Jaks Bars v Secretary of State: Planning Hours Extension Appeal Dismissed

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2. Jaks Bars & Restaurants Limited v Secretary of State for Housing, Communities and Local Government & Anor

Jaks Bars & Restaurants Limited v Secretary of State for Housing, Communities and Local Government & Anor

[2026] EWHC 966 (Admin)

Jaks Bars & Restaurants Limited v Secretary of State for Housing, Communities and Local Government & Anor

[2026] EWHC 966 (Admin)

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1. This claim is brought under s.288 of the Town and Country Planning Act 1990 (“ the 1990 Act ”). The Claimant challenges the Planning Inspector’s decision dated 11 February 2025 to dismiss its appeal against the refusal of the Second Defendant to grant planning permission to extend the opening hours of Jaks Bar and Restaurant, 531-533 Basement King’s Road, Kensington and Chelsea, London SW10 0TZ (“the Premises”) from 1am to 2am Thursdays to Saturdays.

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1. The Claimant operates a restaurant and bar from the Premises. The Premises has two entrances (Lots Road and King’s Road). The Lots Road entrance is closer to residential dwellings including those located at Westfield Close. The Second Defendant is the local planning authority and the licensing authority.

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1. Permission to proceed with the claim was granted by Robert Palmer KC sitting as a Deputy High Court Judge at an oral renewal hearing.

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1. This judgment is structured as follows:-

a. Background

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b. The Inspector’s Decision

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c. The Statutory Provisions and Legal Framework

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d. Overview of Submissions

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e. The Inspector’s Approach to the Licensing Impact Assessment

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f. The Inspector’s Approach to the Licensing

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g. The Inspector’s Approach to Granting a Temporary Planning Permission

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h. Summary of Conclusions and Relief

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Part A: Background

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Planning History

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1. Planning permission was granted by the Second Defendant on 2 July 2014 (ref: PP/14/00873) for a “change of use from nightclub (sui generis) to restaurant/bar (A3/A4) (retrospective)” subject to conditions. Condition 4 set opening hours including until midnight Thursday to Saturdays.

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1. By an appeal decision dated 16 February 2016, a Planning Inspector granted planning permission pursuant to s.73 of the 1990 Act. The resulting permission authorised opening hours until 1am Thursday to Saturday subject to a new condition which provided that the “doors of the Lots Road entrance shall be closed to customers (other than for disabled access and means of escape) between 0:00 and 02:00 on Thursdays to Saturdays”.

The Planning Application to Extend Hours

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(i) Supporting Material

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1. The planning application was made on 28 February 2024 pursuant to s.73 of the 1990 Act to vary condition 4 by allowing opening until 2am on Thursdays to Saturdays.

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1. The application was accompanied by a planning statement dated 16 February 2024 (“PS”) , a noise impact assessment dated 26 January 2024 prepared by Richard Vivian of Big Sky Acoustics (“the NIA”) and a Licensing Impact Assessment prepared by David Gair of Shield Associates dated 12 January 2024 (“the LIA”).

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1. The PS referred to the NIA (at para 3.18) as demonstrating that the proposed additional trading hours would not adversely impact upon residential amenity at this location. The PS referred to the LIA as follows.

At para 3.19, the PS stated:

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“The applicant has also commissioned a licensing impact assessment by Shield Associates, to observe and monitor any impact of the licensed operation of the venue on the surrounding community (see Appendix 3). The Impact Assessment concludes that the venue takes the prevention of crime and public nuisance seriously and as such has a number of initiatives in place to support the security team in being effective and robust in their response”.

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At para 5.13 the PS stated:

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“Staff will manage the application premises to ensure that any noise created would be kept to an acceptable level whereby no detriment to local amenity would result. Included as Appendix 3 and Appendix 4 to this Support Statement are the applicant’s policies for managing arrival of customers and their dispersal. The Licensing Impact Assessment demonstrates that these polices are very effective in managing the current operation up to its current closing time and beyond”.

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1. The PS referred to the role of the licensing system in providing relevant safeguards to ensure that the venue operated in a way which did not cause disturbance to members of the public. The relationship of licensing and planning was encapsulated in para 5.21 as follows:

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“The requirement for a Premises Licence and the controls that would be exercised over the operation of this site by both the licensing regime and the environmental protection legislation, do not mean that the planning system should ignore or overlook residential amenity issues. They will still need to be examined in the planning system. However, that examination has to take account, as a very material consideration, the fact that all of these matters will also need to be examined on a continuing basis as part of the Premises Licence approved by the Licensing Authority, which is the same Council that will consider this planning application”.

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1. The reference to licensing being able to examine impacts on a continuing basis encapsulated the idea that, under the licensing system, it is possible for premises licences to be reviewed if representations are made. This was specifically referenced in para 5.18 of the PS. A key point being emphasised in the PS was that licensing was a responsive system capable of addressing any disturbance issues which might arise.

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1. The NIA set out the results of an attended noise survey carried out during the evening and night of the 3-4 November 2023 while the Premises were operating under a temporary event notice (TEN). The TEN was an authorisation from the licensing authority to allow premises to stay open until 2am on a particular occasion. The NIA explained that noise measurements were made in continuous samples of 1-second intervals. Paragraph 6.4 indicated that a large amount of noise data was gathered during the survey which is simplified and summarised in the report. Figure 7 contained measurement data summary and figure 8 showed continuously logged noise data at the measurement position on Lots Road opposite Westfield Close reported in 15 minute samples.

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1. The NIA referred to the Licensing Act 2003 (in para 4.28) as “a separate, and powerful, relevant regulatory regime”. It stated: “Because the premises is licensed there is also an opportunity for scrutiny of the premises licence and all licensable activities at the site at any time under the Review process provided by the Licensing Act 2003”. In para 4.32, it explained the licensing objective of preventing public nuisance as broad and stated that it “may include in appropriate circumstances, the reduction of the living and working amenity and environment of other persons living and working in the areas of the licensed premises”.

