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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bhamjee, R (on the application of) v Secretary Of State For Environment, Transport & Regions & Anor [2001] EWCA Civ 1072 (29 June 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1072.html Cite as: [2001] EWCA Civ 1072

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE SULLIVAN)

		Royal Courts of Justice Strand London WC2 Friday, 29th June 2001

1. LORD JUSTICE DYSON: This is an application for permission to appeal against the decision of Sullivan J dated 23rd January 2001 which was itself on an appeal under section 288 of the Town and Country Planning Act 1990 in respect of a decision letter of the Secretary of State's inspector dated 22nd December 1999, by which the appellant's planning appeal had been dismissed.
2. The appellant has been operating a car wash service in the rear yard of 86/88 Upton Lane, Forest Gate, London, for which it was contended by the local planning authority that he did not have the necessary planning permission. In his decision letter the inspector noted that in 1971 the second respondent, the local planning authority, had granted planning permission for alterations to 86/88 Upton Lane to provide a ground floor shop and three self-contained flats. Condition 3 attached to that permission was in these terms:

"The yard area formed at the rear of the building shall be provided prior to the commencement of the use of the ground floor shop and retained permanently for the accommodation of vehicles of the occupiers or persons calling at the premises only and shall not be used for any other purpose."

3. The inspector noted that the reason for the imposition of that condition was:

"... to avoid the obstruction of surrounding streets by waiting vehicles and to protect the amenities of the area."

4. The second respondent informed the appellant that the use of the yard for the car wash was in breach of planning control. This they did by letter dated 12th February 1999. On 28th May 1999, the appellant applied to the second respondent for planning permission to continue to run the car wash service. That application was made pursuant to section 73A of the 1990 Act which provides that:

"(1) On an application made to the local planning authority the planning permission which may be granted includes planning permission for development carried out before the date of the application.

(2) Subsection (1) applies to the development carried out;

(a) without planning permission;

(b) in accordance with planning permission granted for a limited period;

(c) without complying with some condition subject to which planning permission was granted."

5. On 15th July 1999, the second respondent refused the appellant's application on the basis that it represented an overdevelopment of the site in that:

"1. It prevented legitimate use of the appeal site as a service area incidental to the remainder of the premises.

2. It failed to make provisions for the parking and manoeuvring of vehicles, thereby prejudicial to the free movement of vehicles and pedestrians in the area.

3. It created unacceptable noise."

6. The appellant appealed that decision to the Secretary of State pursuant to section 78 of the 1990 Act. On 22nd December 1999, the Secretary of State's inspector dismissed the appeal. On 23rd January this year, the appellant appealed to the High Court under section 288 of the Act which provides for a statutory appeal to the High Court of an inspector's decision.
7. In his judgment Sullivan J helpfully identified the main grounds of the appeal before him as follows: One, the Town and Country Planning (General Permitted Developments) Order 1995 ("the 1995 Order") and the Town and Country Planning (Use Classes) Order 1987 ("the 1987 Order") indicated that planning permission was not required for the Car Wash. That ground was rejected by the judge, as indeed he rejected all the other grounds. In relation to that point (which Mr Bhamjee puts before me this morning as his principal ground of appeal) Sullivan J said this at paragraph 24 of his judgment:

"The short answer to that is that there was an application for planning permission for a particular development before the inspector with which he was obliged to deal. Moreover, given the existence of condition 3, he was entirely correct in his conclusion that whatever the provisions of those orders [by which he meant the 1995 order and the 1997 order] planning permission was required under section 73A to authorise a use which would be in breach of that condition."

8. I see no answer to that riposte to this ground of challenge. The argument that Mr Bhamjee seeks to advance completely ignores the fact that the yard was the subject of a specific planning permission which was inconsistent with the use to which he had been applying the yard since sometime in early 1999.
9. The next ground identified by Sullivan J was that the inspector was not sufficiently independent for the purposes of Article 6 of the European Convention on Human Rights. The short answer to that is that the House of Lords in the Alconbury case has made it quite clear that the role of the Court as a reviewing authority in statutory appeals and indeed by judicial review in planning matters prevents any possible Article 6 challenge. In any event this is not the case in which the Secretary of State had any interest of his own whatsoever, as the judge pointed out.
10. The third point is that the inspector should have permitted or required the attendance of Councillor Chaudhary for cross-examination at the hearing. The judge dealt with that at paragraphs 34 and 35 of his judgment. The judge referred to a witness statement that had been prepared by the inspector in which the inspector had said that he formed the opinion that it was unlikely that even if Councillor Chaudhary were to be cross-examined, whatever he would say would not be central to the relevant issues and would therefore make no difference to the ultimate decision. Sullivan J said that, having seen the sort of points that the appellant wished to raise with Councillor Chaudhary, he was of the view that the inspector's judgment on that aspect was wholly justified. I can see no possible basis for challenging that conclusion of the judge.
11. The next point is that the inspector should have permitted or required the attendance of the enforcement officer for cross-examination at the hearing. The answer to that is given by the judge at paragraph 28 of his judgment: the inspector was well able to determine the scope of the application by reference to the application form and the drawings that were produced before him without any need for the enforcement officer to be cross-examined in respect to those matters. It seems to me that there can be no possible complaint about that.
12. The other matters were dealt with by the judge but they have not been the subject of any argument before me this morning, save for a complaint that the inspector did not carry out any noise tests. Mr Bhamjee makes the point that the activities which he carries out at the yard are not noisy activities. The judge dealt with this to some extent at paragraph 42 of his judgment where he said that it was not incumbent on the inspector to order screening tests if the parties had not thought it necessary to have them carried out. But, more importantly, the judge pointed out that the inspector did not, in any event, base his decision upon a noise objection. The essential basis for the decision of the inspector was his concern about the likelihood of traffic congestion in the highway being caused by the activity in question.
13. If the test that I had to apply were whether Mr Bhamjee had real prospects of succeeding in this matter, then I would unhesitatingly say that that test was not satisfied. However, that is not the test. The test is a more stringent one because this is a second tier appeal. Mr Bhamjee has to satisfy me that he has raised some important point of principle or practice or that for some other compelling reason that this is a matter that should be heard by the Court of Appeal. I am in no doubt at all that he has not identified any important point of principle or practice or that there is any other compelling reason for the Court of Appeal to hear this matter.
14. I accordingly refuse permission.
(Application for permission to appeal refused)