Bar 1 Ltd, R (on the application of) v First Secretary of State & Anor

In a planning challenge under section 288 of the Town and Country Planning Act 1990, an inspector may assess the likelihood of noise and disturbance by applying judgment to the evidence, residents’ complaints, the local authority’s views and the circumstances of the premises. Direct proof of future incidents, or a personal inspection at closing time, is not required. The court will not substitute its own planning judgment where the inspector’s conclusion was reasonably open on the material before him. Decisions of other inspectors generally provide little assistance when they depend on their own facts.

The claimant operated a restaurant bar in central London and sought to vary conditions limiting its closing time to midnight. Westminster City Council failed to determine the application within the prescribed period, and an inspector dismissed the claimant’s appeal on 12 December 2005. The inspector considered that extending opening to 1 am would probably cause unacceptable noise and disturbance to nearby residents, particularly from customers leaving the premises.

The claimant applied under section 288 of the Town and Country Planning Act 1990, alleging errors of law, including insufficient evidential foundation for the inspector’s conclusion and reliance on decisions concerning temporary permissions elsewhere.

1. Claim dismissed. The inspector’s decision was not vitiated by an error of law.
2. The inspector was entitled to conclude that customers leaving the premises were likely to create noise and disturbance. The material included residents’ objections, the council’s assessment and the inspector’s judgment about the behaviour likely to occur when a busy bar closed. The evidence did not need to establish that every complained-of incident had been caused by the claimant’s customers.
3. The customer survey showed likely destinations after leaving, but did not establish that customers would not linger, make farewells or otherwise cause disturbance before dispersing. The inspector was therefore entitled to regard the risk as sufficient to justify refusal.
4. The inspector was not required to inspect the premises at midnight. Whether the proposed extension was likely to harm living conditions was principally a matter of planning judgment. Judicial review did not permit the court to substitute its own assessment for a conclusion properly open to the inspector.
5. Other inspectors’ decisions concerning temporary permissions were fact-specific and did not provide general guidance. Their different facts meant that the inspector was entitled to attach no weight to them.
6. A fresh application could be made if cogent further evidence showed that the external-noise problem had been remedied. The defendants were awarded costs, summarily assessed at £6,000.

The judgment describes an inspector’s decision dated 12 December 2005 dismissing the claimant’s planning appeal. The Administrative Court dismissed the statutory challenge.