Forster v Secretary of State for Communities and Local Government & Anor

In planning decisions, the prospect that occupants of a proposed development may later complain about noise or other effects from an existing business, with resulting proceedings or loss of business, is not automatically immaterial. A finding that proposed residents will experience no more than reasonable noise does not, as a matter of law or fact, exclude later claims with potential consequences for the existing business. The extent to which such indirect outcomes must be considered is a question fit for appellate examination. On protective costs orders, the court should apply normal balancing principles, taking account of public importance, private interest, the availability of an automatic order at first instance and the applicant’s financial position. A protective costs order may be made on tailored reciprocal caps.

The appellant challenged planning permission for demolition of Stepney’s Nightclub and construction of a three-storey mixed-use building with six flats next to the George Tavern, a live music venue owned and occupied by her. The inspector allowed the appeals subject to conditions aimed at protecting future residents from unreasonable noise. Lindblom J dismissed the appellant’s claim under section 288 of the Town and Country Planning Act 1990, holding that the inspector had addressed the relevant planning issues and was not required to anticipate future nuisance or licensing proceedings.

Permission to appeal had been refused on paper. The Court of Appeal was asked whether the risk of future complaints by residents, and consequent effects on the existing venue’s business, could be a material consideration, and whether the daylight and sunlight issue disclosed an arguable error of law. It also considered continuation of the protective costs order.

Permission to appeal

1. The Court of Appeal granted permission to appeal. The principal noise ground raised a real question whether the risk of future complaints by residents of a proposed development, potentially leading to abatement proceedings, licensing consequences or an injunction, and consequent loss or diminution of an existing business, should be taken into account as a material planning consideration.
2. The inspector’s conclusion that future residents would not experience unreasonable noise did not, in law or fact, exclude the possibility of later claims which might have weight. The court recognised the practical difficulty of assessing such a risk, but considered the issue important, particularly for live music venues. It did not determine the merits of the challenge or order that the planning permission be quashed.
3. The daylight and sunlight ground alleged that the inspector had equated acceptability for normal use with acceptability for artistic and photographic use. The court doubted that this ground alone would have justified permission, but allowed it to proceed in the circumstances.

Protective costs order

1. The application was determined on normal principles following Corner House [2005] 1 WLR 2600. The relevant balance included the general public importance of the issues, the applicant’s substantial private interest, the fact that an equivalent first-instance judicial review would attract an automatic protective costs order, and the applicant’s financial position. The Secretary of State accepted that the claim fell within the Aarhus Convention for this determination.
2. The court granted or extended the protective costs order on different terms from those ordered below. The applicant’s liability was capped at £10,000, with a reciprocal cap of £20,000 on adverse costs.

• High Court, Planning Court: Lindblom J dismissed the claim on 6 August 2015.
• Court of Appeal (Civil Division): Permission to appeal was initially refused on the papers by Lewison LJ on 11 January 2016. On renewal, the court granted permission and granted or extended the protective costs order: [2016] EWCA Civ 422.