Ikram v Secretary of State for Housing, Communities And Local Government & Ors

A planning permission and a section 106 planning obligation are construed as matters of law. Because a permission runs with the land and affects third parties, the court may determine whether its terms, read with any obligation, lawfully and sufficiently confine the permitted development.

A planning obligation may in suitable terms cure a defect in planning conditions. It cannot cure a fundamental error where an inspector assessed a deliberately limited deemed application but granted materially wider permission without considering the planning effects of that wider development. Post-decision evidence may elucidate a decision, but should not fundamentally alter or supply different reasons for it.

An inspector allowed an appeal against an enforcement notice and granted deemed planning permission under the Town and Country Planning Act 1990 for a mixed residential and place-of-worship use at the appeal site. At the hearing, the applicant had confined the proposal to twice-daily prayers in the mosque, with a maximum attendance of 30 people.

Lang J allowed the claimant's statutory challenge and judicial review, holding that the inspector had considered only that limited use but granted permission for a broader mixed use of the entire site. A unilateral undertaking given after the decision did not cure the defect. The Secretary of State and the beneficiaries of the permission appealed from [2019] EWHC 1869 (Admin).

1. The appeals were dismissed unanimously. Lang J was entitled to conclude that the inspector's permission and decision to quash the enforcement notice were unlawful.

2. The judge had correctly excluded the material part of the inspector's post-decision witness statement. A planning inspector has a statutory duty to give reasons. Later evidence may elucidate, and exceptionally correct, the stated reasons, but cannot validate the decision by providing substantially different reasons. The excluded evidence was a later explanation of why broader hours of use had been accepted.

3. The construction of both the planning permission and the unilateral undertaking was a question of law for the court. Planning permissions are public documents which run with the land. Neighbours and future purchasers must therefore be able to identify with reasonable certainty what the land may be used for. The issue was not confined to whether the inspector's planning judgment was irrational, particularly as the inspector had not considered the later undertaking.

4. A planning obligation under section 106 may, if suitably drafted, cure a defect in conditions. However, the undertaking here could at most correct the drafting of condition 1. It could not cure the fundamental error that the inspector had assessed the effects only of the defined limited use of the mosque, yet granted permission for a broader mixed use of the whole appeal site.

5. Under section 177(5) of the Town and Country Planning Act 1990, the deemed application arose from the enforcement notice. The parties could nevertheless agree a narrower scope, and had done so. The wider permission could allow other services and congregation outside the mosque, without any assessment of their planning effects. The inspector had consequently failed to take material considerations into account. The High Court corrected that error of law and did not substitute its own planning judgment.

6. Applying the appellate-review approach in Smech Properties, the Court of Appeal held that Lang J was not wrong and was plainly right.

• Court of Appeal (Civil Division) Dismissed the Secretary of State's and interested parties' appeals, affirming the quashing of the inspector's grant of planning permission and decision to quash the enforcement notice.
• High Court, Planning Court Lang J allowed the statutory application and judicial-review claim: [2019] EWHC 1869 (Admin).