Shahid v Secretary of State for Communities & Local Government

On a challenge under section 288 of the Town and Country Planning Act 1990, the court reviews legality, not the planning merits. A previous appeal decision concerning the same site is a material consideration, but the later inspector must exercise independent judgment and explain any departure. The weight given to material considerations is for the decision-maker. A decision letter must be read fairly and as a whole, without excessive legalism. It need address the principal important controversial issues, but a reasons challenge succeeds only where the reasoning is inadequate and causes substantial prejudice. Evidence that an existing use has caused no complaints may be material, but the inspector may weigh it against the risk that future operation will cause harm.

The claimant operated an Indian restaurant in Birmingham. He sought variation of planning conditions so that the premises could open on Sundays and provide takeaway and delivery services. The local planning authority refused permission on amenity grounds, including late-night noise and disturbance. On appeal, the Secretary of State’s inspector dismissed the proposal, finding that the additional use could harm residents of neighbouring flats.

The claimant applied to the Administrative Court under section 288 of the Town and Country Planning Act 1990. He argued that the inspector had failed to give proper weight to the absence of historical noise complaints, had relied impermissibly on speculation about future harm, and had adopted the previous inspector’s reasoning without independent judgment.

1. The claim was dismissed. The application was a challenge to the legality of the inspector’s decision, not an opportunity to rehear the planning merits. Matters of planning judgment remained within the inspector’s province.
2. Considerations relating to the use and development of land may be material, depending on the circumstances. The weight given to a material consideration is for the decision-maker. The absence of local complaints during the existing operation was material, but the inspector was entitled to weigh it against the possibility that future operation might change and that effective conditions could not be devised.
3. A previous appeal decision concerning the same site is an immaterial consideration? No: it is a material consideration, particularly because consistency in the appellate process is important. The inspector must nevertheless exercise his own judgment. He may disagree with the earlier decision, provided he has regard to consistency and gives reasons for departing from it.
4. The inspector had not treated himself as bound by the earlier decision. His conclusion that takeaway use was likely to generate additional traffic, delivery vehicles, noise and disturbance reflected his own planning judgment, although he reached a similar conclusion to the previous inspector.
5. The decision letter had to be read in a straightforward, broad and practical manner. It sufficiently addressed the principal issues, including the historical absence of complaints, Sunday opening, trade diversion and the premises licence. The licence was personal to the operator, whereas planning permission related to the premises and required consideration of potential future use.
6. The inspector was entitled to conclude that the proposal would generate additional activity rather than merely divert trade within the shopping centre. The court found no error of law, failure to consider a material matter, or irrationality. Costs were awarded to the defendant, with 15 hours disallowed from the claimed work on documents.

The Secretary of State’s inspector dismissed the claimant’s planning appeal on 21 September 2006. The claimant then brought a statutory challenge in the Administrative Court. The court dismissed the claim and refused leave to appeal.