Gold Kebab Ltd v Secretary of State for Communities And Local Government

Planning and licensing regimes are distinct, even where they address overlapping concerns such as noise and public nuisance. A planning inspector may lawfully give substantial weight to the protection of residential amenity and must balance that interest against commercial benefits. Evidence from residents may establish disturbance even where formal environmental health complaints are absent. The court will not interfere with a planning decision merely because the evidence could be criticised on detailed analysis, provided the inspector considered the material evidence, applied the relevant policies and exercised planning judgment.

Gold Kebab Limited challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s dismissal of its appeal against refusal to vary a planning condition restricting the opening hours of a takeaway and restaurant.

The proposed variation would have permitted opening from 7am until 5am every day. The premises were close to residential accommodation. The inspector relied on evidence of noise and disturbance to nearby residents and concluded that residential amenity outweighed the commercial benefit. The claimant argued that the decision lacked an evidential basis and failed to take proper account of the premises’ extended licensing hours.

1. Claim dismissed. The inspector’s decision was unimpeachable and was not quashed.
2. The inspector was entitled to rely on residents’ letters as evidence of objections, noise and disturbance. The absence of recent complaints to the Council’s environmental health department did not mean that there was no evidential basis for the decision. The letters might have contained forensic weaknesses, but they clearly constituted evidence which the inspector could evaluate.
3. The planning and licensing regimes are separate. Their legal considerations differ, although there may be some overlap. The existence of a licence permitting operation until 5am did not require planning permission to be granted. The inspector was plainly aware of the licensing authority’s position and had taken it into account.
4. The inspector was entitled to apply the relevant development plan policies and to balance the protection of residential amenity against the commercial benefit of extended opening hours. The court would not interfere with the exercise of planning judgment merely because it might have evaluated the evidence differently.
5. The Secretary of State was awarded costs, reduced by agreement to £4,840.

The claimant appealed to the planning inspector against the refusal to vary the planning condition and against an enforcement notice. The inspector dismissed both appeals, subject to a minor variation of the enforcement notice. The present claim under section 288 of the Town and Country Planning Act 1990 challenged only the decision concerning the variation of opening hours.