London Borough of Haringey v Secretary of State for Housing Communities and Local Government & Anor

Under section 55(2)(a)(ii) of the Town and Country Planning Act 1990, the decision-maker must identify the relevant building and then assess whether the works materially affect its external appearance. Those are distinct questions. The statutory definition of building includes any part of a building, so the effect on a separate part may be material even if the building as a whole is unaffected. The assessment must be confined to the building identified for the statutory purpose. The appearance of a wider area or conservation area is legally irrelevant. A planning inspector’s decision must give clear and adequate reasons where an unusual identification of the building is adopted. A material misdirection on either issue justifies allowing a statutory appeal and remitting the matter.

The local planning authority issued an enforcement notice alleging the installation, without planning permission, of UPVC windows on the ground-floor front elevation of a property in a conservation area. The property formed part of a short terrace. The owner appealed under section 174 of the Town and Country Planning Act 1990, including on the ground that the works did not constitute a breach of planning control.

The planning inspector allowed the appeal. He treated the whole terrace as the relevant building and concluded that the predominance of UPVC windows in the terrace and surrounding area meant that the works did not materially affect its external appearance. The authority appealed under section 289. The issues were whether the inspector had identified the correct building, whether he had applied the statutory test to the building rather than the wider area, and whether any errors were material.

1. Appeal allowed and matter remitted. The inspector’s decision contained material errors of law on both central issues under section 55(2)(a)(ii) of the Town and Country Planning Act 1990.
2. The inspector materially relied on Church Commissioners v Secretary of State for the Environment [1995] 71 P&CR 73. That case concerned the appropriate planning unit and did not determine what constituted the building for the purposes of section 55. The inspector gave no adequate independent reasoning for treating the entire terrace as one building. Although that conclusion was not necessarily legally unavailable, it was unusual and required clear reasoning.
3. The inspector also conflated the identification of the building with the separate question whether the works materially affected its external appearance. The statutory definition in section 336 includes any part of a building. It was therefore open to the decision-maker to assess the effect on a part alone. To the extent that Burroughs Day v Bristol City Council [1996] 1 PLR 78 suggested otherwise as a matter of law, that reasoning was incorrect.
4. The statutory assessment must be confined to the external appearance of the relevant building. The prevalence of UPVC windows elsewhere in the conservation area, and the authority’s past enforcement practice, were legally irrelevant to that assessment. The inspector’s further reasoning showed that the wider area had materially influenced his conclusion.
5. The court applied the flexible approach to reading decision letters stated in Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin), but held that the errors here went to the heart of the reasoning. The immaterial-error principle in Simplex Holding v Secretary of State for the Environment 1989 57 P&CR 306 did not save the decision.

• High Court (Administrative Court): allowed the section 289 appeal against the inspector’s decision and remitted the matter to the First Respondent.
• Planning inspector: allowed the owner’s enforcement appeal on ground (c), concluding that the window installation was not development under section 55.