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

On an application for permission to challenge an enforcement appeal decision, the court considers only arguable points of law, not the planning merits or the weight given to material considerations. An inspector must apply the development plan in force when determining the appeal, address material considerations, and assess any realistically available fallback position. Where permitted development rights may enable structures to be rebuilt after compliance with an enforcement notice, their potential effect can be material to whether demolition is necessary to remedy injury to amenity. An inspector who fails properly to understand and evaluate those rights may arguably have erred in law.

The applicant sought permission under section 289(6) of the Town and Country Planning Act 1990 to challenge an inspector’s dismissal of its enforcement appeal. The notice required cessation of use of a dwelling as three self-contained flats, removal of kitchens, and demolition of extensions and an outbuilding.

The proposed challenges concerned the development plan applied, material considerations, fallback positions, and whether the steps required by the notice exceeded what was necessary under ground (f). The court rejected the proposed grounds concerning the development plan, material considerations and most factual matters, but considered arguable the inspector’s treatment of permitted development rights and granted leave on that ground.

1. Permission and scope of review. An appeal under section 289(1) of the Town and Country Planning Act 1990 lies only on a point of law. Permission may be refused where there is no arguable case. The court does not review planning merits, factual judgments, or the weight attached to material considerations.
2. Decision letters must be read flexibly and give intelligible and adequate reasons for the principal important controversial issues. Planning policy is interpreted objectively by the court, but its application and the weight of material considerations are for the decision-maker. Failure to have regard to a material consideration, or regard to an immaterial one, may justify quashing unless the outcome would necessarily have been the same.
3. The development plan for the purposes of sections 177(2) of the 1990 Act and section 38(6) of the Planning and Compulsory Purchase Act 2004 is the legally adopted plan in force when the determination is made. The inspector therefore correctly applied the adopted space standards current at the inquiry and decision.
4. The inspector had considered the tenants’ circumstances, financial impact, alleged affordable housing considerations, planning history and other matters relied on by the applicant. Those arguments either disclosed no arguable legal error or sought impermissibly to reopen planning judgments.
5. The inspector was wrong to think that permitted development rights had not been advanced under ground (f). The applicant had relied on rights under the Town and Country Planning (General Permitted Development) (England) Order 2015 to rebuild the rear extension and outbuilding after restoration of the dwelling. The inspector had not properly addressed the argument that prior approval for the extension might not be required where adjoining owners did not object, or the proposed incidental home-office or gym use of the outbuilding.
6. Those rights could be material to whether demolition was necessary to remedy injury to amenity. Once the unauthorised residential uses ceased, the relevant harm to occupiers would cease, and the potential to rebuild under permitted development rights required proper evaluation. The court therefore granted leave to bring proceedings on this ground and invited the respondent to draft the order.

This was a first-instance application for permission under section 289(6) of the Town and Country Planning Act 1990. The inspector’s decision dated 15 December 2016 had dismissed the enforcement appeal, upheld the notice and refused planning permission. Permission was granted only on the arguable error concerning ground (f) and the potential effect of permitted development rights.