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

The Court of Appeal dismissed the appeals against Lang J's decision to quash the Inspector's deemed grant of planning permission and his decision to quash an enforcement notice. The central legal principles were: (i) an inspector’s decision must not be corrected or supplemented by post-decision evidence except in restricted circumstances; (ii) the proper scope of a deemed application under section 177(5) of the Town and Country Planning Act 1990 is a question of law and was limited here by the parties to the 'Limited Use of the Mosque'; (iii) a unilateral planning obligation under section 106 can in principle cure some drafting defects in conditions but cannot cure a fundamental legal error where the inspector granted permission for a materially broader use than he had considered; and (iv) the court’s role is to correct errors of law, not to substitute planning merits, but the judge was entitled to test whether the unilateral undertaking and conditions together remedied the legal defect. The court agreed with Lang J that the Inspector had erred by granting permission for a wider mixed use of the whole site without having considered the planning impacts beyond the Limited Use of the Mosque, and that the subsequent section 106 undertaking did not cure that fundamental error.

Background and parties: The appeal concerns retrospective development at 852A-C Harrow Road, Wembley (the Appeal Site). The landowner and users sought to regularise a material change of use to a place of worship (a mosque) and residential use. The Council issued an enforcement notice; an Inspector allowed an appeal under ground (a) and granted planning permission under the deemed application procedure in section 177(5) of the Town and Country Planning Act 1990, subject to conditions limiting use of the mosque and numbers. The respondent neighbour challenged the Inspector’s decision by way of a statutory application and judicial review in the High Court. Lang J quashed the Inspector’s grant of permission and his decision to quash the enforcement notice. The Secretary of State and other interested parties appealed.

Nature of the proceedings and relief sought: The respondent sought quashing of the Inspector’s decisions. The appellants sought to uphold the Inspector’s grant of planning permission and his quashing of the enforcement notice, relying in part on a unilateral undertaking given after the hearing under section 106 of the 1990 Act.

Issues framed: (i) Whether post-decision evidence from the Inspector was admissible to explain or supplement the reasons in the decision letter; (ii) the proper construction of the deemed application and planning conditions (in particular whether the Inspector’s consideration was legitimately limited to the 'Limited Use of the Mosque' while his formal decision granted permission for a wider mixed use of the whole site); (iii) whether a unilateral section 106 undertaking given after the decision could cure any legal defect in the Inspector’s decision; and (iv) whether the judge below impermissibly substituted planning judgment for review of legality.

Court’s reasoning: The Court of Appeal upheld Lang J’s approach to admission of post-decision evidence as consistent with established authorities limiting such evidence to elucidation, not fundamental alteration, of the decision letter. The Court accepted that the parties had before the Inspector limited the scope of the deemed application to the Limited Use of the Mosque and that the Inspector confined his consideration accordingly. The formal decision, however, granted permission for a materially broader mixed use of the whole site. That was a legal error because the Inspector did not consider the planning impacts of the wider use. The later unilateral section 106 undertaking could not validate or retrospectively cure that fundamental error: whether an obligation cures a defect is a question of law for the court and, on the facts, the undertaking did not remove the uncertainty and potential planning impacts arising from the wider permission. The Court emphasised the public character of planning permissions and the need for third parties to know with reasonable certainty what development is authorised. The Court concluded that Lang J had not usurped planning judgment but had correctly corrected an error of law.

Appeal dismissed. The Court agreed with Lang J that the Inspector erred as a matter of law by granting planning permission for a materially broader mixed use of the whole Appeal Site than the 'Limited Use of the Mosque' which he had considered; post-decision evidence must be admitted only narrowly; and the unilateral section 106 undertaking given after the decision did not cure the fundamental legal defect.

On appeal from the High Court of Justice Queen's Bench Division, Planning Court (Lang J) [2019] EWHC 1869 (Admin). Permission to appeal to the Court of Appeal was granted by Lewison LJ (order sealed 30 September 2019). Appeal heard in the Court of Appeal resulting in judgment [2021] EWCA Civ 2.