Court of Appeal allows appeal over subdivision of dwelling house and whether it would harm character and appearance of area

The Court of Appeal has allowed an appeal by the Secretary of State for Levelling Up, Housing and Communities concerning the subdivision of a house in Hillingdon, so overturning a previous High Court decision.

In Kazalbash v Secretary of State for Levelling Up, Housing And Communities [2023] EWCA Civ 904 an inspector had refused to grant planning permission for the change of use of an extension due to the unacceptable impact on the character and appearance of the area.

David Elvin QC, sitting as a deputy High Court judge, had quashed the inspector’s decision on the basis of irrationality, saying it was “difficult to understand why the unchanging appearance of the extension would appear incongruous ‘as a separate dwelling when there is no change proposed to the extension, other than the internal change in the rear subdivision of the garden’.”

Sir Keith Lindblom, Senior President of Tribunals, said the sole ground of appeal was that the judge erred in restricting the inspector's decision to contemplation of visual impact.

“This raises for us a single issue: whether the judge was right to hold that the inspector erred in law in concluding that the proposed development ‘would harm the character and appearance of the area’”.

Hillingdon had in May 2021 refused planning permission because the property forms part of a continuous line with a rigid building line and uniform plot widths.

It considered that the proposed sub-division would result in narrow plot widths and a cramped form of development which would be harmful to the character and appearance of the street scene.

Sir Keith said it was clear the inspector accepted Hillingdon’s case and rejected that of the planning applicant Nazir Kazalbash.

“The inspector was able to reach these conclusions in spite of the fact that there would be no, or no material, change to the exterior of the building itself, but only a change to its rear by the erection of the fence,” Sir Keith said.

“He was well aware of that. But secondly, he was also in no doubt that this change to the site would be visible…and he clearly considered that it would make the proposed development unacceptable.”

Sir Keith said the inspector’s approach was true to the broad definition of ‘street scene’ in the National Design Guide, which “extends to [the] appearance of all the elements of a street, including … the buildings … along its edges, particularly the composition of buildings on each side of the street".

He said the idea of “the composition of buildings on each side of the street” must encompass the considerations on which the inspector concentrated about the front building line and rhythm in the street scene and the fact of the extension being set well back from the established front building line of this side of the street.

Sir Keith concluded: “On that straightforward reading of the inspector's conclusions on the ‘main issue’ in the appeal, I do not think his decision can be faulted in law.”

He allowed the appeal and Lord Justice Lewis and Lord Justice Nugee agreed.

Mark Smulian