The High Court has quashed a grant of planning permission by St. Albans City and District Council to a café development at the Secret Garden Café, George Street, St Albans (R (oao Rodwell) v St Albans City and District Council). Constanze Bell acted for the successful claimant, a local resident.

On 1 September 2020, an appeal against a refusal to grant planning permission was refused by a Planning Inspector. The Cafe had applied to increase the area available for outdoor seating, to remove the limit on the number of outdoor tables and diners and to extend the opening hours to 8am to 9pm on Thursday to Saturday and 8.30am to 5pm on Sundays and Bank Holidays. The Inspector refused the appeal on the basis of harmful effects on the living conditions of neighbours. In October 2020 a fresh planning application was made which differed only slightly from the proposal before the Inspector, seeking a closing time of 8pm on Thursday and Friday rather than 9pm. Officers recommended refusal of the application but members voted to grant planning permission.

It was agreed that there was a duty to give reasons regarding the decision to grant planning permission and that the reasons given must be intelligible and adequate.

The High Court held that members’ decision to grant permission needed to explain why the October 2020 application should be approved when the markedly similar appeal scheme had been so comprehensively rejected on the grounds of residential amenity. There was no adequate explanation. The reference in the reasons to “the reduction in proposed opening times [being] sufficient to overcome residents’ concerns” was a conclusion and not a reason. The Court held that the Defendant’s interpretation of its own reasons led to internal contradictions and was impermissible in its “overly legalistic approach”.

Whilst the High Court rejected the rationality ground HHJ Bird sitting as a High Court Judge observed: “it is surprising that the defendant felt that a minor change to the opening hours for 2 out of 7 days rejected in 2019 could possibly lead to the conclusion that there was no longer an interference with amenity”.

This case will be of interest to 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.

Constanze was instructed by Rob Pattinson and Rebecca Taylor of Knights PLC.

View the judgement here



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