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1. The conclusion of the NIA (at para 12.3) was:

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“The principle of use is established at the application site until 01:00 hrs, and at other locations in the immediate area to notably later hours. All noise from activity inside the premises is contained in the building envelope and this had already been demonstrated. Calculations indicate that noise from patrons as they leave will be below the existing average noise level for the area. There is no correlation between customer arrivals, closure of the Lots Road entrance or end of evening customer dispersal at the application site and the average noise level measured at the noise logging position oppose Westfield Close”.

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1. The LIA indicated that Shield Associates (a consultancy of former police officers with experience in licensing) had been instructed to undertake visits to observe and monitor the impact of the operation of the venue on the surrounding community. As recorded in para 2.1 of the LIA, their instructions were to:-

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“Assess the effectiveness of the entry protocols deployed at the venue and potential impact of visitors to the club parking their cars in the nearby streets, especially Lots Road.

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Observe and assess the dispersal and end-of-night process of the venue, up to and including its closure and the management of those leaving the club out onto and along King’s Road.

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Observe and assess the routes taken by those leaving the venue, whether they leave on foot, by car or public transport options including pre-booked cabs and night buses.

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Observe and assess levels of noise, potential public nuisance and/or disorder linked to the dispersal from the venue and any pro-active or reactive interventions used by the security team.

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Comment on a proposal to extend the licensing hours of the venue until 02.00 hours in relation to whether they can still support the licensing objectives”.

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1. The LIA set out conclusions based on the observations made. These indicated that the venue was effective in managing dispersal and that there was extra focus on Lots Road and Westfield Close. The report included a log of observations made on five visits (including the evening of the night of 3-4 November 2023 (which was the night on which the noise survey analysed in the NIA had been undertaken)). From those observations, the LIA concluded (at para 6.4): “the venue is supporting the licensing objectives in relation to the prevention of crime and public nuisance by providing robust and enhanced security provisions in the area of principal sensitivity namely Westfield Close. There are policies and procedures in place to support the proactive security response and maintain order and control in the vicinity of the venue”.

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1. Thus the supporting material to the planning application consisted of: (a) a technical noise report (the NIA), (b) the LIA, which explained how the venue was operating to manage noise and disturbance issues, and (c) submissions (in the PS in particular) as to how the licensing scheme was well suited to manage any noise issues which could arise on a continuing basis due to the availability of reviews of the licence.

(ii) Consultation responses

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1. The planning application met with objections. In consultation responses, local residents expressed concern to the Second Defendant as to the operation of the Premises and disturbance which they said they had experienced.

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1. The Second Defendant’s Environmental Health Officer (EHO) objected to the proposal. His consultation response dated 8 April 2024 critiqued the NIA. The concerns expressed included (a) “the noise data does not specify the duration of each measurement and the peaks, and troughs within the data”; (b) there was a lack of commentary about the nature of causes of the noise in the data; (c) “I would have expected to see information on any short duration high noise levels audible; whether people could be heard talking or shouting, and detail of the external management at the time of the observations. The information is unfortunately not sufficient to paint the full picture of what was happening during the survey”. The EHO noted the lack of any explanation of how the number of people observed on the night of the survey (3/4 November 2023) related to the capacity of the venue.

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1. It is necessary to mention two features of the evidence. First, at least one resident sent to the Second Defendant “video evidence” (said to show disturbance) but the videos were not publicly available and were not part of the evidence base submitted to the Inspector. Second, residents at Westfield Close had not authorised noise monitoring equipment to be used within or on the external façade of their building. The NIA had accordingly adopted a proxy measuring point (as is reflected in para 12.3 of the NIA set out in para 14 above).

(iii) Determination

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1. The application by the Second Defendant was refused under delegated powers on 30 April 2024. The reason for refusal was:

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“Due to the increased hours of operation in the evenings on Thursday, Friday, Saturday, the proposal would result in an unacceptable increase in noise and disturbance to local residents which would materially harm the living conditions of neighbouring properties. The noise assessment does not adequately deal with the impacts of noise and the proposed noise mitigation would be insufficient and therefore the proposal would be contrary to policies CL5, CE6 of the Local Plan 2019 and requirements as set out in the Noise PPG and NPPF”.

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1. The Second Defendant’s delegated report drew on the criticisms of the NIA made by the EHO and concluded the noise assessment did not adequately deal with the impacts of noise and the proposed noise mitigation would be insufficient.

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1. Neither the EHO’s consultation response nor the Council’s delegated report referred to the LIA. Neither discussed the relationship between planning and licensing.

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1. Following the refusal Mr Vivian (the author of the NIA) contacted the Second Defendant’s EHO (Mr McIIroy). In an email exchange summarising their discussion, Mr Vivian sought confirmation that noise breakout from the building was not an issue and the Second Defendant’s concerns related to “dispersal and public nuisance issues”. It was recorded that there was no additional data which could be provided which would address the concerns. Mr McIIroy confirmed that this did summarise their discussions accurately. Mr McIlroy noted that videos which the Second Defendant had received show a significant loss of amenity to residents.

The Planning Appeal

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1. The Claimant appealed the refusal of planning permission to the Planning Inspectorate. In the appeal form, the Claimant requested determination of the appeal by a hearing. It identified relevant supporting documents to the appeal as including the PS, NIA and LIA.

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1. The Planning Inspectorate assigned the appeal to be determined by written representations.

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1. The Claimant’s statement of case commenced with a paragraph referring the Inspector to the PS and its appendices which set out its principal case. One of those appendices was the LIA. Otherwise, there was no specific reference to the LIA in the appeal statement of case. It emphasised the role of licensing in safeguarding residential amenity (paras 18-20).

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1. The Second Defendant’s response reiterated the basis on which planning permission had been refused and noted that the Appellant’s statement of case did not address the criticisms of the NIA.

