Planning - Impact of possible noise nuisance claims on viability of a business – further update

We have been monitoring the progress of the legal case currently being pursued by Pauline Foster, the owner of an East London Tavern (the George Tavern) against the decision to grant Planning permission for a residential development in a neighbouring building. Although the original decision by Tower Hamlets was to refuse planning permission the decision was reversed on appeal to the Planning Inspectorate. 

Ms. Foster, who also resides at the George Tavern, commenced legal action against the Appeal decision and the case has now be considered by the Court of Appeal where it was argued by on behalf of Ms. Foster:

• 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.

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

“… in my judgment, if such an argument is to be advanced [the impact of a prospective planning permission on the viability of a neighbouring business] 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.

We will to see if the case is progressed any further, the current position is that although the potential impact upon neighbouring property may be a relevant factor, when properly established, this was not the ground on which the case was won.

Source: Local Government Lawyer