In Ikram v Secretary of State for Housing, Communities and Local Government and others [2021] EWCA Civ 2; [2021] PLSCS 3, the Court of Appeal has clarified the scope of planning inspectors’ powers to grant planning permission on enforcement notice appeals and the ability of retrospective section 106 agreements to correct errors in planning permissions.
The appellant was served an enforcement notice for material change of use of a site from a mixed use as a builder’s yard and residential to mixed use as a place of worship and residential. This was appealed to the Planning Inspectorate, which granted planning permission for the use. The decision letter referred to the use of the mosque on site being limited to twice daily for up to 30 people. However, the conditions attached to the planning permission failed to adequately secure this limit.
As a result, permission was granted to challenge the planning permission in the High Court, following which the site owner entered into a unilateral undertaking under section 106 of the Town and County Planning Act 1990 to secure compliance with the limited use. Despite this, the court went on to quash the inspector’s decision.
In the Court of Appeal, the appellant argued that the court had wrongly intervened as the decision whether to impose conditions on the planning permission and whether these conditions and the later unilateral undertaking were sufficiently clear and unambiguous were matters of planning judgment for the inspector.
The court rejected these arguments, pointing out that the secretary of state had conceded there had been an error of law in the inspector’s decision and had required this to be rectified by the unilateral undertaking. The court also made it clear that the interpretation of both planning permissions and undertakings is a question of law.
The court confirmed that, as the parties had agreed that the terms of the deemed application for planning permission to be considered by the inspector were narrower than the description of the breach in the enforcement notice, the inspector was limited to this extent in granting planning permission. This rendered the inspector’s decision unlawful with the unilateral undertaking being unable to rectify this, as held in R (on the application of Brown) v Carlisle City Council [2010] EWCA Civ 523; [2010] PLSCS 141. In support of this, the court found that it was entitled to consider the potential future uses of the land in determining that the unilateral undertaking would be insufficient in controlling this.
Finally, the court upheld the finding in R (on the application of Lanner Parish Council) v Cornwall Council [2013] EWCA Civ 1290; [2013] PLSCS 254 that post-decision evidence from a party, in this case a witness statement from the inspector, that seeks to supplement or explain their decision should be considered inadmissible.
This case adds to numerous other authorities which impose clear limits on inspectors’ powers to grant planning permission on enforcement notice appeals. It also sends a clear message to both applicants and local planning authorities about the danger of accepting retrospective section 106 agreements.
Erica Snellgrove is a solicitor in the planning team at Irwin Mitchell