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1. In a final comments document, the Claimant produced a sample TEN for an event on 30 November 2024. The TEN contained twenty conditions many of which related to supervision arrangements (including street guardianship) relevant to dispersal of customers. It referred to the fact that there had been 26 such notices in the last year and contended that these had been agreed by the EHO and no complaints had been made. It highlighted that the Claimant “employs staff to stand opposite Westfield Close” to avoid disturbance (para 10).

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1. The Council responded noting that it was relying on the “failings of the acoustic report” which had not been addressed.

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1. The videos which had been referred to as evidencing disturbance were not shared with the Planning Inspectorate. The Council’s concerns in the planning appeal were informed by these videos but they were not part of the evidence base which was put before the Inspector. The Claimant’s case was that there had been no incidents on any of the 26 occasions that TENs had extended the licensing hours until 2am.

Part B: The Inspector’s Decision

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1. The Inspector’s decision is dated 11 February 2025 (“DL”). As she records in para 10 of DL, she visited the local area (on Thursday 23 January 2025) in the daytime and the evening. In para 6 of DL the Inspector identified the main issue as being “the effect of the increased hours of opening upon the living conditions of local residents by way of noise”. She described the area in paras 7-10 of DL. In para 11, she referred to the NIA. In para 12, she noted the conflicting accounts on the extent of complaints – treating the complaints from residents made in the planning process as material considerations.

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1. At paragraph 13 the Inspector stated:

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“ I read from their consultation that the EHO has reservations regarding the collection of data relating to the presented noise survey despite the comments from the appellant that the EHO confirmed there ‘is no further information sought’. In particular, the EHO raise concerns regarding how the noise data has been collected and whilst it was measured in one second intervals, the survey did not specify the duration for each measurement ‘and the peaks and troughs within the data’. They explain that they require continuous data over a period of time. No specified commentary against each of the measurements has been presented and no context or detail submitted. The precise source of noise is not presented to be able to accurately assess what has generated the noise levels the survey picks up on. Amongst their findings, the EHO also notes the lack of commentary surrounding external management of the premises in an attempt to alleviate noise and disturbance. I also note that there is an omission relating to the capacity of the venue when the survey was being undertaken and how this would translate should the venue be operating at full capacity, and the demands this places on the venue to mitigate noise impacts. This is especially significant as the venue has a premises licence to hold over four hundred people, according to an objector. This figure has not been disputed by the appellant. All things considered, the noise survey to my mind has considerable shortcomings”.

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1. In para 14, the Inspector stated:

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“The appellant cannot reliably say for sure that even if the premises is run as both a bar and restaurant until 02:00 Thursday to Saturday that most patrons would not be in attendance up until closing time, or indeed leave the venue over a gradual dispersion. The noise assessor explains they observed gradual dispersion at the time of their survey. However, the noise survey occurred over one occurrence with no numbers of patrons to the venue listed at that time. Furthermore, there is no guarantee that even if gradual dispersion from the venue occurred, would not have detrimental effect on the living conditions of occupants”.

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1. In para 15, the Inspector referred to the dispersal and arrivals policies and assessed that she did not consider they could be enforceable as planning conditions as they were reliant on the goodwill of patrons.

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1. In para 16, the Inspector addressed the relationship of licensing and planning in the following terms:

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“A premises licence has been granted by the Council to the appellant. This license has its own specific requirements and is governed under separate control. Even though the licensee is required to accord with the terms of the licence, and this comes under the governance of a separate regulatory part of the Council, as is my duty, I must consider the proposal under the planning regime”.

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1. In para 17, she addressed the possibility of granting a 12 month temporary planning permission as follows:

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“They also comment that a temporary extension to their opening hours would be acceptable to them. However, based on my findings, a temporary permission for up to twelve months would not be appropriate, I do not consider this would meet the six tests of paragraph 56 of the Framework”.

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1. The Inspector discussed the benefits of the proposal in paras 18 and 19. She observed in para 19, in respect of the Claimant’s reliance on being a responsible operator that this was “not substantiated by any meaningful evidence and carries little weight in the round”. In para 20, she concluded that “without sound reasoning that the increased hours of opening would not cause undue noise and disturbance to local residents, I cannot be certain the living conditions of the local residents would be acceptably safeguarded”. She therefore concluded in para 21 that the proposal “would not accord with the policies CD9 and GB8 of the Kensington and Chelsea Local Plan in its aims to protect living conditions” as well as the “aims of national noise guidance”. She accordingly found conflict with the development plan and dismissed the appeal.

Part C: Statutory Provisions and Legal Framework

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1. It is necessary to refer in outline to the statutory framework which applies to the licensing of premises.

a. A premises licence is required to conduct licensable activities, including sale of alcohol, late night refreshment (hot food and drink after 23:00) and provision of regulated entertainment including live and recorded music (see s.1 and 136 of the Licensing Act 2003 (“ the 2003 Act ”)). The licence does not run with the land. An application is necessary to transfer a licence to a new licence holder (s.42 of the 2003 Act).

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b. The premises licence sets out the hours for the conduct of licensable activities and opening hours, together with conditions, including mandatory conditions contained in Part 3 of the 2003 Act itself and subordinate regulations, and any conditions which have been attached to the premises licence by the licensing authority.

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c. In order to vary the hours or other conditions, an application for a licence variation is required (s. 34 of the 2003 Act). The application must be duly

advertised and may be objected to by a “responsible authority” (including

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environmental health or licensing) or any other person, such as a local resident.

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d. In the event of any objection, a hearing follows before a Licensing Sub-Committee, which may grant the application as asked, refuse it or grant it with further conditions (s.35 of the 2003 Act). The steps it takes must be those which it considers appropriate to promote the licensing objectives set out in s 4 of the 2003 Act, which include the prevention of public nuisance.

