Shahid v Secretary of State for Communities & Local Government & Anor

In a challenge to a planning inspector’s decision, the court does not substitute its own planning judgment. It asks whether, after considering the relevant material, no reasonable inspector could have reached the conclusion. A period of use without complaints does not compel the removal or variation of planning conditions where the inspector reasonably identifies uncertainty about future operation and possible noise, disturbance and harm to living conditions. The assessment is one of planning judgment, on which inspectors may reasonably differ. A complaint that the inspector gave insufficient weight to historical experience will fail unless it crosses the high threshold of irrationality.

The appellant operated an Indian restaurant subject to planning conditions restricting takeaway use, opening hours and Sunday opening. After the local planning authority refused an application to vary those conditions, a planning inspector dismissed the appeal. The appellant applied under Section 288 to quash the inspector’s decision. Bean J dismissed that application on 29 July 2008, finding no error of law. The renewed application for permission to appeal concerned whether the inspector had been required to treat seven or eight years of apparently complaint-free takeaway use as conclusive evidence that future noise and disturbance concerns were unfounded.

Application for permission to appeal refused.

1. The challenge was not an opportunity to rehear the planning merits. The appellant had to establish an error of law. On the argument advanced, that required showing that, having taken the relevant material into account, no reasonable inspector could have reached the conclusion under challenge.
2. The inspector was plainly aware of the appellant’s principal case: takeaway use had continued for seven or eight years without complaints from local residents. It was not necessary for the inspector to do more merely because the appellant contended that a fuller response was required.
3. The absence of complaints during the historic period did not compel the conclusion that the planning concern was unfounded. The inspector was entitled to consider that there was no guarantee that the use would continue in the same manner over time. The assessment of likely noise, disturbance and the adequacy or enforceability of possible conditions was a matter of planning judgment.
4. Planning inspectors might reasonably take different views on that issue. The appellant therefore faced a high hurdle, and the circumstances did not arguably demonstrate that it had been surmounted. The inspector’s decision disclosed no error of law.
5. The application was refused. The underlying refusal to permit expanded takeaway and Sunday use consequently remained undisturbed.

• Court of Appeal (Civil Division): In [2008] EWCA Civ 1594, Lord Justice Dyson refused the renewed application for permission to appeal.
• Queen’s Bench Division, Administrative Court: Bean J dismissed the appellant’s application under Section 288 to quash the planning inspector’s decision on 29 July 2008.