Lazari Properties 2 Ltd v The Secretary of State for Levelling Up, Housing and Communities

An application under section 191 of the Town and Country Planning Act 1990 must specify the land and describe the existing use, operation or other matter. Identifying a use class is an additional requirement, not a substitute for describing the use itself.

The appropriate level of detail is a matter for the decision-maker’s judgment. An inspector is not required to construct an applicant’s case from inadequate descriptions, plans or late suggestions, particularly where fairness to other parties would be affected. Where a challenge raises an arguable issue that is severable from other sound reasons for dismissal, permission may properly be granted to determine that issue, especially where it is likely to arise on a fresh application.

The claimant, owner of the Brunswick Centre, sought judicial review under section 288 of the Town and Country Planning Act 1990 of an inspector’s dismissal of its appeal under section 195. The appeal concerned the refusal of a certificate of lawful use and development under section 191 and related costs decisions.

The inspector rejected the proposed interpretation of a planning condition following the introduction of Class E, and also found the application ambiguous and imprecise because it did not adequately describe the uses or land concerned. He further relied on evidence concerning hot food takeaway uses and ordered the claimant to pay part of the Council’s costs. On renewal, the central issues were whether the interpretation challenge was arguable and whether permission should nevertheless be refused because the appeal would have failed on other grounds.

1. Permission. Permission was granted on grounds 1 and 2, concerning the interpretation of condition 3. Permission was refused on all other grounds.

2. Section 191 application. Section 191(5)(b) of the Town and Country Planning Act 1990 requires the certificate to describe the use, operation or other matter. The parenthetical requirement to identify a use by reference to a statutory use class is additional. It does not permit an application which identifies only Class E without describing the actual use. The inspector was therefore entitled, as a matter of planning judgment, to reject the application because its description of the existing use and specification of the land were ambiguous and imprecise.

3. The appropriate degree of particularisation depends on the circumstances and is a matter for the decision-maker’s judgment, applying the approach stated in R (Flint) v South Gloucestershire Council [2016] EWHC 2180 (Admin). The inspector was not required to create revised descriptions and plans of his own motion, or to reconstruct the claimant’s case from inadequate materials. His duty to conduct an informal hearing fairly did not require him to respond positively to every late proposal that might alter the case presented to the other parties.

4. The inspector was entitled to rely on the evidence and his own site observations in finding that hot food takeaway use made the claimant’s case less probable. The claimant bore the burden of proof and had failed to establish its case on the balance of probabilities.

5. The costs decision was also unarguable. The inspector could treat the claimant’s late introduction of the flexibility argument as unreasonable conduct which generated additional work. His expert assessment of costs should not be disturbed without a good legal reason.

6. The principle in Simplex GE Holdings Ltd v Secretary of State for the Environment (1989) 57 P & CR 306 could justify refusing permission where the inspector’s outcome would necessarily have been the same. Here, however, the interpretation grounds were severable and there was a real purpose in determining them before a likely fresh section 191 application. The absence of a formal request for a declaration was not fatal, although such a declaration would be needed if that relief were pursued.

The judgment concerned a renewed application for permission. Permission had previously been refused on the papers by Sir Ross Cranston on 11 October 2022.