Westminster City Council, R (On the Application Of) v First Secretary of State

When assessing the planning merits of development, an inspector may take account of a lawful fallback use where the evidence shows that the use would probably continue without the disputed development. The relevant comparison is between the likely use with and without the development, having regard to the evidence and the site circumstances. Detailed quantification is unnecessary where the evidence demonstrates that the development would make no material difference. Reasons must address the principal points in issue, but their required detail depends on the nature and extent of the dispute. A decision based on the particular characteristics and established use of the site does not necessarily create a general precedent.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s decision allowing an appeal against an enforcement notice concerning roof-level structures at a dwelling in St John’s Wood. The inspector quashed the notice and granted planning permission on the deemed application under section 177(5).

The enforcement notice alleged operational development and contended that fencing and decking facilitated use of the roof as a terrace, causing loss of privacy and disturbance. The inspector accepted that use of the roof as sitting-out space was incidental to the dwelling and therefore not development under section 55(2)(d). He assessed the disputed structures solely by reference to their visual impact on the conservation area and found that impact acceptable. The Council challenged the inspector’s treatment of the fallback position, his reasons, the comparison made, and procedural fairness.

1. The claim was dismissed. The inspector’s decision to allow the appeal, quash the enforcement notice and grant planning permission stood.
2. The inspector was entitled to consider the established use of this particular roof as a lawful fallback position. The evidence showed use as sitting-out space and for sunbathing since at least 1984, including periods when the decking and screening were in good condition, were rotten, or had been removed. The inspector did not rely merely on the theoretical possibility of a lawful incidental residential use.
3. The inspector had addressed the necessary comparison. His statement that the roof could be used as sitting-out space whether or not the operational development was present showed that he had considered whether the structures would make a material difference to the extent of use. He was entitled to rely on the affidavits and his site inspection, including the roof’s pronounced parapet walls.
4. A decision-maker need not provide a detailed analysis of every period or quantify precisely the extent of past and future use. Adequate reasons must deal with the principal points in issue, but the level of detail depends on the nature and extent of the dispute. Here the Council had made only a bare assertion that the structures would facilitate use, while the evidence of longstanding use without the structures was not disputed.
5. The inspector did not adopt the wrong fallback position. The seating was not fixed and might not constitute operational development; planters could potentially be placed without constituting operational development; and the status of decking below parapet level remained open. The comparison therefore could not simply be between the present structures and a roof entirely stripped of all items.
6. The Council had not been denied a fair opportunity to address the issue. The evidence of longstanding roof use was plainly raised in the appeal material, and the Council had failed to engage with it beyond its bare assertion. The decision was fact-specific and did not establish a general rule that roof terraces would ordinarily escape planning control.