Shaikh, R (on the application of) v Secretary of State for Communities & Local Government & Anor

Judicial review of a planning appeal is confined to legal error or irrationality in the planning judgment. It is not an opportunity to challenge the planning authority’s enforcement policy or alleged inconsistency with its treatment of other properties. A planning inspector may assess the effect of a boundary feature on the character and appearance of an open-plan estate and on the safety and convenience of adjoining driveways. A general development policy may apply to such works even if it does not expressly mention boundaries. Where the inspector has visited the site, assessed the relevant planning considerations and given intelligible reasons, the court will not substitute its own planning judgment.

The claimant erected a wrought iron fence between adjoining driveways on an open-plan housing estate. The local planning authority issued a breach of condition notice, and the claimant’s subsequent application for planning permission was refused. He appealed under section 78 of the Town and Country Planning Act 1990, but the Planning Inspector dismissed the appeal on 21 December 2007.

The claimant sought judicial review of the inspector’s decision. He relied principally on alleged inconsistent enforcement by the local planning authority and argued that policy GS5 of the Northamptonshire County Structure Plan was irrelevant because it did not expressly refer to boundaries. The central issue was whether the inspector had erred in law or reached an irrational planning conclusion.

1. Claim dismissed. The court’s task was limited to deciding whether the Planning Inspector had erred in law or reached an irrational decision in planning terms. The court could not determine whether the local planning authority had acted inconsistently in enforcing the planning condition.
2. The Inspector was entitled to assess the fence’s effect on the character and appearance of the area and on the safety of users of both driveways. Policy GS5 applied to all development, including the boundary feature under consideration, despite making no specific reference to boundaries.
3. The Inspector had visited the site and considered the adjoining and surrounding properties and the layout of the driveways. His conclusion that the fence was out of character with the open-plan estate, and worsened an already poor driveway design by creating inconvenience, was a planning judgment that was plainly unobjectionable.
4. The claimant’s security and child-safety concerns, and his complaint about enforcement against other residents, might have been relevant to separate proceedings concerning enforcement. They did not establish any legal error in the inspector’s decision.
5. The first defendant’s costs were summarily assessed at £4,000, the claim for £7,496 being significantly inflated beyond what was reasonable.

The claimant appealed to a Planning Inspector under section 78 of the Town and Country Planning Act 1990 against refusal of planning permission. The inspector dismissed that appeal on 21 December 2007. The Administrative Court dismissed the subsequent judicial review claim.