Singhal UK Limited v Secretary of State for Levelling Up Housing and Communities & Anor

In a planning statutory review, procedural fairness requires parties to have a proper opportunity to address a planning condition which removes permitted development rights, particularly where the condition materially restricts rights beyond the development directly determined. A failure to provide that opportunity is actionable only where it causes substantial prejudice.

An inspector need not expressly mention every relevant national policy where the decision demonstrates that the substance of the policy was taken into account. For permitted development under Class E, Part 1, Schedule 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015, size is material but not determinative. The question is whether the outbuilding, viewed as a matter of fact and degree, is genuinely and reasonably required for purposes incidental to the enjoyment of the dwellinghouse.

The claimant challenged, under sections 288 and 289 of the Town and Country Planning Act 1990, a planning inspector’s decision concerning an enforcement notice served in relation to a dwelling, rear extension, link extension, residential outbuilding and subdivision into three residential units.

Earlier inspector decisions had been quashed or remitted. On the third redetermination, the inspector granted permission for the rear extension but required demolition of the outbuilding and imposed a condition removing specified Class E permitted development rights.

The claimant advanced three permitted grounds: procedural unfairness in imposing the condition without an opportunity to make submissions; failure to take account of paragraph 54 of the National Planning Policy Framework; and failure to consider material matters or give adequate reasons concerning the outbuilding’s use for purposes incidental to the dwellinghouse.

1. The challenge succeeded in part. The inspector’s decision was unlawful because the parties had not been given an opportunity to address the proposed condition removing permitted development rights. Consequential matters were left for agreement or written submissions within 14 days of hand-down.
2. Although the parties had discussed scenarios in which permitted development rights could not lawfully be removed, permutation 3 was materially different. It involved permission for the rear extension, demolition of the outbuilding and no permission for a replacement outbuilding. The condition therefore removed the claimant’s ability to erect an outbuilding for a purpose incidental to the enjoyment of the dwellinghouse, whatever its size or situation.
3. The procedural omission substantially prejudiced the claimant. The inspector had considered a smaller outbuilding but had rejected it only because insufficient details were available. An opportunity to address the condition, or a less absolute form of it, might have affected its justification. The harmless-error submission was rejected.
4. The second ground failed. Paragraph 54 of the National Planning Policy Framework required clear justification for conditions restricting permitted development rights. The inspector’s reference to the relevant Planning Practice Guidance tests showed that he had understood and applied the need for justification. The identified planning harm supplied that justification.
5. The third ground also failed. The inspector was entitled to conclude that the outbuilding, taken as a whole and as a matter of fact and degree, was not genuinely and reasonably required for purposes incidental to the enjoyment of the dwellinghouse. A gym and office could be reasonably required, and the boiler, white goods and storage could be useful, but the whole third space was not reasonably required. The inspector treated size as material in its relationship to the dwelling, rather than as a determinative test.

The judgment states that this was the third High Court challenge concerning the same enforcement notice. Earlier proceedings resulted in remittals for redetermination, including an order dated 5 April 2019 and a further order dated 27 April 2022. The present challenge was brought against the third inspector’s decision dated 5 May 2023.