Thu, 08 Apr 2021
This analysis was first published on Lexis®PSL on 31 March 2021.
Planning analysis: In considering challenges under sections 288 and 289 of the Town and Country Planning Act 1990 (TCPA 1990) heard together, the High Court quashed an inspector’s decision to uphold an appeal against an enforcement notice and to grant planning permission. The TCPA 1990, s 289 challenge had been conceded in advance of the hearing, but the parties disagreed about whether the inspector’s decision should be quashed in its entirety as a consequence. Mrs Justice Lang allowed the TCPA 1990, s 288 challenge on the basis of failures in the inspector’s consideration of development plan policies, but said that she would have quashed the decision anyway.
Hackney London Borough Council v Secretary of State for Housing, Communities and Local Government and others  EWHC 720 (Admin)
What are the practical implications of this case?
First, the case provides an example of the implications of the submission of challenges under TCPA 1990, ss 288 and 289 concerning the same inspector’s decision. The judgment appears to confirm that, in most circumstances, if the appeal under TCPA 1990, s 289 were to succeed, this would be sufficient to vitiate the decision and prompt a full redetermination by a new inspector.
Second, Lang J’s consideration of whether the inspector failed to consider whether the relevant development complied with the development plan, read as a whole is of particular interest for two reasons:
- Lang J indicated that this consideration cannot be implied. This will be of relevance to local planning authorities deciding planning applications as much as it will be to inspectors deciding appeals
- in the particular circumstances of the case, the judge said that she would not have quashed the permission for this reason alone. Thus, in the context of a TCPA 1990, s 288 challenge, consideration will need to be given to whether a decision-maker would have made the same decision (Simplex GE (Holdings) Ltd v Secretary of State for the Environment and the City and District of St Albans District Council  PTSR 1041), or if it is a judicial review, whether it is ‘highly likely’ that the same decision would have been made absent the error (section 31(2A) of the Senior Courts Act 1981)
What was the background?
The second and third defendants, both property developers (‘the developers’) had converted a building (‘the building’) from a storage facility (Class B8) into 25 self-contained apartments (Class C3) (‘the change of use’). The claimant local planning authority (‘the council’) refused an application for retrospective planning permission and served an enforcement notice. The developers appealed to the first defendant, the Secretary of State, under TCPA 1990, s 174(2). The Secretary of State’s inspector allowed the appeal. In considering ground (a), she decided that planning permission for the development of the first floor ought to be granted and made the grant under TCPA 1990, s 177(5). As to ground (c), she determined that there was no breach of planning control in relation to the ground floor of the building.
The council challenged the inspector’s decision in the High Court. As the inspector had granted planning permission, separate appeals were filed under TCPA 1990, ss 288 and 289 in accordance with the guidance in R (on the application of Wandsworth London Borough Council) v Secretary of State for Transport, Local Government and the Regions  EWHC 622 (Admin). Mr Justice Holgate determined that the two claims should be heard together.
The council argued in two grounds that the inspector had erred in allowing the appeal on grounds (c) and (a) respectively. Prior to the hearing, the parties had agreed a consent order to the effect that the appeal under TCPA 190, s 289 was allowed. This was on the basis that the parties agreed that the inspector had found that the change in the use of the ground floor was lawful in reliance on permitted development rights, notwithstanding that she had expressly found unlawful building operations had taken place contrary to article 3(5) of the Town and Country Planning (General Permitted Development) (England) Order 2015, SI 2015/596 (Ground 1(i)).
The parties further agreed that it was unnecessary for the High Court to determine the remaining disputed issues in the TCPA 190, s 289 appeal. However, there was a dispute as to the consequences of this. The council and the Secretary of State agreed that the inspector’s decision should be quashed in its entirety and remitted for reconsideration, but the developers argued that the inspector’s decision on ground (a) should be upheld and that the grant of planning permission for the development on the first floor should stand.
What did the court decide?
In considering Ground 2, Lang J decided that the inspector had made a significant error in her interpretation and application of Policy 3.5 of the London Plan, which was concerned with minimum space standards (Ground 2(iii)). The judge further decided that the inspector had overlooked the issue of outlook, despite it being a ‘main issue’ and a mandatory consideration under Policy DM2 of the Local Plan (Ground 2(ii)). In relation to these errors, Lang J concluded that an inspector who had properly considered the relevant matters would not necessarily have reached the same conclusion (Simplex).
Lang J then considered whether the inspector had failed to reach a judgment as to whether the development for which she had granted permission accorded with the development plan, read as a whole, as required by section 38(6) of the Planning and Compulsory Purchase Act 2004. The judge decided that although the inspector had identified and applied the relevant policies, she had inexplicably failed to carry out this step and that it could not be implied. However, Lang J said that it was clear that the inspector would have found that the development did accord with the development plan if she had remembered to address the issue and that, if this had been the only error, she would have been minded not to quash the decision, applying the principle in Simplex.
As a consequence of the judge’s conclusions in relation to Ground 2, she allowed the appeal under TCPA 1990, s 288 and said that the appeal under ground (a) should be considered by a different inspector.
Finally, Lang J said that as a result of her conclusions on Ground 2, the question as to whether the whole decision should be quashed as a result of the parties consenting to judgment on the TCPA 190, s 289 appeal was now academic. She said that, for the reasons argued by the council and the Secretary of State, the outcome of the TCPA 1990, s 289 appeal vitiated the whole decision. These reasons included that the inspector’s decision was a determination of a single appeal against a single enforcement notice in relation to a single building and that the decision was to allow the appeal as a whole under TCPA 1990, s 176(3)(b).
- Court: Planning Court, Queen’s Bench Division, High Court of Justice
- Judge: Lang J
- Date of judgment: 25 March 2021