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Pub owner wins Court of Appeal battle over housing association development

The owner of a pub in East London has won a Court of Appeal battle over the grant of planning permission for a three-storey building on the site of a former nightclub next door.

The case of Forster v The Secretary of State for Communities and Local Government & Ors [2016] EWCA Civ 609 centred on a planning inspector’s grant of permission to a housing association for the demolition of a single storey building in Stepney – previously home to Stepney’s Nightclub – and the erection in its place of a three storey building with commercial uses on the ground floor and six flats on the floors above. Tower Hamlets Council had previously refused permission.

In August 2015 Mr Justice Lindblom (as he then was) dismissed a claim brought by the appellant under s. 288 of the Town and Country Planning Act 1990.

The appellant, the owner of the George Tavern, took her case to the Court of Appeal, where she argued:

  • There was a risk, unacknowledged by the inspector, that complaints from residents of the new flats might ultimately lead to the revocation of her late night music licence or the grant of an injunction in a private nuisance claim. This would curtail the activities that kept the George going;
  • There would be reduced sunlight and daylight at the George, which was used as a studio for artists and photographers and as a film location.

Giving the judgment of the Court of Appeal, Lord Justice Laws allowed the appeal on the light issue, but not on the noise issue.

The judge said that the appellant’s point about light (especially the development's impact on a staircase in the George Tavern used for photography and filming) and the effect of its diminution on her business was specific and distinct.

Lord Justice Laws said the issue “was sufficiently flagged to require the inspector to deal with it in terms; and he did not”.

On the noise issue, the Court of Appeal judge said the impact of a prospective planning permission on the viability of a neighbouring business might in principle amount to a material planning consideration.

“But in my judgment, if such an argument is to be advanced it should be clearly raised before the inquiry inspector (if there is an appeal to the Secretary of State) with a sufficient degree of particularity and supporting evidence to enable the Inspector to reach an objective and reasoned conclusion on the point,” he said.

“If it is advanced in purely general terms, that would most likely do no more than invite the inspector to embark upon a merely speculative exercise; and such a process would be unorthodox and illegitimate.”

Lord Justice Laws added: “No doubt there are situations where the threat posed by a prospective planning permission to a neighbouring business will stare the Inspector in the face: the prospect of a new retail outlet across the street from an established shop selling the same range of goods is an instance. But in other cases, and this is surely one, the alleged effects of the proposed development will by no means be so clear. Where that is so, an evidence-based case needs to be made.

“No such case was presented by the appellant to the inspector.

The Court of Appeal quashed the grant of planning permission.

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