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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Khan & Anor v Secretary of State for Housing, Communities and Local Government & Anor [2025] EWHC 969 (Admin) (17 April 2025) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2025/969.html Cite as: [2025] EWHC 969 (Admin) |
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KING'S BENCH DIVISION
PLANNING COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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(1) MR BASHARAT HUSSAIN KHAN (2) MRS SAFREEN KHAN |
Applicants |
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and |
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(1) THE SECRETARY OF STATE FOR HOUSING, COMMUNITIES AND LOCAL GOVERNMENT (2) THE LONDON BOROUGH OF WALTHAM FOREST |
Respondents |
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MR NICK GRANT (instructed by the GOVERNMENT LEGAL DEPARTMENT) for the First Respondent
Hearing date: 8 April 2025
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Crown Copyright ©
HHJ KAREN WALDEN-SMITH:
(i) Ground 1: that the Secretary of State's Inspector failed to have regard to a policy in the development plan;
(ii) Ground 2: that the Inspector failed to have regard to a material planning consideration;
(iii) Ground 3: that the Inspector was misled by the planning officer and by the statutory declaration of a neighbour, which declaration was biased and was not challenged by cross examination;
(iv) Ground 4: that the Inspector failed to give adequate reasons for his determination.
Appeal is Out of Time
The Substantive Grounds of Appeal
The factual background
The Legal Framework
"42. In my judgment …the general rule is that it is incumbent on the parties to a planning appeal to place before the Inspector the material on which they rely. Where the written representations procedure is used, that means that they must produce such material as part of their written representations. The Inspector is entitled to reach his decision on the basis of the material put before him. 43. That general rule accords with principle, is supported by the discussion in Patel and is consistent with the decision in E v. Secretary of State. It also accords with the acceptance by Pill LJ in Dyason that "an appellant must be expected to tell the Inspector all he wishes to tell him": that was said in the context of an oral hearing, but seems to me to apply with at least as much force in the context of the written procedure. There is nothing inherently unfair in the operation of that general rule. 44. In reaching his decision on the basis of the parties' written representations, the Inspector is subject to the inquisitorial burden referred to in Dyason and must subject the material before him to rigorous examination. As Pill LJ observed, "[w]hatever procedure is followed, the strength of a case can be determined only upon an understanding of that case and by testing it with reference to propositions in the opposing case". In general, however, that process does not require anything beyond proper consideration of the material put forward by the parties."
"In my judgment at first instance in Bloor Homes East Midlands Ltd. v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin) (at paragraph 19) I set out the 'seven familiar principles' that will guide the court in handling a challenge under section 288. This case, like many others now coming before the Planning Court and this court too, calls for those principles to be stated again—and reinforced. They are: '(1)Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to "rehearse every argument relating to each matter in every paragraph" (see the judgment of Forbes J in Seddon Properties v Secretary of State for the Environment (1981) 42 P. & C.R. 26, at p.28). (2)The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the "principal important controversial issues". An inspector's reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council and another v Porter (No. 2) [2004] 1 WLR 1953, at p.1964B–G). 14 (3)The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision maker. They are not for the court. A local planning authority determining an application for planning permission is free, "provided that it does not lapse into Wednesbury irrationality" to give material considerations "whatever weight [it] thinks fit or no weight at all" (see the speech of Lord Hoffmann in Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759, at p.780F–H). And, essentially for that reason, an application under section 288 of the 1990 Act does not afford an opportunity for a review of the planning merits of an inspector's decision (see the judgment of Sullivan J, as he then was, in Newsmith v Secretary of State for Environment, Transport and the Regions [2001] EWHC Admin 74, at paragraph 6)."
"It is my experience that, more often than not in those cases—and indeed in this particular case—the grounds of appeal contained in the notice of appeal are on these sort of lines: that the judge or the inspector paid no or no sufficient heed to something; or that there was no or no adequate evidence upon which the judge or inspector could reach a particular conclusion; or, finally, that the judge or inspector failed to take into account sufficiently or at all some consideration in reaching his conclusion. If there were no evidence for a particular finding, or if the tribunal did not take into account at all a relevant consideration then these could well be grounds of appeal raising a question of law. But the contention that a tribunal failed to give adequate weight to evidence, or adequate or sufficient consideration to a particular circumstance does not. The weight which a tribunal, inspector or judge gives to a particular piece of evidence or a particular consideration is a matter for that tribunal, judge or inspector. … … a contention that the mere weight given by a tribunal to evidence or material considerations does not raise a question of law."
The Grounds of Appeal
Ground 1 – that the Secretary of State's Inspector failed to have regard to a policy in the development plan.
Ground 2: the Inspector failed to have regard to a material planning consideration or took into account an immaterial consideration
Ground 3: the Inspector was misled by the planning officer and the Appellants' neighbour about the material considerations as he relied upon the neighbour's statutory 18 declaration, but it was "biased". Further, it was unfair to rely on the Statutory Declaration without it being subject to cross examination
Ground 4: Inadequate reasoning
Conclusion and costs