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High Court quashes grant of planning permission to café for extended opening hours

A minor change in a café’s proposed opening hours was not reasonable grounds for St Albans City and District Council to grant a planning consent that it had withheld for an almost identical application.

That decision came from the High Court in a judicial review brought by a Mr Rodwell over the Secret Garden Café, of which he is a near neighbour.

Kings Chambers, which acted for Mr Rodwell, said the case would interest “those dealing with applications for extended opening hours for businesses in residential areas.

“As local businesses seek to bounce back after the consequences of Covid-19, local planning authorities will have to weigh the protection of residents’ amenity against supporting business. This case highlights the need to deal properly with the controversial point: explaining where the planning balance lies.”

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His Honour Judge Bird said the café owners had applied to increase the area available for outdoor seating, remove the limit on the number of outdoor tables and extend opening hours to 8am to 9pm on Thursday to Saturday and 8.30am to 5pm on Sundays and bank holidays.

St Albans rejected this, as did a planning inspector on appeal, who found the proposed extension of opening hours on Thursday to Saturday would result in a significant, harmful noise intrusion to neighbours at a time of the day “when they would be expecting a reduction in activity and sound emanating from the café”.

The café owners then submitted an application to close at 8pm on Thursday and Friday rather than 9pm.

HHJ Bird said: “In every other material respect the application is the same as that which was rejected by the local planning authority.”

This time though St Albans granted the application.

Mr Rodwell took a judicial review on the grounds that the council’s decision was not supported by adequate reasons and was perverse and irrational.

The judge said a planning authority may depart from plans but if it does those affected by the decision must be able to understand why the departure is justified.

“If the previous decision is to be departed from, the reasons for departure should in my judgment be explained,” HHJ Bird said.

Counsel for St Albans argued that the planning committee had expressed a view on whether the reduction in opening hours addressed the inspector's amenity concerns and said that requiring the decision maker to go further would be impermissible and would amount to imposing a duty to give reasons for reasons.

Mr Rodwell said decision makers had had to determine whether the slight reduction in proposed opening hours was sufficient to mean that the impact on amenity noted by the inspector would be mitigated or addressed. The justification given provided no reasons for the conclusion reached.

HHJ Bird said St Albans’ argument was “a prime example of the type of exegetical, overly legalistic approach which is impermissible”.

He said Mr Rodwell had shown that he had suffered substantial prejudice “most obviously, absent an explanation as to why the decision was reached, the claimant cannot decide if he has any grounds of challenge.

“Further, the absence of reasons means he is unable to gauge the prospects of successfully opposing a further future application seeking extension of opening hours by a further short period.”

The judge said it was surprising that the council felt that a minor change to the opening hours “could possibly lead to the conclusion that there was no longer an interference with amenity.

“Opening hours would remain as set out in the rejected 2019 application for Saturday, Sunday and bank holidays. It is wholly unclear how changing the opening hours for Thursday and Friday would impact on a loss of amenity felt on other days. Adequate reasons would have addressed that point.”

Mark Smulian

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