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e. The statutory guidance under s.182 of the 2003 Act explains that public nuisance is not narrowly defined and may include in appropriate circumstances the reduction of the living and working amenity and environment of other persons living and working in the area of the licensed premises (para 2.22).

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f. Any person or responsible authority (including the licensing authority itself or the environmental health authority) may apply to review a licence on the grounds that the licensing objectives are being harmed (s. 51 of the 2003 Act). Other persons or responsible authorities are entitled to join in the review. The review application is determined at a hearing, at which the Licensing Sub-Committee have powers, including revocation and suspension of the licence, reducing hours of operation or adding conditions to the licence (s.52 of the 2003 Act) to resolve any concerns.

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g. A person wishing to conduct licensed activities may also serve a temporary event notice (“TEN”): (s. 100 of the 2003 Act). TENs are used to secure temporary extensions to licensing hours. Any objection to the notice, which may be made by the environmental health authority or the police (s. 104 of the 2003 Act), may be resolved by attaching conditions to the notice, provided that these conditions are drawn from the premises licence (s. 106 A of the 2003 Act).

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1. The planning application was made under s.73 of the 1990 Act (application for permission without complying with conditions previously imposed). The determination of whether such planning permission should be in accordance with the development plan unless material considerations indicate otherwise (s.38(6) of the Planning and Compulsory Purchase Act 2004).

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1. The principles for reviewing Inspector’s planning decisions are encapsulated by the Court of Appeal in St Modwen v SSCLG [2018] PTSR 746 at para 6 and 7. These passages distil well known judicial guidance that decisions should be read in a reasonably flexible way and not subjected to hypercritical scrutiny due to the dangers of “excessive legalism infecting the planning system”.

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1. It is common ground that the Inspector was required to give reasons for her decision. The written representations procedure is governed by the Town and Country Planning (Appeals) (Written Representations) (Procedure) (England) Regulations 2009/452. There is no express requirement in those regulations for reasons to be given for the decision. However, in the Supreme Court in R (CPRE Kent) v Dover District Council [2018] 1 WLR 108 at para 26 Lord Carnwath JSC giving the judgment of the Court stated as follows:

" There is no corresponding statutory rule applying to decisions following a written representations appeal. However, it is the practice for a fully reasoned decision to be given. It has been accepted (on behalf of the Secretary of State, and by the Administrative Court) that there is an enforceable duty, said to arise "either from the principles of procedural fairness … or from the legitimate expectation generated by the Secretary of State's long-established practice …": Martin v Secretary of State for Communities and Local Government [2015] EWHC 3435 (Admin) at [51] per Lindblom LJ".

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Part D: Overview of Submissions

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1. There are seven grounds of challenge. In oral submissions, Mr Kolvin KC leading Dr Bowes for the Claimant grouped them under three broad headings.

a. First, the Inspector failed to “grapple” with the LIA.

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b. Second, the Inspector failed to treat the licensing regime as a material consideration and/or address its competence to meet the planning objection which she had identified.

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c. Third, the Inspector failed to give any intelligible reason for refusing to grant a temporary planning condition (ground 6).

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1. Under the first heading, there are two grounds of challenge.

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1. First, the Inspector failed to have regard to the LIA which was an obviously material consideration. Second, the Inspector failed to give adequate reasons for rejecting the conclusions of the LIA.

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1. The second heading covers four grounds of challenge. The main ground (as the case was put orally) was ground 3 in the amended grounds of challenge. This was that the Inspector failed to take account of a material consideration, namely the existence and role of the licensing system in protecting residents from nuisance and/or exercising a planning judgment as to whether to grant the application on the basis that any problems could be solved by the licensing system.

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1. Permission to amend the claim was granted (by consent) by David Elvin KC sitting as a Deputy High Court Judge dated 28 November 2025 (after permission to pursue a statutory challenge had been granted by Robert Palmer KC on 22 September 2025). There is a procedural issue whether permission to proceed is required for ground 3. I address that below.

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1. Other grounds under this heading were not pressed in oral submissions. These were: (a) ground 3A (which was ground 3 in the original ground of claim), the Inspector failed to take account of an obviously material consideration namely the conclusions of the licensing authority, (b) ground 4, the Inspector failed to give adequate reasons for departing from the conclusions of the licensing authority, (c) ground 5, the Inspector failed to take account of paragraph 201 of the NPPF.

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1. In responding to the claim, Ms Sargent for the First Defendant emphasised how the Inspector had limited material before her as to the detail of the premises licence. Ms Sargent submitted that the Inspector’s decision reflected the way the matter was argued in the written submissions before her. The Inspector was entitled to weigh objections to the proposal and reach a planning judgment as to the adequacy of the NIA.

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1. Ms Sargent accepted that the LIA was a material consideration and that it was not referred to in DL. However, she relied on the Inspector’s witness statement in these proceedings dated 12 September 2025 which stated that: “All documents submitted, including the [LIA] were carefully considered and balanced to inform the decision I arrived at and detailed within my DL”.

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1. Ms Sargent submitted that the Inspector’s reasons were adequate and reflected the way the case was put to her. She emphasised that the Inspector was not required to give “reasons for her reasons”.

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1. In respect of the grounds under the second heading, Ms Sargent submitted that the Inspector had dealt with the licensing regime correctly.

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1. On the temporary consent issue, Ms Sargent submitted that this flowed from the Inspector’s conclusions as to the adequacy of the NIA.

Part E: The Inspector’s Treatment of the LIA (grounds 1 and 2)

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1. The Inspector did not refer to the LIA in her decision.

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1. Mr Kolvin KC submitted: (a) the LIA was material in its own right; (b) it was relevant to the perceived shortcomings with the NIA and (c) it addressed some of the concerns which the Inspector set out in the DL.

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1. Ms Sargent accepted that the LIA was a material consideration. She relied on the Inspector’s witness statement which explained that the LIA had been “considered and balanced”. Ms Sargent submitted that there was no error in the decision but even if there was, the Inspector’s decision would necessarily have been the same due to the inadequacies in the NIA which the Inspector had identified.

