Fasuyi, R (on the application of) v First Secretary of State

An appeal under Town and Country Planning Act 1990, section 288, should be determined on the planning application and grounds actually presented to the decision-maker. An applicant cannot use an application for planning permission to require a separate determination that permission was unnecessary or that the development had a different established use. The comprehensive statutory scheme in Part VII of the Act prevents that approach. Where the inspector was entitled to proceed on the application as submitted and applied the relevant development-plan policies, the court will not substitute its own factual assessment of the premises’ use or independence.

The claimant appealed under section 288 of the Town and Country Planning Act 1990 against an inspector’s dismissal of an appeal from the London Borough of Greenwich’s refusal of planning permission. The application sought a change of use of first-floor premises from residential to office use.

The claimant argued that the premises had never been authorised for residential use and that the application should instead have been treated as a change from retail to office use. He also argued that policy S19, rather than policies H7 and S20, applied. The central issues were whether the inspector was entitled to determine the appeal on the basis on which the application had been made and whether the relevant planning policies had been correctly applied.

1. Appeal dismissed. The inspector was entitled to determine the appeal on the basis presented: an application to change the first-floor use from residential to office use.
2. Following and adopting the analysis in Saxby v Secretary of State for the Environment [1998] JPL 1132, an application for planning permission does not expressly or impliedly include a request for a determination that planning permission is unnecessary. The comprehensive code in Part VII of the Town and Country Planning Act 1990 precludes that approach.
3. The earlier authorities, Wells v Minister of Housing and Local Government [1967] 1 WLR 1000 and Western Fish Products Ltd v Penwith District Council [1981] 2 All ER 204, concerned former statutory provisions and did not govern the position under the 1990 Act.
4. On the assumed basis that the premises were residential, policies H7 and S20 justified refusal. The inspector was entitled to treat the degree of independence between the first floor and the shop below as a factual matter. The claimant had not established that policy S19 applied.
5. The court expressed no view on the premises’ true lawful use. Costs were ordered against the claimant, summarily assessed at £1,766.75.

The judgment states that the matter was an appeal under section 288 of the Town and Country Planning Act 1990 against an inspector’s decision dismissing an appeal from the London Borough of Greenwich’s refusal of planning permission. No separate lower-court citation is given.