Limiting planning permission to that applied for

The Court of Appeal has confirmed that the use permitted must be limited to that applied for, write Saira Kabir Sheikh QC and Charles Streeten.

The Court of Appeal has handed down judgment in Ikram v Secretary of State for Housing and Communities & Another [2021] EWCA Civ 2 and in doing so has upheld the decision of Lang. J to quash an Inspector’s decision letter granting planning permission for use of land in Brent as a Mosque.

The Secretary of State as well Trustees of the Charity Islamic Link and the Bubal Murad Centre had appealed against Lang J’s first instance judgment, with permission to appeal granted by Lewison LJ on 30 September 2019.

Although the grounds of appeal were formulated in a number of ways, the Court considered that the essential issues raised by the appeal related to whether Lang J had been wrong to hold that the Inspector had failed properly to restrict by condition the use of the land by to that proposed and assessed at the planning appeal hearing, and/or whether she had been wrong to find that the defect in the conditions had not been cured by an after the event section 106 agreement executed following the grant of permission for judicial and statutory review at first instance.

The Appellants’ argument was that the conditions necessary to make the development acceptable in planning terms were a matter of judgment for the Inspector, with which the court could interfere on Wednesbury grounds only. It was therefore argued that in finding the conditions (and subsequent section 106 planning obligation) to be inadequate, Lang J had trespassed impermissibly into the realms of the planning merits. In addition, the Secretary of State appealed against the Court’s refusal to admit certain aspects of the after the event evidence produced by the Planning Inspector at first instance.

Giving the leading judgment, Singh LJ (with whom Andrews and Nugee LJ agreed) dismissed the appeal on all grounds. He held that Lang J had been right to find that in assessing only a specific use of the land, involving prayers at specific times of day, but failing to impose conditions which restricted the use of the site only to that which he had assessed, the Inspector “fell into a fundamental error of approach”.

As to whether the section 106 planning obligation executed by the Appellant had cured the defects in the permission, Singh LJ held that it had not. In doing so he cited the decision of Sullivan LJ in R (Thomas Brown) v Carlisle CC [2010] EWCA Civ 523 in which the court held that there must be a “very good reason” for accepting such an obligation in preference to quashing a defective consent, and also accepted the submission that (although in this case the judge was “plainly right”) the question of whether or not to quash the decision notwithstanding the execution of the section 106 planning obligation was one for the judge at first instance with which an appellate court will not lightly interfere, especially in circumstances (as in Planning Court cases) where the first instance judge has particular expertise. Given the timing of the planning obligation, which was designed to cure defects in the Inspector’s decision, the suggestion that Lang J had trespassed impermissibly into the planning merits in assessing its adequacy was “not to the point” since “there was no planning judgment formed by the Inspector on the relevant issue”.

Finally, the court rejected the Secretary of State’s submission that Lang J had been wrong to refuse to admit the Inspector’s ex post facto evidence noting that the starting point is that the Inspector is under an express statutory duty to give contemporaneous reasons for his decision.

The approach of the court was to apply existing authority which holds that a planning decision maker is required to ensure that any permission granted is limited to that applied for and assessed. The judgment also sets out what it considers to be the proper approach to assessing the remediation of any legal errors after the event by way of a section 106 planning obligation.

Saira Kabir Sheikh QC is a barrister at Francis Taylor Building. She appeared on behalf of the 2nd – 4th Appellants instructed by James Smith (Planning Law Services Ltd).

Charles Streeten, also of FTB, appeared for the Respondent, instructed by Richard Buxton Environmental and Public Law.