Kansal v Secretary of State for Communities & Local Government

A statutory appeal under section 288 of the Town and Country Planning Act 1990 is a challenge to the legality of the decision, not a rehearing on planning merits. The court may intervene where the decision is irrational, fails to take account of material matters, disregards relevant considerations, gives inadequate reasons, or falls outside the statutory powers. Planning decisions do not establish a doctrine of precedent, although consistency remains desirable. Different inspectors may reach different conclusions within a lawful discretion. New evidence which was not before the decision-maker cannot ordinarily establish that the original decision was unlawful. The Universal Declaration of Human Rights is not part of United Kingdom domestic law merely because the United Kingdom signed it.

The claimant challenged a planning inspector’s dismissal of his appeal against Kirklees Metropolitan Council’s refusal of permission for a first-storey side extension to his home. The challenge was brought under section 288 of the Town and Country Planning Act 1990. The issues included whether the inspector had acted irrationally, failed to consider relevant planning policies or facts, acted inconsistently with earlier planning decisions, or failed to consider the claimant’s mother’s medical conditions. The claimant also relied on provisions of the Universal Declaration of Human Rights and objected to the late service of the defendant’s skeleton argument.

1. The appeal was dismissed. A section 288 appeal is not a rehearing of the planning merits. It concerns whether the order was within the statutory powers or whether relevant requirements were not complied with.

2. The inspector had identified the effect of the proposed extension on neighbouring living conditions and had considered the relevant Kirklees planning policies. His assessment of the extension as overbearing and oppressive was a planning judgment within his lawful discretion. The disagreement with that assessment did not establish irrationality.

3. Planning decisions are not governed by a doctrine of precedent. Consistency in administrative decision-making is desirable, but different inspectors may lawfully reach different conclusions within the ambit of their discretion. The possibility that another inspector might have decided differently did not justify review.

4. The late skeleton argument did not cause relevant prejudice. A late document may justify an adjournment where it raises matters which the opposing party cannot fairly address, but it cannot itself establish a successful statutory appeal.

5. The claimant’s mother’s medical conditions had not been advanced to the inspector. The inspector was required to decide the case presented to him and was not required to search for unraised evidence. A decision could not be challenged for failing to consider matters which were not before the decision-maker.

6. The Universal Declaration of Human Rights was not incorporated into domestic law. The claimant therefore could not rely on it to establish a breach of domestic law. The rights incorporated through the Human Rights Act 1998 were not engaged on the facts.

7. The defendant was entitled to its costs. The claimant’s status as a pensioner and inability to afford the costs did not displace the normal rule that the successful party receives its costs. Costs were summarily assessed at £5,173.

• Planning inspector: Mr Peter Willows dismissed the claimant’s planning appeal on 18 February 2011.
• High Court (Administrative Court): The statutory appeal under section 288 of the Town and Country Planning Act 1990 was dismissed.