Imperial Resources SA, R (on the application of) v First Secretary of State in the Office of the Deputy Prime Minister & Ors

For planning permission to be implemented, a material operation must both satisfy the statutory threshold and be comprised in the development authorised by the permission. Whether it does so is a question of fact and degree. The decision-maker must assess the works as a whole, considering both their similarities and differences from the approved plans, their usability in the permitted development, and the extent of alteration required. Differences from the plans are not automatically fatal, but a structure which is objectively a substantially complete and functionally different construction may not qualify. The assessment is objective. The developer’s subjective intention is not determinative, although the appearance and apparent function of the works may be relevant evidence.

The claimant sought to quash, under Town and Country Planning Act 1990, an inspector’s dismissal of its appeal concerning a lawful development certificate. The certificate related to whether works carried out in 1988 had commenced a 1983 planning permission for an additional storey containing four flats.

An earlier inspector’s decision had been quashed by Ouseley J. The second inspector accepted that the works were material operations, but concluded that the walls constructed around the roof lightwell were finished parapet walls rather than works comprised in the permitted development. The central issue was whether that conclusion involved an error of law, failure to consider relevant matters, or irrationality.

1. The claim was dismissed. The inspector had correctly identified the critical question under section 56: whether anything had been begun which could be regarded as commencement of the permitted development.
2. Whether an operation is comprised in the development is a question of fact and degree. The decision-maker must consider the works in the round. Relevant matters include the extent of compliance with the approved plans, the significance of any differences, the similarities, the usability of the works in the permitted scheme, and the degree of alteration required. It is impermissible simply to identify discrepancies or to disregard non-compliant parts of the works.
3. The inspector was entitled to conclude that the walls were materially different from the approved walls. They lacked the required window openings, appeared complete as parapet walls, and would require substantial demolition or reconstruction before they could be used in the permitted development. The possibility that some small remnant might remain did not require the inspector to ignore the works as actually constructed.
4. The assessment had to be objective. The claimant’s intention to preserve the planning permission was not determinative. The appearance and apparent function of the walls were relevant to the objective assessment and did not introduce an impermissible subjective test.
5. The inspector had considered the whole body of work, including scaffolding, brick and block laying, rendering, the dimensions and construction of the walls, their conformity with the alignment, and the extent of possible adaptation. His conclusion was a permissible evaluative judgment and was not irrational or perverse.

The claimant was ordered to pay the first defendant’s costs, summarily assessed at £5,101.75. No separate order for the second defendant’s costs was made.

The judgment records that an earlier inspector’s decision was successfully challenged under section 288 of the Town and Country Planning Act 1990 and quashed by Ouseley J on 29 May 2002. The present claim challenged the second inspector’s decision and was dismissed.