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

The Court of Appeal allowed the Secretary of State's appeal and concluded that the inspector lawfully exercised planning judgment in finding that the proposed subdivision of 26 Highland Road would harm the character and appearance of the area. The court held that the inspector's assessment was not confined to purely visual changes to the building's exterior but properly encompassed broader "character and appearance" considerations in line with the development plan policies cited (BE1, DMHB 11 and DMHB 12) and the National Design Guide. The inspector lawfully took into account the proposed rear fence and the set-back side extension, found that those combined features would create narrower, contrived plot forms and an incongruous new dwelling, and reasonably gave limited weight to the appellant's fallback (permitted development) argument. The High Court judge was wrong to characterise the inspector's reasoning as restricted to visual impact and to treat the inspector's conclusion as irrational.

This is an appeal against the High Court's quashing of an inspector's decision dismissing a section 78 planning appeal. The appellant (Secretary of State) appealed the order of Mr David Elvin Q.C. (sitting as a deputy judge of the High Court), which had upheld a challenge brought by Mr Nasir Kazalbash under section 288 of the Town and Country Planning Act 1990 and quashed the inspector's decision that had dismissed an appeal against the London Borough of Hillingdon's refusal of planning permission for the subdivision of a semi-detached dwelling (conversion to 1 x 3-bed and 1 x 2-bed unit with associated amenity and parking) at 26 Highland Road.

Background and factual matrix:

• The council refused permission on the single ground that subdivision would produce narrow plot widths and a cramped form harmful to the street scene, citing local plan policies BE1, DMHB 11, DMHB 12 and Policy D6 of the London Plan.
• The appellant's planning statement argued no external changes to the building would be made and that a rear fence (the only external alteration) would in any event fall within permitted development rights (Schedule 2, Part 2, Class A of the GPDO).
• The inspector considered written representations, carried out a site visit (5 January 2022) and issued a decision dated 19 January 2022 dismissing the appeal on the basis that the proposal would harm the character and appearance of the area.

Procedural posture:

• Claimant sought judicial review under section 288 to quash the inspector's decision; the High Court allowed the claim in part, finding the inspector's conclusion irrational insofar as it focused on visual impact despite no external change to the extension.
• The Secretary of State appealed to the Court of Appeal (this judgment).

Issues before the court:

1. Whether the inspector wrongly relied on an alleged concession by the appellant about the fence's visibility (first ground).
2. Whether it was irrational for the inspector to conclude that the proposal would harm the "character and appearance of the area" given there would be no change to the external appearance of the extension (second ground).

Court's reasoning and conclusions:

• The Court of Appeal held that the inspector lawfully addressed the "main issue" (effect on character and appearance) and that his reasoning in paragraphs 4 to 8 of the decision letter formed a coherent and lawful planning judgment.
• The inspector properly treated "character and appearance" as a broader concept than mere visual appearance and was entitled to take into account plot form, building line, set-back, rhythm of the street and the proposed rear fence as material features that would be "read" in the street scene.
• The inspector reasonably gave limited weight to the fallback of permitted development rights and was entitled to assess the proposal as presented, informed by his site visit.
• The court found no legal error or irrationality in the inspector's assessment and allowed the appeal.

Appeal allowed. The Court of Appeal held that the inspector lawfully exercised planning judgment in concluding that the subdivision would harm the character and appearance of the area. The inspector’s assessment properly encompassed broader character considerations (plot sizes, building line, rhythm of the street and the proposed fence) and did not restrict the analysis to purely visual change; the High Court was wrong to quash the decision as irrational.

Appeal to the High Court under section 288 of the Town and Country Planning Act 1990 resulted in an order of Mr David Elvin Q.C. (Deputy High Court Judge) dated 8 July 2022 quashing the inspector’s decision ([2022] EWHC 2301 (Admin)). The Secretary of State appealed to the Court of Appeal and the appeal was allowed ([2023] EWCA Civ 904). The inspector’s decision dated 19 January 2022 (planning inspectorate decision letter) was reinstated by the Court of Appeal.