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1. In addressing these submissions, I start by identifying the nature of the noise issue. It was common ground that the key focus of the noise issue was the potential impact on residents from the dispersal of patrons from the Premises. There was particular sensitivity in respect of the Lot Road exit (generally) and any impact on Westfield Court in particular.

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1. It is common ground that there is overlap between the licensing objective of the prevention of public nuisance (in s.4 of the Licensing Act 2003) and planning issues relating to noise and residential amenity.

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1. The statutory guidance under s.182 of the 2003 Act explains that public nuisance is not narrowly defined, and may include in appropriate circumstances, the reduction of the living and working amenity and environment of other persons living and working in the area of licensed premises (see para 2.22).

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1. The LIA included an assessment of the efficacy of the operation of the security process during five TEN occasions when the Premises were open until 2am. The LIA included detailed commentary as to what was observed on those nights in terms of the operation and the management of the dispersal and an overall assessment of the efficacy of the management of the Premises on those occasions.

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1. Mr Kolvin submitted that this went right to the heart of issues about which the Inspector had expressed concern. In particular, he contended:-

a. In para 13 of DL, the Inspector highlighted the EHO’s comment about the lack of assessment of external management of the premises in the NIA. However, this was a precise focus of the LIA.

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b. In para 14, the Inspector had noted that the NIA assessed gradual dispersion on only one observation. The LIA contained a detailed account of well managed dispersal on five occasions.

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c. The Inspector considered that there was no guarantee that a gradual dispersal would not have a detrimental effect on the living conditions of occupants (DL 14). However, this judgment was formed without reference to the five occasions documented in the LIA which suggested that there were no impacts.

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d. In para 15, the Inspector commented in general terms on concerns about the arrivals and dispersals policy being dependant on the goodwill of patrons but she did not relate this to the evidence in the LIA as to how the policy had operated on the five nights in question.

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e. In paragraph 19, the Inspector commented on the Claimant’s reliance on operating responsible management as being “not substantiated” but she did not relate this assessment to the specific evidence of how the management operated in the LIA.

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f. In para 20, the Inspector remarked that there was no sound reasoning that the increased opening would not cause undue noise and disturbance. It is unclear whether she included the LIA in this assessment and, if she did, what the basis for considering that the LIA did not show effective management of dispersal.

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1. Ms Sargent submitted that the LIA did not cure “many” or “enough” of the defects in the NIA. She contended that the criticisms of the NIA were “internal” to the NIA and could not be cured by a separate document which had not been prepared by technical acoustic experts.

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1. I reiterate the narrow focus of the contested noise issue. The Second Defendant and the Claimant were focussed on the noise impact of late night dispersal. This focus was specifically confirmed in the email exchange between the Appellant’s noise consultant and the Second Defendant’s EHO. It is similarly apparent from the submissions made to the Inspector. That issue (the impact of dispersal of patrons) is situated in an area of overlap between the planning system and the licensing objective of preventing public nuisance. The LIA sought to address the impact of dispersal directly. It explained what management strategies were in place and undertook an expert assessment of how effectively the premises carried them out.

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1. Thus, whilst the NIA read on its own gave rise to questions as to the nature of what had been measured and observed, the evidence put forward by the Claimant was not limited to that document. The two documents (the LIA and the NIA) taken together offered a broader understanding of what the noise climate relevant to dispersal consisted of and how it had been managed.

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1. The two grounds under this heading are closely connected. The first ground of challenge relates to the Inspector’s failure to have regard to the LIA and the second relates to the adequacy of the Inspector’s reasons.

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1. The legal foundation for the first ground of challenge is the scope of the duty to have regard to material considerations was considered by the Supreme Court in R(Friends of the Earth Ltd) v. Heathrow Airport Ltd [2021] PTSR 190 at [118]-[119], in which the Court endorsed the formulation by Cooke J in CREEDNZ Inc v. Governor General [1981] NZLR 172, 183 that:

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“there will be some matters so obviously material to a decision on a particular

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project that anything short of direct consideration of them by [the public

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authority] … would not be in accordance with the intention of the Act.”

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1. Mr Kolvin contends that the concept of “direct consideration” must include grappling with LIA report.

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1. Ms Sargent submits that the Inspector’s witness statement answers this ground of challenge. The claim asserted that the Inspector had left out of account the LIA. The Inspector has provided the factual answer that she did not. Her answer demonstrates, Ms Sargent submits, “direct consideration” as envisaged by Cooke J in CREEDNZ.

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1. The evidence of the Inspector states that the LIA was “carefully considered and balanced to inform the decision I arrived at and detailed within my DL ” (emphasis added). If I accept that evidence, it answers the assertion in the first ground of challenge that the LIA was not considered.

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1. It was not argued before me that the Inspector’s witness statement was inadmissible. I accept it as admissible. It seeks to clarify what material the Inspector considered. I consider that is a factual question and does not breach the permissible limits for evidence encapsulated by Chamberlain J in Inclusion Housing Community Interest Company v Regulator of Social Housing [2020] EWHC 346 (Admin) at para 78. I treat it as accurate evidence. I therefore conclude that the Inspector’s witness statement provides an answer to the first ground of challenge.

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1. However, that leads directly to the closely related ground 2 which is the reasons challenge. The Inspector’s witness statement is carefully worded. It says that she considered the LIA and balanced the evidence to inform her decision which is “detailed within my DL”. Therefore, the witness statement does not purport to assist in answering the reasons challenge. To assess ground 2 therefore, the focus is on the decision itself.

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1. The DL itself is silent on the LIA. It gives no indication of how the LIA featured in the decision making process. An informed reader of the Inspector’s decision does not know whether the Inspector considered that no weight should be attached to the LIA, and if so, why she so concluded. This is significant because there are elements of her reasoning, such as her emphasis on the limited number of observations in the NIA and its absence of assessment of external management, where the contents of the LIA directly bear on concerns which the Inspector expresses.

