Freedman v Zafir

On an appeal under section 288 of the Town and Country Planning Act 1990, a planning inspector must take relevant development-plan policies into account and must not rely on materially inaccurate or irrelevant facts. The court may quash a planning decision where an apparent omission or factual error goes to the substance of the decision, even though the decision ultimately involves planning judgment. A court should not allow the decision to stand merely because the inspector might have reached the same conclusion without the error or omission. Draft planning documents may properly be disregarded where they are at an early stage and the inspector gives a sufficient reason for doing so.

The claimants challenged, under section 288 of the Town and Country Planning Act 1990, decisions of a planning inspector dismissing their appeals against Hackney’s refusal of permission for materially similar first-floor rear extensions at 41 and 47 Chardmore Road.

The claimants argued that the inspector had failed to consider relevant draft planning documents and the applicable policy concerning rear extensions. In relation to No 47, they also argued that the inspector had relied on an irrelevant and factually inaccurate description of the existing building. The central issues were whether those matters rendered the decisions unlawful and whether the court should nevertheless exercise its discretion to leave them standing.

1. Draft documents. The inspector did not err by declining to have regard to draft LDF and SPG documents. He had referred to them and gave a sufficient reason: they appeared to be at an early stage of preparation.
2. Failure to consider the applicable policy. The inspector correctly recognised that policy ENV3 belonged to an earlier UDP. However, policy EQ6 in the 1995 UDP was in identical terms, including its provision favouring extensions confined to the rear where possible. The wording of the decision letter showed that the inspector had failed to appreciate that the current policy contained the relevant factor and had therefore failed to take it into account. This was a substantive misdirection, not merely a technical defect.
3. Material factual error. In the decision concerning No 47, the inspector stated that the proposed extension would have a flat roof despite the pitched roof of the main building. The existing building had a substantial dormer which had made the main roof flat. The inaccurate description concerned the visual-harm assessment at the heart of the decision and amounted to reliance on an irrelevant consideration.
4. Discretion to uphold the decisions. Although matters of planning judgment are for the inspector, the court could not allow either decision to stand where a relevant factor had been omitted or an irrelevant, factually inaccurate matter had materially influenced the reasoning.
5. The two appeal decisions were quashed and remitted for rehearing by a different inspector. The Secretary of State was ordered to pay the applicants £400 in costs.

Not stated in the judgment.