Entertainu Ltd, R (on the application of) v Secretary of State for Transport, Local Government & Regions & Anor, Court of Appeal - Administrative Court, October 26, 2004, [2004] EWHC 2566 (Admin)

Resolution Date:October 26, 2004
Issuing Organization:Administrative Court
Actores:Entertainu Ltd, R (on the application of) v Secretary of State for Transport, Local Government & Regions & Anor

SMITH BERNAL WORDWAVECO/667/2004 Neutral Citation Number [2004] EWHC 2566 (Admin)IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION THE ADMINISTRATIVE COURT Royal Courts of Justice StrandLondon WC2 Tuesday, 26th October 2004 B E F O R E:MR JUSTICE RICHARDS - - - - - - -THE QUEEN ON THE APPLICATION OF ENTERTAINU LIMITED (CLAIMANT)-v- (1) THE SECRETARY OF STATE FOR THE TRANSPORT, LOCAL GOVERNMENT AND THE REGIONS(DEFENDANT) (2) WESTMINSTER CITY COUNCIL (DEFENDANT)- - - - - - -Computer-Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)- - - - - - - MR S HOCKMAN QC and MR K LEIGH (instructed by Lucas McMullan Jacobs, London E10 7AA) appeared on behalf of the CLAIMANTMR A SHARLAND (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANTThird Respondent did not appear and was not represented.- - - - - - -J U D G M E N T1. MR JUSTICE RICHARDS: The claimant company runs what is known as a hostess bar in the basement of premises at 26 Wardour Street, London W1. The second defendant, Westminster City Council, refused it planning permission to continue that use. The council also issued an Enforcement Notice requiring the use to cease. The claimant appealed under section 78 of the Town and Country Planning Act 1990 against the refusal to grant planning permission, and appealed under section 174 of the 1990 Act against the Enforcement Notice.2. By a decision dated 12th December 2002 an Inspector appointed by the First Secretary of State dismissed both appeals. That decision was successfully challenged in the Administrative Court and the Secretary of State appointed a new Inspector to re-determine the appeals. Following an inquiry the new Inspector issued a decision on 12th January 2004 by which he too dismissed both appeals.3. The claimant now challenges that fresh decision under section 288 of the 1990 Act and, in so far as it relates to the Enforcement Notice, appeals against it under section 289, permission to appeal having previously been granted. The issues in the section 288 challenge and the section 289 appeal are the same, since the only basis upon which the Enforcement Notice was resisted was that planning permission should be granted for the use in question. Accordingly the question in each case is whether the Inspector's conclusion that planning permission should not be granted was lawful.The decision 4. In paragraph 2 of his decision the Inspector identified two main issues: first, the impact of the use of the premises as a hostess bar upon the amenities of nearby residents and, secondly, the effects of this use upon the character and appearance of the Soho Conservation Area. In paragraph 3 he dealt with the broad policy framework, including the adopted City of Westminster Unitary Development Plan. In paragraph 4 he stated that the policies in that plan were largely carried forward in the replacement Unitary Development Plan, Second Deposit Version. However, that also contained a new policy TACE 13, specifically for sex-related uses. That policy is in these terms: "Planning permission for sex-related uses will not be granted throughout Westminster but in exceptional circumstances will be considered in the area shown on Map 8.5 [which includes the relevant part of Soho]. Within this area, applicants will have to demonstrate that there will be no adverse effects on: - residential amenity ... - the amenity, character and function of the area ..." 5. The Inspector took the view that TACE 13 was the only policy in either the adopted UDP or its draft replacement that was directly relevant to sex-related uses in Westminster, and that the contents of TACE 13 would be largely determinative of the outcome of the appeals. He also took the view that all the criteria in TACE 13 had to be satisfied before any judgment fell to be made about the exceptional circumstances limb of that policy. If any of the criteria could not be met, the appeals simply failed without the need to consider the question of exceptional circumstances. 6. In paragraph 7 of the decision he found that the only criteria of TACE 13 which could be argued not to be met by a hostess bar in this location were its impact upon residential amenity and its effects upon the character and function of the area. In relation to residential amenity he found, in paragraphs 8 and 9, that the hostess bar functioned in a manner that had no appreciable impact on the amenities of any resident living close to the premises. 7. In relation to effects upon character and function of the area, the Inspector examined the history of the Soho Conservation Area, including the development of Chinatown. He said in paragraph 12 that Wardour Street south of Shaftesbury Avenue (which is where the appeal premises are located) was more mixed in character than some streets which presented an almost uniformly Chinese appearance. In that respect he accepted that Wardour Street represented a zone of transition between Chinatown and its immediate surroundings where the oriental influence was much more muted or non-existent. He said that the question then arose whether the presence of a hostess bar in this transitional zone harmed the character of the conservation area, in which case the use would be unacceptable, or whether its effect was no worse than neutral, in which case these activities could remain. 8. In paragraphs 14 and 15 he observed that signation as a conservation area had not extinguished the overt sex industry in Soho, but had brought about its retrenchment. The main sex-related area remained around Brewer Street and adjoining streets to the north of Shaftesbury Avenue. Overt sex-related uses elsewhere in Soho were quite widely scattered. None were to be found at the western end of Chinatown other than at the appeal premises. The only other examples of the sex industry nearby being prostitutes' flats at the western end of Lisle Street. Their external manifestation, in the form of cards fixed to corridors, visible only when entrance doors were left open, had little or no visual impact on the street scene. 9. That brought the Inspector to paragraph 16 which is central to the present case: "In contrast, the hostess bar at the appeal site, with its obvious outdoor advertising material and its distinctive entrance, is separated from the main sex-related area in Soho by the wide and busy thoroughfare of Shaftesbury Avenue. Even in a street of mixed western and oriental traditions and signage, in my professional judgment the appeal premises appear as an obtrusive and out of place element within the street scene. It is out of character and different in its visual form from the neighbouring properties and frontages, none of which can be described as being similar in appearance to other sex-related activities in this part of Soho. In these circumstances, I consider that this particular use in this location neither preserves nor enhances the character or appearance of the Soho Conservation Area. I also conclude that the retention of this use would not comply with the character or function of the area, (the third bullet point of Policy TACE 13) and the failure to satisfy this criterion is also fatal to these two appeals."10. It is to be noted that no distinction in terms of reasoning is drawn between the effect on the character and appearance of the conservation area and the effect on the character and function of the area for the purposes of TACE 13. This, coupled with the way in which the main issues are identified in paragraph 2 of the decision, leads Mr Hockman QC, for the claimant, to submit that the focus for present purposes can be on the earlier part of paragraph 16 where the reasons for the adverse effects are given. As to those reasons he says that there are two essential matters identified by the Inspector...

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