Ikram v Secretary of State for Housing, Communities And Local Government & Ors

Factual and Procedural Background

This opinion concerns appeals against the decision of Judge Lang dated 17 July 2019, which granted (i) a statutory application to quash the grant of planning permission by an Inspector appointed by the Secretary of State for a change of use of land at the Appeal Site, from a mixed use as a builders' yard and residential to a mixed use as a place of worship and residential; and (ii) a claim for judicial review of the Inspector’s decision to quash an enforcement notice issued by the local planning authority, the Council.

The Council was the First Interested Party but did not actively participate in the appeals. The Secretary of State was the First Appellant, and the Second, Third, and Fourth Appellants were interested parties who benefited from the grant of planning permission by the Inspector. The Claimant below is the Respondent before this Court.

The Inspector’s decision to quash the enforcement notice was challenged by judicial review, while the grant of planning permission was challenged by statutory application under section 288 of the Town and Country Planning Act 1990. Thus, two sets of proceedings arose but with overlapping substantive issues. Permission to appeal was granted by Lewison LJ on 30 September 2019.

At the hearing, submissions were made on behalf of the Secretary of State, the other Appellants, and the Respondent.

Factual background includes that the Council granted retrospective planning permission in March 2019 for premises at nearby addresses to be used as a place of worship and community centre, owned by Company A, an unincorporated charity with trustees including the Second Appellant. The Respondent lives adjacent to the Appeal Site.

Company A purchased the Appeal Site in 2012, undertook construction and changed the use to a Mosque without planning permission. Retrospective permission was refused by the Council in May 2017, leading to an enforcement notice issued in June 2017 alleging breach of planning controls by material change of use to mixed residential and community centre/place of worship.

There was a successful appeal against the enforcement notice by the Second Appellant on behalf of Company A. The Inspector granted planning permission subject to conditions limiting the use of the Mosque to twice daily prayers with a maximum attendance of 30 people (“the Limited Use of the Mosque”).

The Respondent applied to the High Court to quash the Inspector’s decision, which was permitted by Ouseley J in January 2019, identifying a drafting error in condition 1 of the planning permission. Company A subsequently gave a unilateral undertaking under section 106 of the 1990 Act containing planning obligations restricting use of the land outside the Mosque for religious worship and limiting attendance at the Mosque to 30 people.

Legal Issues Presented

1. Whether the Inspector erred in limiting his consideration of planning permission to the use of the Mosque alone, excluding other parts of the Appeal Site subject to the enforcement notice.
2. Whether the conditions and planning obligations imposed were sufficiently precise and enforceable to control the use of the Appeal Site.
3. The admissibility and scope of post-decision evidence, specifically the Inspector’s witness statement, in judicial review proceedings.
4. Whether the unilateral undertaking given after the Inspector’s decision could cure the legal errors identified in the planning permission.

Arguments of the Parties

Secretary of State's Arguments

• The Judge erred by overstepping into planning judgment, which is the Inspector’s domain, applying an overly critical approach discouraged by precedent.
• The conditions should be interpreted with common sense and not too narrowly, and ambiguity resolved in context of the decision as a whole.
• The Inspector properly exercised planning judgment in imposing conditions limiting the use of the Mosque.
• The court should defer to the Inspector’s expert judgment regarding the sufficiency and clarity of conditions and planning obligations concerning the Appeal Site outside the Mosque.
• The Judge applied an incorrect and unduly restrictive test for the admissibility of the Inspector’s witness statement, excluding relevant evidence.
• The unilateral undertaking should be considered in assessing whether the legal error in the Inspector’s decision was rectified.

Other Appellants' Arguments

• The Judge erred in interpreting the scope of the planning permission, wrongly concluding that use was not limited to twice daily prayers with a maximum of 30 people.
• The unilateral undertaking prevents other activities not intended by the Inspector’s decision.
• The Judge wrongly restricted her analysis to only the "Formal Decision" part of the Inspector’s decision letter.
• The Judge impermissibly substituted her own planning judgment for that of the Inspector.
• The Judge erred in giving weight to the planning history of breaches at the Appeal Site, which the Inspector had already considered.
• The Judge failed to address submissions about intensification of use and the requirement of planning permission for the Festival Use involving a marquee.

Respondent's Arguments

• The unilateral undertaking does not cure the fundamental legal errors in the Inspector’s decision.
• The Inspector failed to take into account all material considerations by granting permission beyond the Limited Use of the Mosque.
• The planning permission as granted permits uses beyond those considered by the Inspector, including multiple services and activities outside the Mosque, which were not assessed for their planning impacts.
• The Judge correctly exercised her role to correct errors of law without intruding on planning merits.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analysed the admissibility of the Inspector’s witness statement, affirming the High Court’s approach to admit evidence only to the extent it reflected factual recollections of the hearing, excluding attempts to supplement or justify the decision post hoc.

Regarding the main issue, the Court acknowledged that the Inspector’s decision limited consideration to the Limited Use of the Mosque but granted planning permission for a broader mixed use across the entire Appeal Site. This was a fundamental legal error because the Inspector failed to consider material planning issues arising from the wider use of the site.

The unilateral undertaking was given after the Inspector’s decision and the High Court’s permission to bring proceedings, and thus was not before the Inspector. The Court highlighted that while planning obligations can remedy defects in conditions, the undertaking here did not cure the fundamental error of granting permission beyond the scope of the deemed application.

The Court emphasised that interpretation of planning permissions and undertakings are questions of law, important for third parties and future landowners to understand the permitted uses with reasonable certainty.

The Court rejected the Secretary of State’s and other Appellants’ arguments that the Judge impermissibly intruded into planning judgment, affirming that correcting errors of law is the court’s role. The Judge was entitled to assess whether the undertaking sufficiently cured the error and concluded it did not.

The Court found that the planning permission as granted could permit uses not assessed by the Inspector, such as multiple services, weddings, and funerals, potentially with congregations outside the Mosque, which raised unconsidered planning impacts.

Applying the standard of appellate review, the Court found no error in the Judge’s decision and upheld her conclusions.

Holding and Implications

The Court DISMISSED the appeal, affirming the High Court’s decision to quash the grant of planning permission due to fundamental legal errors in the Inspector’s decision.

The direct effect is that the planning permission granted by the Inspector is quashed and the enforcement notice stands. No broader precedent was established beyond the correction of legal errors in the context of planning permissions granted on deemed applications arising from enforcement proceedings and the limits of post-decision undertakings.