Johnson v Secretary of State for Communities and Local Government

Section 79 of the Town and Country Planning Act 1990 permits an inspector to grant permission for part of an application and refuse it for the remainder. The discretion must be exercised having regard to whether the partial permission, or its implementation, creates material planning considerations or consultation requirements which were not considered. Severability is a useful practical measure, but it is not conclusive. Procedural fairness generally requires the inspector to raise the possibility of a split decision only where the representations, site or other material give reason to anticipate that the split may cause difficulty. A permission is not unlawful merely because it cannot be implemented without a further planning application, where that further application preserves the opportunity for relevant planning considerations to be considered.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s decision on a planning appeal. The inspector refused permission for a new dwelling formed by extending a detached double garage, but allowed permission for the conversion, alteration and extension of an existing dwelling.

The claimant argued that the inspector lacked jurisdiction to make a split decision, should have invited representations about its consequences, and had acted unlawfully because the permitted works could not be implemented without further permission owing to a difference in levels. The central issues were the scope of the power to grant partial permission, procedural fairness, and whether implementation created an unconsidered material planning context.

1. The application was dismissed. The inspector had jurisdiction under section 79(1) of the Town and Country Planning Act 1990 to allow or dismiss an appeal, or reverse or vary part of the local planning authority’s decision. That power includes granting permission for part of an application while refusing the remainder.
2. The inspector acted fairly. Nothing in the representations, the site or the discussion at the hearing alerted him to the levels problem or to any dependence between the two parts of the scheme. The claimant, a planning professional, should have raised any reason why a split decision might cause difficulty.
3. The authorities identify relevant considerations rather than rigid and exclusive tests. The question is whether the partial grant, or the context in which it may be implemented, gives rise to material planning considerations, a changed balance of planning considerations, or a need for representations which have not been considered. Severability is a useful practical measure of contextual difference, but is not decisive. Scale or extent alone is not necessarily sufficient to refuse a partial permission where the parties have had a proper opportunity to consider the actual impacts.
4. Absent the levels issue, the two parts were wholly severable and the partial grant created no new consultation issue or material planning consideration. Although the permitted works could not be implemented without a further permission to raise the roof of the existing garage, that further decision would preserve the local planning authority’s opportunity to consider the relevant implications. The permission therefore did not create a sufficiently different planning context to make the exercise of the discretion unlawful.

The court observed that a different result might have followed if implementation had been possible through engineering works not requiring planning permission, because that could have created an uncontrolled and materially different planning context.