Borough persuades judge to quash decision of inspector on flats amalgamation

The Royal Borough of Kensington & Chelsea has successfully applied to the High Court to have quashed a decision by a planning inspector to allow the amalgamation of four flats into a single dwelling.

The case of Royal Borough of Kensington And Chelsea v The Secretary of State for Communities And Local Government [2017] EWHC 1703 saw the local authority apply for an order pursuant to section 288 of the Town and Country Planning Act 1990 to quash a decision of 17 January 2017 of an inspector appointed by the Secretary of State for Communities and Local Government.

By that decision, the inspector allowed Charles Noell’s appeal against the failure by the council to determine within the prescribed period his application for planning permission to develop land in West London by amalgamation of four existing flats to form a single family dwelling and associated internal alterations.

Kensington & Chelsea relied upon two grounds of claim:

1. The inspector made a mistake of fact when calculating housing land supply as he deducted vacant units returning to use from the requirement whilst including those units in the supply.
2. The inspector made a mistake of fact by stating that the housing land supply would be boosted further by recent deliverable planning permissions when those planning permissions were already accounted for in the calculated supply.

The Secretary of State conceded that the decision should be quashed on the first ground of claim, but Mr Noell contested the claim.

Neil Cameron QC, sitting as a Deputy High Court Judge, agreed that the inspector’s decision should be quashed.

On the first ground he said there was no dispute between the claimant and Mr Noell that, in deducting vacant units from the housing land requirement, the inspector made a mistake of fact.

The judge added: “The issue to be determined is not whether the mistake played a decisive part in the inspector's reasoning or whether it played a part in the dominant reasoning, but whether it played a material part in the reasoning. An inspector's decision letter must be read as a whole and read fairly.

“In my judgment it is clear that the mistake of fact played a material part in the inspector's reasoning and decision and as a result led to unfairness.”

The Deputy High Court Judge rejected the second ground of claim. It had been open to the inspector, in the exercise of his planning judgement, to make the finding that he did, and that there was no mistake of fact.

Judge Cameron refused to exercise his discretion not to quash. “For the reasons I have given the error was material, and I cannot say that the decision would have been the same if the error had not been made.”