inspections and professional judgment, will not be unlawful merely because the claimant disagrees with it. Procedural fairness does not ordinarily require an inspector to invite submissions on conclusions formed from evidence and site observations where the issue was known and the parties had an opportunity to address it.

The claimant operated a hostess bar in premises in Soho. Westminster City Council refused planning permission for continuation of the use and issued an enforcement notice. An inspector dismissed the claimant’s appeals under sections 78 and 174 of the Town and Country Planning Act 1990. The decision was successfully challenged, but a fresh inspector again dismissed both appeals.

The claimant challenged the fresh decision under sections 288 and 289 of the Act. The central issues were whether the inspector had lawfully relied on the premises’ outdoor advertising and allegedly distinctive entrance when assessing the effect of the use on the character and appearance of the Soho Conservation Area, and whether the existence of a separate advertisement-consent regime or procedural fairness required a different approach.

1. Outcome. The section 288 challenge and the section 289 appeal were dismissed. The claimant was ordered to pay the Secretary of State’s costs, summarily assessed at £5,340. Permission to appeal was refused.
2. Signage. The parties had agreed only that a separate application for advertisement consent would be required. There was no agreement or ruling that signage was irrelevant to the planning appeals. The inspector was entitled to treat the obvious outdoor advertising material as relevant to the effect of the hostess bar on the character and appearance of the area.
3. The separate regime under the Town and Country Planning (Control of Advertisements) Regulations 1992 did not require the inspector to leave the matter entirely to the advertisement-consent process. The principle in Gateshead Metropolitan Borough Council v Secretary of State for the Environment [1994] 1 PLR 85 made the parallel regime a relevant consideration, but it did not prevent signage from remaining relevant to the planning decision. The inspector was not required to refer expressly to the regime where the issue was not a principal controversial matter and his reasoning made his conclusion clear.
4. Distinctive entrance and fairness. The inspector was entitled to consider all external features, including the entrance and the presence of a woman in the entrance lobby. Whether the premises were obtrusive and out of character was principally a matter of professional judgment based on the evidence and site inspections. The reasoning was clear and sufficient and was not irrational. Fairmount Investments and the Secretary of State for the Environment [1976] 1 WLR 1255 was distinguishable because the present issue was known, had been addressed in evidence, and did not depend on an undisclosed technical investigation.
5. Late arguments. Arguments based on the parallel regime and possible planning conditions were raised for the first time at the hearing. Allowing them would have required an adjournment and would have prejudiced the unrepresented council. The claimant had already had an opportunity to amend its case. In the circumstances, refusal to permit the new arguments was a proper exercise of discretion.

The judgment states that an earlier inspector’s decision dated 12 December 2002 had been successfully challenged in the Administrative Court. A fresh inspector’s decision dated 12 January 2004 again dismissed both appeals. The present court dismissed the claimant’s challenges to that fresh decision.