Francis v First Secretary of State and Another (2024)

[2007] EWHC 2749 (Admin)

Before

Mr. Justice Lloyd Jones

Case No: CO/736/2006

Between

Ondine Francis

Claimant

and

(1) First Secretary of State

(2) The London Borough of Greenwich

Defendants

Mr. Paul Marshall and Miss Anna Bicarregui (instructed by Wragge & Co.) for the Claimant

Miss Lisa Busch (instructed by Treasury Solicitors) for the First Defendant

The Second Defendant did not appear and was not represented.

1

This is an application by Mrs. Ondine Francis under section 288, Town and Country Planning Act 1990 ("the 1990 Act") for an order quashing the decision of an Inspector appointed by the First Defendant dated 15 ^th December 2005 dismissing her two appeals against a refusal of planning permission by the Second Defendant ("the Council") under section 73 of the 1990 Act.

2

The appeals relate to a condition attached to planning permission for the use of premises located at 76 Royal Hill, Greenwich, London SE10 as a tearoom and coffee shop. The premises occupy the ground floor of a three storey brick and timber building constructed around 1840 and are located on a street of mixed uses near the centre of Greenwich. The premises are used as a tearoom under the name "Royal Teas". They comprise two customer areas, a small kitchen and a single toilet. The upper floors and both adjoining buildings are in residential use. The premises are located in the West Greenwich Conservation Area and are on the local list of buildings of architectural and historic interest.

3

Planning permission (Ref 87/0753P) for the use of the premises as a tearoom and coffee shop was granted on 1 ^st October 1987, subject to five conditions. All of the conditions were subsequently removed or discharged with the exception of condition 3 which stated:

"No cooking shall be carried out on the premises at any time without the prior approval of the Council".

The reason given for condition 3 was that it was in the interests of the amenities of the neighbouring properties.

4

On 13 ^th February 2004 the Claimant applied for planning permission for the erection of a single storey extension at the rear of the premises. This was granted on 6 ^th October 2004 subject to conditions, one of which was that the premises should not be used for an A3 use.

5

On the 24 ^th May 2004, following the service of an enforcement notice requiring the Claimant to comply with condition 3, she applied to the Second Defendant for the removal of that condition. The Second Defendant refused this application by a decision notice dated 23 ^rd July 2004. The decision notice gave the following reasons for the refusal:

"(1) The removal of the condition prohibiting cooking on the premises is considered to alter the use to an A3 use, which would impact detrimentally on the amenities of neighbouring residents and the locality generally, through an increase in odour, noise, activity, litter and loss of privacy and car movement, contrary to Policies H4, E6, E8 and S21 of the Unitary Development Plan and Policies SH4, E1, E4 and TC29 of the Second Deposit Draft Unitary Development Plan.

(2) The establishment of an A3 use without suitable odour and noise control is considered to impact detrimentally on the amenities of neighbouring residents and the locality generally through an increase in odour, noise and activity, contrary to Policies H4, E6, E8, S21 and Policies SH4, E1, E4 and TC29 of the Second Deposit Draft Unitary Development Plan.

(3) The establishment of a ventilation system to control odours is considered likely to have a deleterious impact on the visual and acoustic amenities on the locality, affecting the amenity of neighbouring residents and the Conservation Area generally, contrary to Policies H4, D4, D8, D18, E6 and E8 of the Unitary Development Plan and Policies D1, D16, SH4, E1 and E4 of the Second Deposit Draft Unitary Development Plan.

(4) The removal of the condition prohibiting cooking on the premises into an A3 use. (sic) The replacement of an A1 use with an A3 use in this location is considered to deleteriously impact on the safeguarding of the neighbourhood shopping parade contrary to Policy S10 of the Unitary Development Plan and Policy TC19 of the Second Deposit Draft Unitary Development Plan."

