Fuller & Anor v First Secretary of State & Anor

On an appeal under Town and Country Planning Act 1990, section 288, the court reviews the legality of the inspector’s decision rather than its planning merits. An appeal succeeds only where an error of law is established, including a failure to apply the statute, a misunderstanding of planning law, or a decision so irrational that no reasonable decision-maker could reach it. A disagreement about the weight given to overlooking, fire-safety concerns, planning policy or local circumstances is ordinarily a matter for the inspector. The erection of development in breach of planning conditions does not automatically require enforcement. The local planning authority must separately consider whether enforcement is expedient, including relevant material not previously before the inspector.

The appellants challenged an inspector’s refusal of an application under section 73A of the Town and Country Planning Act 1990. The application sought to retain a dwelling despite breaches of conditions requiring obscure, non-opening windows and a rendered or timber-clad finish rather than brick.

The inspector rejected the application after considering privacy, fire-escape concerns, the character of the plotland area and relevant local planning policy. The appellants relied on alleged irrationality, inconsistent treatment of other buildings, the conduct of the local planning authority and their architect’s failure. The central issue was whether the inspector had made an error of law permitting intervention under section 288.

1. Appeal dismissed. The appellants had not identified any error of law in the inspector’s decision.
2. The court’s jurisdiction under section 288 of the Town and Country Planning Act 1990 was supervisory. It could not substitute its own view on whether overlooking caused unacceptable loss of privacy or whether brick should be permitted in the plotland area. Those were matters for the inspector’s planning judgment.
3. The inspector had been entitled to regard the window conditions as reasonable and necessary to protect neighbouring living conditions. The appellants’ fire-safety concerns were unsupported by positive evidence before the inspector. The later fire-brigade letter could not establish an error in the decision.
4. The inspector was also entitled to conclude that the proposed brick finish conflicted with local planning policy. The existence of other brick buildings or permissions did not require a different conclusion. The weight to be given to those circumstances was for the inspector.
5. Irrationality sets a high threshold. A decision may be unlawful if it is one which no reasonable person could reach, but a decision that is merely surprising, controversial or considered unreasonable on its merits is insufficient.
6. The refusal of permission did not itself determine enforcement. The local planning authority had to decide separately whether enforcement of the conditions was expedient, in whole or in part. Relevant material not before the inspector, including the authority’s alleged failure to intervene earlier, could be placed before it. If enforcement were pursued, the appellants would have a right of appeal.
7. Costs were awarded against the appellants in the reduced sum of £2,500.

The appeal was brought directly to the High Court under section 288 of the Town and Country Planning Act 1990 from an inspector’s decision refusing the section 73A application. The inspector’s citation is not stated in the judgment.