Singhal UK Limited v Secretary of State for Communities and Local Government & Anor

This is an application under section 289(6) of the Town and Country Planning Act 1990 for leave to bring a point of law to the High Court against an Inspector's decision dismissing an appeal and upholding an enforcement notice. The Inspector had considered grounds (a), (d), (f) and (g) under section 174(1) and related statutory provisions, applied the adopted development plan and national policy, and concluded that the change of use to three self-contained units had not been shown to have subsisted for four years (section 171B(2)) and that the accommodation conflicted with development plan space standards and the London Plan.

The court held that most of the proposed grounds advanced by the applicant were either impermissible attempts to re-run planning merits or were not arguable points of law. However, the Deputy Judge granted leave in part because there was an arguable legal error in the Inspector's treatment of the applicant's fallback and permitted development position when considering whether the demolition requirements of the enforcement notice were excessive under ground (f). The Inspector had not adequately dealt with the possible effect of reinstatement under the Town and Country Planning (General Permitted Development) (England) Order 2015 (Schedule 2, Part 1) and earlier appeal authority on the probability of reinstatement, and had misunderstood or not fully considered the incidental use arguments for the outbuilding.

Background and parties: The applicant, Singhal UK Limited (represented by its director Mr Bhupendra Singhal), owned premises at 72 Bath Road, Hounslow. The local planning authority issued an enforcement notice dated 9 September 2014 alleging the construction of a self-contained residential outbuilding, the erection of a link extension and single-storey rear extension, and use of the dwelling as three self-contained residential units. The applicant appealed to the Secretary of State; the appeal was determined by Inspector Brian Cook whose decision letter of 15 December 2016 dismissed the appeal, upheld the notice and refused planning permission.

Nature of the application: The applicant applied under section 289(6) of the Town and Country Planning Act 1990 for leave to bring proceedings in the High Court on a point of law challenging the Inspector's decision.

Procedural history: Inquiry on 15-16 November 2016; Inspector's decision 15 December 2016; claim form filed 16 January 2017; hearing before the Deputy Judge on 16 March 2017; reserved judgment 3 May 2017.

Issues framed by the court:

• Whether the Inspector applied the correct development plan (i.e. the plan in force at the time of determination) and national policy;
• Whether the Inspector failed to have regard to material considerations or had regard to immaterial considerations, including affordable housing, the needs of tenants, and financial impact on the applicant;
• Whether the Inspector erred in his treatment of fallback positions and permitted development rights (in particular Schedule 2, Part 1 of the GPDO) when assessing whether the demolition requirements of the notice exceeded what was necessary (ground (f)).

Court’s reasoning and outcome: The court applied established principles for judicial review of planning decisions (as summarised from the authorities in the decision). It rejected the applicant's challenges which sought to re-open planning merits, held that the Inspector had lawfully applied the adopted development plan and national policy (section 38(6) Planning and Compulsory Purchase Act 2004; section 177(2) 1990 Act), and had considered the tenants' circumstances and financial impacts. However, the court found an arguable error in the Inspector's treatment of the permitted development fallback: the Inspector had not properly addressed submissions that, if the main building were reverted to single dwelling use, permitted development rights could allow the outbuilding and rear extension to be rebuilt and had not sufficiently considered an earlier appeal decision and the operation of the GPDO (including prior approval provisions and the question whether prior approval would be required where neighbours do not object). The court therefore granted leave in part on that legal point under ground (f) but refused leave on the other grounds.

Wider context: The court observed the limited scope of a section 289(1) appeal (point of law only) and reiterated that planning judgments on weight and merits rest with the decision-maker; the leave granted was narrowly focused on the legality of the Inspector’s treatment of fallback permitted development rights.

The application for leave to bring proceedings was granted in part. The court refused leave on most grounds as impermissible re‑runs of planning merits or as not raising arguable points of law. Leave was granted on a single arguable point: whether the Inspector erred in law in his consideration of ground (f) by failing properly to assess the effect and likelihood of permitted development fallback rights (Schedule 2, Part 1 of the GPDO) in deciding whether demolition of the outbuilding and rear extension was necessary. The rationale was that the Inspector had not adequately addressed the arguments and earlier appeal authority on the probability of reinstatement and incidental use, making this an arguable legal error meriting leave.

The enforcement notice was issued by the London Borough of Hounslow on 9 September 2014. The applicant appealed to the Secretary of State; the appeal was determined by Inspector Brian Cook who issued a decision letter dated 15 December 2016 dismissing the appeal, upholding the notice and refusing planning permission. The present application for leave to bring proceedings under section 289(6) was filed 16 January 2017 and heard in the High Court on 16 March 2017, with judgment reserved and handed down 3 May 2017.