6

The Claimant appealed under section 78 of the 1990 Act. There were two appeals. Appeal A sought the variation of condition 3 so as to read:

"The preparation of hot and cold food for sale on the premises shall be limited to soup, simple vegetarian based pasta dishes, simple egg, cheese, bean and vegetable based dishes, toasted sandwiches, teacakes, baguettes and croissants. The preparation of hot food shall include the reheating of cold food by microwave oven. The baking of approximately 25 fresh cakes each working week shall also be permitted".

Appeal B sought the removal of condition 3.

The Inspector's decision.

The Inspector identified the main issues in the appeals as follows:

(1) The effect of varying or removing the condition on the living conditions of nearby occupiers, in terms of odours and noise and disturbance;

(2) Whether the proposals preserve or enhance the character or appearance of the West Greenwich Conservation Area;

(3) The effect of varying or removing the condition on the vitality and viability of the shopping parade.

The Inspector outlined the applicable planning policies and set out the relevant background.

7

He considered that the "main plank" of the Appellant's case was that the condition in dispute cut across and diminished the planning permission that had been granted which was, in effect, for A3 use. She had submitted that the condition was unnecessary and failed the test set out in Circular 11/95. She had submitted that a more appropriate condition would require the approval and installation of a mechanical extraction system.

8

The Inspector considered that while the current use of the premises did not obviously come within class A1, as the sale of hot drinks for consumption on the premises was the primary business carried out rather than any other retail activity, the restriction on cooking on the premises as imposed by condition 3 limited the range of food for sale to what would be more appropriate to an A1 use such as a sandwich shop. However, he considered that the essential point was not that the use fell within either use class, but that food could not be cooked on the premises. In this regard he rejected the submission of the Appellant that the condition in dispute diminished the planning permission that had been granted. He considered the extant planning permission to be clear. The condition was imposed in order to protect adjoining residential occupiers. To my mind the Inspector's approach was entirely correct. There was a degree of circularity in the Appellant's argument. The planning permission granted was restricted and defined by the condition. The Inspector correctly identified the issue under consideration on the appeal as whether, having regard to all the circ*mstances, the condition continued to serve a valid and useful planning purpose.

9

The Inspector identified the tests in paragraph 14 of Circular 11/95. He considered that there was a clear distinction between reheating food and cooking food from basic ingredients. He was satisfied that the activity of cooking was quite distinct from heating up and considered that if cooking took place it would easily be detected. He therefore considered the condition reasonable and enforceable. (Paragraph 15).

10

The Inspector considered that the proposed amended condition would be ineffective to control smells by limiting the type of food cooked.

11

At paragraph 17 he stated:

"I do not doubt that due to the rather basic construction of the floors and walls of this old building and the timber access stairs that pass through the centre of the floor plan, cooking smells may permeate easily to be noticed by the residents of the flat above and those of adjoining properties. The windows of the living areas of 3 dwellings are also in close proximity to the back door of the kitchen and smells are very likely to emanate by this external route. I understand that in warm weather, that door and a small window is kept open for reasons of ventilation and comfort. However, it is also on warm days when residents will desire to open their own windows. The rear area of gardens is restricted by high walls to the east and north (that to the north being at least 3 storeys high) and I consider smells may not easily disperse, depending on weather conditions. I conclude that the activity of cooking in the appeal property as it stands would detract from the living conditions of adjoining residents."

12

He referred to regular complaints since the use commenced. He considered that if a different operator took over the premises cooking would be likely to lead to more objectionable odours. They would be more difficult to control if an A3 use were permitted without an effective ventilation and extraction system. (Paragraph 18) He then continued:

"19. Turning to the ventilation system that has been proposed, planning permission was granted in October 2005 for a rear extension that provides a modern toilet facility and a slightly enlarged customer area. As part of the appeal submission, a ventilation scheme was submitted that has been approved by the Council's Environmental Health and Building Control Departments, which could be installed as part of the extension and improvement works. It includes...