Town and country planning – Planning permission – Change of use – Inspector appointed by appellant secretary of state allowing appeal against refusal of grant of planning permission for material change of use to place of worship – Judge granting respondent neighbour’s application for judicial review – Appellants appealing – Whether inspector erring in law – Appeal dismissed
The local planning authority refused planning permission for 852A-C, Harrow Road, Wembley, for a change of use from a mixed use as a builder’s yard and residential to a place of worship/community centre and residential. An enforcement notice was issued alleging, among other things, a breach of planning controls by a material change of use.
The trustee of a charity named as one of the freehold owners of the site (the second appellant) appealed, initially to obtain permission for a material change of use for the whole site, but later only for the limited use of the mosque for twice-daily prayers with a maximum attendance of 30 people. The charity was the third appellant.
An inspector appointed by the first appellant secretary of state allowed an appeal against the refusal, granted retrospective planning permission and quashed the enforcement notice. Permission was granted subject to conditions that the mosque should be used only between 12.00 and 22.30, and not occupied by more than 30 people at any one time. The charity later gave a unilateral undertaking, under section 106 of the Town and Country Planning Act 1990, not to allow any part of the land other than the mosque to be used for religious worship and not to permit the mosque to be attended by more than 30 people at any one time for the purposes of religious worship.
The respondent neighbour applied to quash the grant of planning permission and the decision to quash the enforcement notice. The judge granted the application, finding that the planning permission did not adequately control the use permitted by the inspector and that the section 106 undertaking did not cure those defects: [2019] EWHC 1869 (Admin). The appellants appealed.
Held: The appeal was dismissed.
(1) The unilateral undertaking had been given not only after the decision by the inspector but also after the High Court had granted permission to bring the applications. The terms of the undertaking were never considered by the inspector because he did not have that undertaking before him at the time. Many of the submissions made on behalf of the appellants, which had focused upon the need to respect the planning judgment of the inspector unless that judgment was Wednesbury unreasonable, were therefore not to the point. There was no planning judgment formed by the inspector on the relevant issue. If the undertaking had not been volunteered, the court would have been entitled, and probably bound, to quash the inspector’s decision because there was an obvious error of law which remained uncorrected.
(2) The judge was not required to accept that the undertaking corrected the inspector’s error. The interpretation of the undertaking and of the planning permission were questions of law for the court. A planning permission created proprietary rights and was not personal to a particular occupier or developer. It ran with the land. A planning permission was a public document. Third-party rights, eg the rights of agricultural tenants on the land, might be affected by the existence or otherwise of a planning permission. There would have to be some very good reason to persuade the court that acceptance of an undertaking that an unlawful permission would not be implemented, or would be implemented only on certain terms, would be a more appropriate course than a decision to quash an unlawful permission.
(3) The difficulty in the present context was that there was no actual application for planning permission. There was only a deemed application. Since this case arose from enforcement action, the scope of any deemed application for planning permission, under section 177(5) of the 1990 Act, was the matters stated in the enforcement notice as constituting a breach of planning control.
However, it was open to the parties to agree before the inspector that the terms of the deemed application for planning permission were to be narrower than the description of the breach of planning control set out in the enforcement notice. On the facts, that was exactly what happened at the hearing before the inspector. It followed that the only matter for which permission was sought on the deemed application before the inspector was in respect of what he called “the limited use of the mosque”. That phrase had a specific meaning which the inspector himself gave it, which included prayers at the mosque which would take place only twice a day. The consequence was that the undertaking did not and could not overcome that difficulty.
(4) The inspector fell into a fundamental error of approach because, having considered the planning impacts which flowed from the limited use of the mosque only, he went on to grant planning permission for something which was much broader. The inspector failed to take into account all material considerations. That was reinforced by the consideration that a planning permission was not personal to the particular occupier. Even if it may be difficult to envisage in practice at the moment, as a matter of law the land could be sold to others. The permission was not limited to any particular denomination. The judge was therefore entitled to test what could occur compatibly with the planning permission granted on hypothetical facts. She was not bound to consider only what had occurred or would occur on the evidence relating to this particular occupier: R (on the application of Brown) v Carlisle City Council and R (on the application of TWS) v Manchester City Council [2013] EWHC 55 (Admin); [2013] JPL 972 considered.
The High Court did not impermissibly intrude into the sphere of the planning merits or expert judgment. It was there to correct errors of law. The first instance judge had the opportunity to consider the facts in the round, whereas the Appeal Court only had a limited opportunity to see part of the whole picture. In any event, the judge was plainly right.
Robert Williams (instructed by the Government Legal Department) appeared for the first appellant; Saira Kabir Sheikh QC (instructed by James Smith (Planning Law Services) Ltd) appeared for the second to fourth appellants; Charles Streeten (instructed by Richard Buxton Solicitors) appeared for the respondent.
Eileen O’Grady, barrister