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1. That silence gives rise to doubt as to how the LIA was considered. As Mr Kolvin put it, the Inspector did not reject the conclusions of the LIA or explain why she had not been assisted by it.

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1. The legal principles applying to the duty to give reasons are well known. They are authoritatively summarised out in the House of Lords’ decision in South Bucks DC v Porter (No 2) [2004] 1 WLR 1953 at para 36.

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1. How they apply is always contextual (as noted by HHJ Worster sitting as a judge of the High Court in NG8 2RJ Limited v SSHCLG [2023] EWHC 470 (Admin) at para 36).

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1. There is no requirement that an Inspector deal with every material consideration. The duty is to state the conclusions on the principal controversial issues. When a planning appeal is being dismissed, the reasons should enable the disappointed party to understand the basis on which their appeal has not succeeded (see in particular the citation from In re Poyser and Mills’ Arbitration [1964] 2 QB 467 (that reasons must deal with the substantial points raised) which was cited with approval by Lord Bridge in Save Britain’s Heritage v Number 1 Poultry [1991] 1 WLR 165A and referred to in para 27 of South Bucks v Porter).

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1. The guidance given by Lord Lloyd in Bolton v Secretary of State for the Environment (1995) 71 P&CR 309 at 314-5 (referred to in para 34 of South Bucks v Porter) cautions that the focus is on the principal controversial issues and that it would be an unjustifiable burden to require reference to every material consideration or to deal with every argument.

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1. Applying those principles to the present case, it is relevant that this was effectively a single issue appeal. The main issue was the impact of the extended opening hours on the living conditions of local residents by way of noise. Within that topic, the critical point was whether the dispersal of customers would cause disturbance to local residents. The LIA went directly to that. It contained evidence of the management operation and an expert assessment of its effects on the locality framed around the public nuisance as a licensing objective. It was one of two expert reports relied upon by the Claimant. Moreover, as Mr Kolvin submitted, it went directly to matters about which the Inspector had expressed concern including the external management of the premises and the nature and effect of dispersal.

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1. The Inspector was not required to accept that evidence but in the absence of any reference to it, it is impossible to know what she made of it.

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1. The extent to which the LIA addressed the gaps left by the NIA and addressed other concerns which the Inspector had was an evaluative planning judgment for the Inspector to make. However, the absence of any reference to the LIA gives rise to substantial doubt about why she rejected it (if she did), how she approached its relevance (if she considered this) and why she considered that it did not address concerns which she had (when on the face of it the LIA appeared to address those points at least to some extent).

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1. I am conscious that decision letters are addressed to the parties who are familiar with the issues and that, in a written representation appeal, the way an Inspector addresses issues is shaped by the way the arguments were put. I recognise that, in the appeal submissions in the present case, the significance of the LIA was not highlighted. The Appellant did not specifically address the focus on the shortcomings of the NIA by pointing to the LIA specifically or explain how the overall evidence answered the shortcomings which had concerned the Second Defendant. Thus, there is some force in the submission which Ms Sargent makes that the Appellant did not “join the dots”. That is a fair criticism of the appeal submissions read by themselves. However, the grounds of appeal make it clear that the Appellant relied upon the PS and its appendices (which included the LIA). In the PS the significance of the LIA is highlighted as relevant to the effective external management of the premises (see paras 3.19 and 5.13). Given the obvious significance of this material to the question of the effectiveness of external management and dispersal (at least) and in the light of the Inspector’s own assessment that there was a lack of “sound reasoning” and “meaningful” evidence, I consider that it was incumbent on the Inspector to refer to the LIA and give an indication of how she had “considered and balanced” it to inform her decision. Absent any reference to it, the informed reader simply does not know how she balanced it in reaching her decision. Given its (accepted and obvious) relevance to the main (and only) issue in the case (noise and most specifically the impact of dispersal of patrons on the most sensitive noise receptors), I conclude that the Inspector failed to give adequate reasons in failing to refer to the LIA at all.

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1. I consider that the Claimant has been substantially prejudiced by this failure. The Claimant does not know from the appeal decision how this evidence of effective management was considered. It was relied on to show effective management of dispersal. The Inspector noted a gap in respect of external management of the premises (in the NIA) without referring to the LIA which was submitted to deal with that point. Without explanation, the Claimant cannot understand what role the LIA evidence had in the Inspector’s decision. This causes prejudice because the Inspector refused permission on the basis of the effect on residential amenity (i.e. in essence the impact of the dispersal of customers) without reference to a significant component of the Claimant’s evidence which was submitted to address that issue.

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1. I conclude therefore that the second ground of challenge succeeds. I consider relief further below.

Part F: The Inspector’s Approach to Licensing (grounds 3, 3A, 4 and 5)

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1. As noted above, there is a procedural issue relating to ground 3 which I consider after discussing its substantive merits.

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1. The legal principles concerning how the planning system operates alongside other systems of control were discussed by Mr Jeremy Sullivan QC (as he then was) sitting as a Deputy Judge of the High Court in Gateshead MBC v Secretary of State for the Environment (1993) 67 P&CR 179 at 188 in the context of the overlap between planning and pollution control. The Deputy Judge framed the appropriate approach as follows:

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“Where two statutory controls overlap, it is not helpful, in my view, to try to define where one control ends and another begins in terms of some abstract principle…… At one extreme there will be cases where the evidence at the planning stage demonstrates that potential pollution problems have been substantially overcome, so that any reasonable person will accept that the remaining details can sensibly be left to the EPA authorisation process.

