Akhtar, R (on the application of) v First Secretary of State & Anor

When deciding whether planning permission should be granted subject to conditions, an Inspector must assess whether the conditions would work in practical terms and satisfactorily mitigate the identified harm. Guidance that gives examples of enforceability does not create rigid legal tests. The question whether a condition can realistically be monitored and breaches proved is one of judgment and common sense. An Inspector may consider the likely behaviour of customers and operators, based on the history and nature of the use. A condition is not sufficient merely because breach could theoretically lead to enforcement proceedings. The court reviews the legality and adequacy of the reasoning, but does not substitute its own assessment of practical enforceability.

The claimant sought judicial review under section 288 of the Town and Country Planning Act 1990 of an Inspector’s dismissal of her appeal against refusal of retrospective planning permission. The application concerned the use of premises in Soho as a radio-controlled private hire operator.

The Inspector identified harm to highway safety and neighbours’ living conditions. She considered proposed conditions concerning parking, use as a radio control centre, driver and customer congregation, and flashing lights, but concluded that they would not satisfactorily mitigate the harm. The central issue was whether the Inspector had erred in law in her approach to the enforceability and practical effectiveness of those conditions.

Application dismissed. The Inspector’s decision was lawful and adequately reasoned.

1. The guidance in Circular 11/95 concerning enforceability did not establish hard-edged legal tests. The Inspector was required to consider whether the proposed conditions could realistically be monitored and breaches proved. That was a practical evaluative judgment.
2. The Inspector was entitled to conclude that a condition prohibiting associated minicabs from parking in Rupert Street would be extremely difficult to enforce. The relevant difficulties included identifying vehicles connected with the premises, changes in drivers and vehicles, activity during the early hours, and the inability of enforcement officers to monitor every breach. The court would not substitute its own view on practical enforceability.
3. The Inspector was entitled to take account of the established operation of the business and the likelihood that drivers would continue to come to the area and that customers would attend the premises even if the permitted use were described as a radio control centre. The issue was practical compliance in the circumstances, not merely the claimant’s stated intention to comply or the theoretical availability of enforcement proceedings.
4. The Inspector properly considered whether removing flashing lights would mitigate the harm. She was entitled to conclude that customers might still be attracted by the established business, signage or other means, and that removing the lights would not by itself eliminate the disturbance.
5. The Inspector had considered all the suggested conditions and the identified effects on highway safety and residential amenity. Her conclusion that the conditions would not satisfactorily mitigate those effects was a matter of judgment supported by intelligible reasoning. The claim was dismissed. The claimant was ordered to pay the first defendant’s costs, summarily assessed at £3,984. Permission to appeal was refused.

The judgment describes an earlier Inspector’s decision being quashed by consent, following which the planning appeal was reheard. No citation for that earlier decision is stated. This judgment was a first-instance judicial review decision.