London Borough of Hackney v Secretary of State for Housing Communities And Local Government & Ors

In a statutory challenge to an enforcement appeal decision, the court held that an inspector must distinguish legal interpretation from planning judgment and must address the principal controversial issues.

Where London Plan 2016 minimum space standards refer to new dwellings, they apply to studios as well as flats and houses. “Outlook” is a consideration separate from daylight and sunlight where the development plan treats them separately. A decision-maker applying Planning and Compulsory Purchase Act 2004, section 38(6), must determine whether the proposal accords with the development plan read as a whole. Failure to undertake that essential step is an error of law.

The claimant challenged an inspector’s decision allowing the developers’ appeal against an enforcement notice concerning the conversion of a warehouse into 25 flats.

The inspector granted planning permission for the first-floor development under ground (a) and found that the ground-floor use did not constitute a breach of planning control under ground (c). A section 289 appeal concerning the ground-floor use had already been remitted by consent following the decision in RSBS Developments Ltd v Secretary of State [2020] EWHC 3077 (Admin).

The remaining issues were whether the inspector had considered outlook, correctly interpreted the London Plan space standards, and determined accordance with the development plan as a whole.

1. The section 288 challenge succeeded. The inspector’s decision was quashed and the ground (a) appeal was remitted to a different inspector for reconsideration.

2. “Outlook” under Policy DM2 of the Hackney Development Management Local Plan is distinct from daylight and sunlight. It concerns the view available from a property. Because the inspector identified outlook as a main issue but did not address it, she failed to consider a mandatory and material consideration. The error was significant.

3. The minimum space standards in Policy 3.5 and Table 3.3 of the London Plan 2016 apply to all new dwellings, including studio units. The standards are assessed by reference to bed spaces and occupants, not merely the number of separate bedrooms. An open-plan design does not remove a dwelling from the policy. The first-floor units therefore fell within the one-bedroom, one-person category and, having showers rather than baths, required at least 37 square metres. At 35 square metres, they failed to meet the minimum standard.

4. An appeal under section 174(2)(a) of the Town and Country Planning Act 1990 is a deemed application for planning permission and is subject to section 177(2) of that Act and section 38(6) of the Planning and Compulsory Purchase Act 2004. The decision-maker must identify and interpret the relevant development-plan policies and determine whether the proposal accords with the development plan read as a whole. The inspector failed to perform that essential step.

5. The omission concerning the development plan might alone have been immaterial under the Simplex GE Holdings Ltd v Secretary of State for the Environment principle, because the inspector would probably have reached the same conclusion. That principle could not apply here because the errors concerning outlook and space standards might affect the overall planning balance.

6. The earlier consent order remitting the section 289 appeal also vitiated the decision as a whole. The inspector had considered a single appeal concerning one enforcement notice and had proceeded on the erroneous basis that the ground-floor residential use was lawful. The entire decision therefore required reconsideration.

The judgment itself records no prior appellate decision in the same proceedings. The inspector’s decision was challenged under sections 288 and 289 of the Town and Country Planning Act 1990. The section 289 appeal had already been remitted by consent; the present court allowed the section 288 challenge and remitted the ground (a) appeal for reconsideration by a different inspector.