Patel, R (on the application of) v Secretary of State for Communities and Local Government & Ors

The claimant sought judicial review under section 288 of the Town and Country Planning Act 1990 of an Inspector's decision allowing an appeal for prior approval under Class M of the Town and Country Planning (General Permitted Development) (England) Order 2015 (change of use from retail to residential). The claimant advanced five grounds: (1) the relevant area for Class M's 150 sq.m. limit had been exceeded; (2) breaches of natural justice in three respects concerning evidence and site visit; (3) failure to take development plan policy into account; (4) failure to treat Asset of Community Value status as a material consideration; and (5) failure to comply with the public sector equality duty in section 149 of the Equality Act 2010.

The court applied the legal tests articulated in E and R v SSHD for error of fact and considered authorities on Inspectors' duties in written representations (Dyason, Tapecrown). It held that the claimant's late surveyor evidence was inadmissible and that measurement discrepancies did not establish a material, uncontentious factual error. The court rejected the natural justice complaints because the Inspector had followed the written representations procedure, visited the site and considered the Esso petrol station. It held that there is no statutory duty to apply section 38(6) of the Planning and Compulsory Purchase Act 2004 in prior approval decisions and that the National Planning Policy Framework did not import that duty into Class M prior approvals. The Inspector was wrong to say ACV status was irrelevant by reason only of its absence from M.1(g), but any error was immaterial because the listing added nothing beyond points already before the Inspector. Finally, the court held the inspector had had due regard to equality considerations under s149 and dismissed the application.

Background and parties. The claimant, Mr Patel, occupied a corner shop with associated residential accommodation under a lease. The owner sought prior approval under Class M of the 2015 Order to change the retail element to residential. Wandsworth Borough Council refused prior approval; the applicant appealed to the Secretary of State and an Inspector allowed the appeal on written representations. The claimant obtained permission from Lang J to bring judicial review proceedings challenging the Inspector's decision.

Nature of the application and relief sought. The claimant applied for judicial review to quash the Inspector's decision on five principal grounds: (1) unlawfulness because the 150 sq.m. floor space limit in Class M was exceeded if the detached garage and other parts were included; (2) breaches of natural justice relating to withholding of replies and non-notification of the site visit and alleged administrative failure to pass the claimant's representations to the Inspector; (3) failure to apply or have regard to development plan policy; (4) failure to treat the building's status as an Asset of Community Value as a relevant consideration; and (5) failure to comply with the public sector equality duty under section 149 of the Equality Act 2010.

Issues framed by the court.

• Whether measurement evidence established an error of fact such that the Inspector’s decision was unlawful (E and R v SSHD criteria).
• Whether procedural unfairness arose from the Inspectorate’s handling of representations and site inspection under the written representations procedure.
• Whether the development plan or the NPPF imposed a statutory duty on the Inspector in a prior approval decision.
• Whether Asset of Community Value status was a material consideration which the Inspector wrongly ignored to claimant’s prejudice.
• Whether the Inspector complied with the public sector equality duty (s149 Equality Act 2010) in substance.

Court’s reasoning and conclusions. On the measurement point the court found the surveyor evidence adduced in the judicial review to be inconsistent and not objectively verifiable to the standard required by E and R; the claimant had been in a position to raise the point at appeal and failed to do so, and the Inspector could not be expected to pursue a measurement argument not advanced by any party. On natural justice the written representations procedure and Planning Inspectorate guidance did not require forwarding all replies to third parties and an unaccompanied site visit required no prior notice; the Inspector had in fact inspected the Esso petrol station and the local parades and the alleged administrative omission did not cause substantive unfairness. On the development plan the court held there was no statutory hook to import the decision-making duty in section 38(6) into prior approval determinations under the Order and rejected the contention that the NPPF displaced statutory limits. Concerning ACV status the Inspector was wrong to suggest its absence from M.1(g) made it irrelevant, but the listing added nothing material beyond the representations already made and therefore any error was immaterial. On equality the court applied Bracking and related authorities and concluded that the Inspector had in substance had due regard to the needs of the elderly, children and disabled when assessing adequacy of alternative provision, so s149 was satisfied. The application was dismissed.

The application for judicial review is dismissed. The court found (a) the claimant’s late measurement evidence did not establish an objectively verifiable error of fact or law sufficient to invalidate the prior approval, (b) the written representations procedure and unaccompanied site visit involved no breach of natural justice or substantive unfairness, (c) there is no statutory duty to apply section 38(6) to prior approval determinations and the NPPF does not import such a duty into Class M, (d) although the Inspector was wrong to treat ACV status as necessarily irrelevant, that error was immaterial because the listing added nothing beyond the issues already considered, and (e) the Inspector had in substance had due regard to equality duties under section 149 of the Equality Act 2010.

The Inspector allowed the appeal against the Council's refusal of prior approval. The claimant obtained permission from Lang J to apply for judicial review of the Inspector’s decision. This High Court hearing determined the judicial review challenge and dismissed the claim. (Neutral citation for this judgment: [2016] EWHC 3354 (Admin).)