Banglore Village Ltd, R (on the application of) v First Secretary of State & Anor

A planning permission must be construed from its wording, conditions and stated reasons. The permission may lawfully distinguish between uses within the same use class. A permission for a coffee shop selling hot snacks did not authorise use as an Indian takeaway selling full meals, even though both uses fell within class A3.

An enforcement notice must be read as a whole and in the context of the breach alleged. A requirement to stop selling hot food off the premises did not prohibit sales incidental to the permitted coffee-shop use. On the planning merits, an inspector may assess the actual effects of the unauthorised use, including odours, traffic and harm to a listed building and conservation area.

The claimant owned part of a Grade II listed building in a conservation area. Planning permission authorised use as a coffee shop selling hot snacks and a day nursery, subject to conditions restricting the use and operating hours.

The claimant subsequently operated an Indian takeaway selling hot food for consumption off the premises. Chelmsford Borough Council refused retrospective planning permission and served enforcement notices requiring cessation of the takeaway use and removal of an extraction flue. The Secretary of State’s inspector dismissed the related appeals, while extending the compliance period.

The claimant challenged the inspector’s decisions under sections 288 and 289 of the Town and Country Planning Act 1990. The issues included the construction of the permission and enforcement notice, and whether the inspector had lawfully assessed the planning effects of the current use.

1. Construction of the permission. The application and appeal were dismissed. The permission had to be read by reference to its terms, conditions and the reasons for those conditions. Those matters made it clear that the council intended to prevent an unrestricted class A3 use. No impermissible hypothesis about the council’s motives was involved.
2. The essential permission was for a coffee shop selling hot snacks. The claimant’s premises were being operated as an Indian takeaway and not as a coffee shop. That was a clear departure from the permitted use and breached condition 5, irrespective of the fact that both uses fell within class A3. The inspector was entitled to consider the meaning of “snack”, particularly because the claimant had put that issue in dispute.
3. Enforcement notice. The alleged defect in the requirement to cease sales of hot food for consumption off the premises was not properly raised under ground (f) in Appeal A and was academic on the claimant’s case. In any event, the notice had to be read as a whole. Its requirement did not prohibit hot-food sales incidental to the authorised use as a coffee shop selling hot snacks. It was therefore not to be read literally in isolation.
4. Planning merits. The inspector was entitled to take account of cooking smells, disturbance from traffic, later operating hours, the visual effect of the extraction flue and other harm to the listed building and conservation area. He was not required to undertake a hypothetical assessment of smells from a lawful coffee-shop use. The evidence supported his conclusion that the current use caused materially different effects.
5. The inspector had considered whether lesser steps or a condition could make the extraction flue acceptable. In the absence of a specific alternative scheme, he was entitled to conclude that no alteration or lesser step would overcome the harm. The claimant’s statutory challenge and appeal were dismissed. The claimant was ordered to pay the first defendant’s agreed costs of £5,912.

The judgment describes the Secretary of State’s inspector’s dismissal of three linked appeals concerning the refusal of planning permission and two enforcement notices. The Administrative Court dismissed the claimant’s challenge under sections 288 and 289 of the Town and Country Planning Act 1990.