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At the other extreme, there may be cases where the evidence of environmental problems is so damning at the planning stage that any reasonable person would refuse planning permission, saying, in effect, there is no point in trying to resolve these very grave problems through the EPA process. Between those two extremes there will be a whole spectrum of cases disclosing pollution problems of different types and differing degree of complexity and gravity. Reasonable people might well differ as to whether the proper course in a particular case would be to refuse planning permission, or whether it would be to grant planning permission on the basis that one could be satisfied that the problems could and would be resolved by the EPA process. But that decision is for the Secretary of State to take as a matter of planning judgment, subject, of course, to challenge on normal Wednesbury principles”.

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1. In applying that approach the Deputy Judge noted that the Inspector (in Gateshead) did not appear to have considered whether and, if so, to what extent his concerns could have been met by the EPA authorisation procedure. However, the Secretary of State had addressed that question in his decision letter “thereby remedying that omission”.

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1. The Court of Appeal upheld the Deputy Judge’s judgment with Glidwell LJ endorsing the reasoning (see (1994) 71 P&CR 350 at 360).

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1. The overarching point made by Mr Kolvin (in oral submissions on ground 3 of his amended grounds of challenge) is that the Gateshead principle applies to the relationship between planning and licensing. He submits it is well established that the presence of another regulatory regime, with overlapping powers to that of the planning system to control the land use consequences of development, is a material consideration. He further submits that the Inspector is not bound to leave the matter to be dealt with under the parallel regime, but nor may they treat themselves as duty bound to refrain from considering a) the competence of the other regime to deal with proposed impacts and b) whether to leave the matter to the other regime.

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1. Ms Sargent did not contest the Gateshead principle or its applicability to the relationship between planning and licensing in the present case. She submitted that the Inspector’s approach was consistent with it.

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1. Whether that is right turns on understanding para 16 of DL fairly in the context of the remainder of the Inspector’s decision.

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1. In para 16 of DL, the Inspector noted the existence of the licensing regime and indicated that she must consider the proposal under the planning regime.

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1. However, her analysis does not address how the licensing system was considered.

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1. The second stage of Mr Kolvin’s formulation is that the decision maker undertakes a fact specific decision as to how to approach the availability of other controls taking account of the circumstances of the case. He submits that no such stage is apparent in the reasoning of the Inspector.

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1. It is important to read the decision fairly and as a whole. I should reflect on whether this second stage is reasonably implicit from the way in which the Inspector explained her decision.

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1. In para 15 of DL, the Inspector expressed her view on the unenforceability of the dispersal policy and arrivals policy as planning conditions.

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1. The Claimant had emphasised that the licensing system was able to respond on a “continuing basis” to issues relating to residential amenity (see para 5.21 of the PS). In this context, the Inspector’s expressed concerns about enforceability in planning conditions begged the question of whether the related system (licensing) might be better placed to regulate, enforce and respond to such concerns. The responsive nature of the licensing regime had been particularly emphasised by the Claimant in the PS (see paras 10 and 11 above referring to para 5.18 and 5.21 of the PS).

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1. The Inspector’s decision was silent on how she had evaluated the capacity of the licensing system to protect residential amenity. This is despite the fact that this was a key component of the Claimant’s case.

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1. I consider that there is force in Mr Kolvin’s submission that the Inspector’s decision contains an equivalent “omission” to that attributed to the Inspector in the Gateshead case by the Deputy Judge. In Gateshead, the “omission” was cured by the Secretary of State addressing the suitability of the parallel regime. In the present case, a similar omission has not been rectified. The Inspector did not consider whether and to what extent her concerns might have been addressed by the licensing regime.

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1. Ms Sargent stressed that the Inspector did not have copies of the premises licence and that she was also only provided with one sample TEN. The TEN document which she had been shown (attached to the Claimant’s appeal response statement) did show the kind of controls which had been imposed (for example street guardianship conditions) – although the Inspector would not necessarily have been expected to have appreciated the specific features of the statutory scheme that these had to be derived from the main premises licence in question (s.106 A of the 2003 Act referred to in para 39 above).

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1. However, contrary to Ms Sargent’s submissions, I consider that the real point is not the level of detail provided to the Inspector but how she addressed the question of the relative roles on the information which had been put before her. I consider that the issue of the appropriate allocation of roles was raised before the Inspector. It was a central focus of the Claimant’s argument in both the PS and appeal submissions. It was also addressed in the NIA.

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1. The Inspector did not address the suitability or otherwise of the licensing system to respond to concerns as to the impact on residential amenity from noise from dispersal. This was closely connected to her observations about the enforceability of dispersal and arrival policies as planning conditions (DL 15). Given those concerns, the obvious further question was: would the licensing system (which had been described to her as more responsive) be better placed to regulate any issues relating to dispersal of customers? How that question was answered was a matter for the Inspector. But I am satisfied that it was an error of approach not to address it given the emphasis which the Claimant placed on the responsive nature of the licensing system in the material submitted.

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1. I conclude that the Claimant’s third ground of challenge is well founded.

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1. I mentioned that there is a procedural dispute. This concerns whether the third ground of challenge (which is contained in the amended statement of case for which the Court gave permission to amend on 28 November 2025) requires the permission of the Court. The pleading was amended by consent after the oral renewal hearing. The purpose of the amendment was to refine the Claimant’s case from that which had already been granted permission. The approved order does not record any reservation that permission is required, and in that context, I consider that the better analysis is that a separate grant of permission to proceed with ground 3 is not required.

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1. Assuming (against my primary analysis) that permission is necessary, there would be no prejudice to the First Defendant who has responded to the amended grounds in the detailed grounds of resistance and addressed the matter fully in argument. The Second Defendant has taken no part in these proceedings (as is common). Therefore, if required, I would readily grant permission given the conclusion that I have reached on the merits.

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1. For these reasons I have concluded that ground 3 succeeds.

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1. As pleaded, there are three other grounds of challenge which broadly relate to the relationship between planning and licensing. In oral submissions, these were not pressed. Therefore, I address them briefly.

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1. Ground 3A alleged that the Inspector had failed to take account of an obviously material consideration namely the conclusions of the licensing authority.

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1. There is nothing in this point in my judgment.

