Planning obligations, judicial review and statutory challenges

The High Court has quashed the grant of planning permission in a case involving a mosgue in Brent. Charles Streeten explains why.

Lang J has handed down judgment in Ikram v Secretary of State for Housing Communities and Local Government [2019] EWHC (Admin).

The Claimant, Mr Ikram, lived at 854 Harrow Road. Adjacent to 852 and 856-858 Harrow Road. 856-858 Harrow Road were constructed as two semi-detached dwelling houses and were in residential use for many years. In 2007 use of 856-858 Harrow Road began to be used as a place of worship and community centre, in breach of planning control. Its use was regularised by subsequent grants of retrospective planning permission.

852 Harrow Road comprises a former builders’ yard, located to the rear of a dwelling house that had been converted into flats. In 2012 International Islamic Link purchased 852 Harrow Road. It applied for retrospective planning permission inter alia to change the use of a workshop into a prayer hall. Planning permission was refused and in May 2017 the council refused the application for planning permission and served an enforcement notice alleging the material change of use of 852 Harrow Road to use as “residential and a community centre/place of worship”

The International Islamic Link appealed against the enforcement notice on grounds (a) and (g).

The Appeal was determined at a hearing, at which International Islamic Link amended its application for planning permission under ground (a) and sought planning permission for a more limited use of the 852 Harrow Road than previously requested. The Inspector allowed the appeal on that basis, quashing the enforcement notice and granting planning permission subject to conditions.

The claimant challenged those decisions by judicial review and pursuant to section 288 of the Town and Country Planning Act 1990  (“the 1990 Act”) on several grounds, the first of which was that the planning permission granted by the Inspector permitted development going beyond the matters considered by the Inspector.

It was originally contended that the court had not jurisdiction to hear these appeals. Nevertheless, on 31 January 2019 Ouseley J granted permission.

Following the grant of permission International Islamic Link executed a unilateral undertaking pursuant to section 106 of the 1990 Act, with the intention of rendering academic the claimant’s challenge. It also continued to argue that the Court lacked jurisdiction to hear the judicial review.

Following service of the claimant’s skeleton argument, that issue was dropped. As the judgment records at para. 46, those who were not parties to an enforcement appeal, but who have standing, can challenge the decision of a planning inspector to quash an enforcement notice by way of judicial review.

The claim was heard by Lang J on 1 May and 24 June 2019. In a judgment dated 17 July 2019 she allowed the claims on Ground 1 only. In essence, she held that the planning permission granted went beyond the matters taken into account by the Inspector and that the section 106 planning obligation did not cure those defects. She quashed the Inspector’s decision letter and the grant of planning permission, re-instated the enforcement notice and remitted the matter for redetermination by a different inspector.

The case illustrates that a planning obligation will not always render a claim for judicial review/ statutory challenge academic and highlight the importance of carefully considering the effect the terms of any grant of planning permission.

Charles Streeten is a barrister at Francis Taylor Building. He acted for the successful claimant, instructed by Richard Buxton Environmental and Public Law.

Saira Kabir Sheikh QC, also of FTB, acted for International Islamic Link instructed by James Smith (Planning Law Services) Limited.