The London Borough of Hackney v Secretary of State for Housing, Communities And Local Government & Anor

A planning authority must determine the application actually made, including any operational development on which the proposed use depends. The fact that part of the scheme may have been built in breach of development control does not, by itself, justify refusing permission. The authority must assess the whole application under section 38(6) of the Town and Country Planning Act 1990, by reference to the development plan and material considerations. A planning inspector must give intelligible and adequate reasons on the principal controversial issues, but the court applies a stringent test before declining relief for an error of law: it must be satisfied that the decision would necessarily have been the same. The court must not substitute its own planning judgment.

The claimant local planning authority sought a statutory review under section 288 of the Town and Country Planning Act 1990 of an inspector’s decision allowing an appeal under section 78 and granting permission for the conversion of a terraced house into three flats. The authority also challenged an award of appeal costs.

The dispute centred on a second-floor rear extension. The authority considered that the extension had not been built in accordance with a certificate of lawfulness and was unauthorised. The inspector treated the extension as outside the issue she had to determine, but granted permission by reference to plans showing it as part of the scheme. The central questions were whether the application included the extension, whether the inspector gave adequate reasons, whether relief should nevertheless be refused, and whether the costs award was lawful.

1. Planning application. The application, properly construed, included an application, albeit retrospective, for permission to construct the second-floor extension. The conversion depended on that operational development, and the plans referred to in the permission showed it as an essential part of the scheme.
2. Authority’s reason for refusal. The extension’s alleged breach of development control was not determinative of whether permission should be granted. The authority should have acknowledged that the application encompassed the extension and determined the whole application under section 38(6) of the Town and Country Planning Act 1990. A statement that permission was unlikely to be granted was not a substantive assessment of the planning merits. The authority needed to identify the relevant policy provisions and explain why they told against permission.
3. Inspector’s decision. The inspector erred by stating that the construction of the extension was not a matter for her under section 78. She should have given fuller reasons for granting permission for it. Nevertheless, the court applied the stringent Simplex test. The decision would necessarily have been the same: the appellant’s statement addressed the extension’s planning merits, the drawings showed its design, the inspector had visited the site, and the authority had provided no material planning case against it. The court did not substitute its own planning judgment.
4. Costs. The inspector was entitled to find that the authority had acted unreasonably. Its stated reason did not relate properly to the development applied for and was not based on national or local planning policy. The costs challenge therefore failed.

Both challenges failed. The court reserved the form of order and costs for further consideration.

First-instance statutory review of the inspector’s planning and costs decisions. Both challenges failed.