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1. As Ms Sargent correctly pointed out, the licensing authority has not made an in principle decision in respect of the licence extension to 2am. It granted a number of TENs which were of short duration. Given their time limited nature, they do not raise comparable issues to the question in the planning appeal which is the acceptability of the change of hours from a land use perspective.

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1. Ground 4 alleged a failure to supply adequate reasons for departing from the conclusions of the licensing authority.

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1. As pleaded, this ground attempts to extend by analogy the general principle in the North Wiltshire DC v Secretary of State for the Environment (1992) 65 P&CR 137.

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1. The analogy is misconceived in this case.

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1. The North Wiltshire principle is based on consistency and requires the identification of a reasoned basis for an Inspector taking a different course from a directly applicable decision.

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1. Here, there is no decision of the licensing authority which is sufficiently comparable.

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1. The grant of TENs is not the same as the grant of planning permission. They are different decisions, under different statutory schemes and the TEN is a limited duration decision. No plausible comparison can be made which creates a duty to give reasons.

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1. The fifth ground of challenge relied upon para 201 of the NPPF (December 2024 version) which states:

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“The focus of planning policies and decisions should be on whether proposed development is an acceptable use of land, rather than the control of processes or emissions (where these are subject to separate pollution control regimes). Planning decisions should assume that these regimes will operate effectively. Equally, where a planning decision has been made on a particular development, the planning issues should not be revisited through the permitting regimes operated by pollution control authorities.”

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1. As Ms Sargent submits the Licensing Act 2003 is not a “pollution control regime” for the purposes of para. 201 of the NPPF. “Pollution control”, she submits, is a term of art defined in legislation, most notably s. 5 of the Environment Act 1995. Para. 201 of the NPPF (like its predecessor, Planning Policy Statement 23: Planning and Pollution Control) was formulated against that backdrop. The policy has been interpreted in a manner that is consistent with the legislative definition: see e.g. Gladman Developments Ltd v SSCLG [2020] PTSR 128, the Court of Appeal (at para 45) recognising that the issuing of environmental permits under the EPA is a “pollution control” function within the meaning of (what is now) para. 201 NPPF.

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1. I agree with these submissions. I therefore consider that reliance on para 201 of the NPPF (which was not raised before the Inspector) does not assist the Claimant. Moreover, and in any event, it adds nothing to ground 3 which I have already addressed.

Part G: The Inspector’s Approach to a Temporary Permission (ground 6)

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1. Mr Kolvin’s final point is to challenge the Inspector’s approach to refusing to grant a temporary planning permission as reflected in para 17 of DL.

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1. He submits that the Inspector’s reasoning for failing to grant a temporary planning permission was not intelligible. He submits that it is unclear on what basis the Inspector refused to grant the permission.

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1. The reference in para 15 of DL to the six tests in the NPPF is a reference to the guidance that conditions must be “necessary, relevant to planning and the development to be permitted, enforceable, precise and reasonable” which, Mr Kolvin submits does not reveal why a 12 month consent was refused. Mr Kolvin draws attention to Planning Policy Guidance (Paragraph: 014 Reference ID: 21a-014-20140306 Revision date: 06 03 2014) which indicates that “Circumstances where a temporary permission may be appropriate include where a trial run is needed in order to assess the effect of the development)”.

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1. In my judgment, as Ms Sargent submits, paragraph 17 of DL refers back to earlier parts of the Inspector’s decision. The Inspector states “based on my findings” a temporary permission would not be appropriate. Those findings include para 13 of her decision where she set out deficiencies in the noise evidence (as she evaluated it).

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1. When the two sections of the decision are read together, the basis on which a temporary consent was refused is intelligible.

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1. The essence of the Inspector’s decision was as follows. Because she was not satisfied that residential amenity would be protected, she did not consider that it was appropriate to grant a temporary consent.

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1. The reference to the six criteria for planning conditions is somewhat unclear (as Ms Sargent accepted) in that the Inspector does not say which criteria are breached. Nevertheless, in my judgment the basis of the decision is clear. The Inspector concluded it would not be reasonable to grant a temporary consent for 12 months given her concerns about the noise evidence.

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1. I consider that there is no separate error in this part of the Inspector’s reasoning. The Inspector’s answer in respect of temporary consent followed from her findings on the noise evidence. She explicitly linked the two points by stating “based on my findings”. This aspect of the decision is adequately and intelligibly reasoned. The conclusions which I have reached elsewhere in the judgment do not give rise to a separate error as contended for by Mr Kolvin. The Inspector explained her approach to a temporary consent adequately and intelligibly.

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1. Ground 6 does not succeed.

Part H: Summary of Conclusions and Relief

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1. I have concluded that the claim succeeds on grounds 2 and 3.

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1. The other grounds (1, 3A, 4, 5 and 6) fail.

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1. I have to consider what relief is appropriate.

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1. As this is a statutory challenge, the relevant approach to relief is that set out in Simplex v Secretary of State (1989) 57 P&CR 306. I should not quash the decision if the outcome would necessarily have been the same. That threshold for resisting the quashing of the decision is not crossed. I consider that the failure to consider on a correct legal basis the ability of the licensing regime to address and respond to residential amenity might have made a difference to the outcome.

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1. As to ground 2, the approach for a reasons challenge is to consider whether the Claimant has suffered substantial prejudice. I have already concluded that it has in paragraph 82 above. The duty to give reasons exists in part to facilitate decision makers focusing on key issues in reaching their decision. I consider that if the Inspector had addressed the LIA, it might have affected the outcome.

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1. I am therefore satisfied that the appropriate relief is to quash the Inspector’s decision.

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1. Nothing in my judgment should be read as expressing any view on the planning merits of the proposal to extend hours. How the planning balance is struck will be a matter for the decision maker on the redetermination of the Claimant’s appeal.

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1. I thank Counsel for their focussed and helpful oral and written submissions.

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End of document

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