Nasir Kazalbash v Secretary of State for Levelling Up, Housing and Communities & Anor

In a planning challenge, the court must read an inspector’s decision letter as a whole and respect the evaluative nature of planning judgment. Harm to an area’s character and appearance is broader than visual appearance alone. It may include building lines, plot widths and forms, setbacks, the composition of buildings and established street patterns. A proposal may therefore be harmful even where an existing building’s exterior is unchanged, if subdivision, a fence and the creation of a separate dwelling produce a noticeable incongruity. An inspector may give limited weight to a permitted-development fallback where the relevant work is unlikely without the proposed development. A logical, coherent and adequately reasoned assessment is not irrational merely because another planning view is possible.

A planning inspector dismissed an appeal under section 78 against refusal of permission for the subdivision of a semi-detached dwelling into two homes. The applicant challenged the decision under section 288 of the Town and Country Planning Act 1990. The High Court, in [2022] EWHC 2301 (Admin), upheld the challenge on the ground that the inspector had irrationally treated the existing extension as visually incongruous despite there being no proposed external change to it. The Secretary of State appealed. The central issue was whether the inspector had unlawfully confined the assessment of character and appearance to visual impact.

1. Appeal allowed. The Court of Appeal held that the High Court had wrongly treated the inspector’s reasoning as confined to visual impact. The judgment of Sir Keith Lindblom SPT was agreed by Lewis LJ and Nugee LJ.
2. The court applied the principles governing review of the lawfulness of a planning inspector’s decision-making stated in St Modwen Developments Ltd. v Secretary of State for Communities and Local Government and another [2018] PTSR 746. The decision letter had to be read as a whole. The inspector had identified the single main issue, addressed the decisive considerations and reached a logical, coherent and properly reasoned planning judgment. The court was not entitled to substitute its own planning assessment.
3. The inspector’s reference to character and appearance was not limited to visual appearance. The concept could include building lines, plot widths and sizes, plot forms, the composition of buildings, established street patterns and setbacks. It was unnecessary to separate considerations of character from considerations of appearance.
4. The inspector was entitled to find harm despite there being no material change to the exterior of the building itself. The proposed fence would physically divide the site into narrower plots. The side extension would become a separate dwelling set back from the established building line. The inspector was entitled to regard those features as producing a contrived and incongruous development which would be noticeable or readable from the surroundings. His site visit informed that planning judgment.
5. The inspector was also entitled to give limited weight to the claimed fallback position that the fence could be erected under Part 2, Class A of the Town and Country Planning (General Permitted Development) (England) Order 2015. He could assess the proposal as presented where the fence was unlikely to be erected in that manner without the proposed subdivision.
6. The assessment was sufficient to discharge the inspector’s obligations under section 70 of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004. The inspector’s conclusion was not irrational and contained no error of law.

• Court of Appeal (Civil Division) — In [2023] EWCA Civ 904, the appeal was allowed.
• High Court, King’s Bench Division, Planning Court — In [2022] EWHC 2301 (Admin), the court upheld the statutory challenge and quashed the inspector’s decision.