The High Court in the London Borough of Hackney v Secretary of State for Housing, Communities And Local Government & Anor [2018] EWHC 2174 (Admin) has recently re-confirmed that existing alleged breaches of planning control relevant to a planning application are not material planning considerations when undertaking the planning judgement of the decision maker.
The facts
In 2016, the owner was granted by the council a certificate of lawfulness of proposed use or development (CLOPUD) for a second-floor residential extension development. The certificate was granted in reference to submitted drawings and reliance on Class B Part 1 of the General Permitted Development Rights.
Such permitted development rights were conditional upon the extension being inset by at least 20cm from the eaves of the original roof (as far as practicable). This was demonstrated on the submitted drawings for the CLOPUD but, upon construction, no inset was in fact allowed. The owner contended that it ended up as not being practicable and the permitted developments rights still applied. The council disagreed.
Subsequently, the owner submitted a planning application to convert the dwelling (including the constructed extension as per the proposed supporting drawings) into three self-contained flats.
The council refused to determine the planning application because ‘the council as the local planning authority is unable to consider an application for development where there are unauthorised works and the proposal is reliant on the unauthorised development’.
The owner successfully appealed the refusal together with an award of costs. The council brought a judicial review challenge contending that the inspector had failed to consider in her decision, as a material consideration, the breach of planning control.
The decision
The High Court dismissed the claim for judicial review. In particular, Mr Justice Lane noted:
“The [owner’s] application plainly fell to be construed as including an application for permission (albeit retrospective) to construct the second floor extension if (as turned out to be the case) the [council] took the view that this extension was not permitted by the GPDO …
In one sense, I can understand [the planning officer’s] reaction to discovering that the second floor extension had not, in fact, been built with the 20cm inset. He may well have been correct to reject the submissions made on behalf of the [owner] that it had not, in the event, been "practicable" to achieve the 20cm inset from the edges of the outrigger. However, as the Inspector said, that was not a matter for her in determining the section 78 appeal.
On the contrary, whether the second floor extension had been constructed in breach of development control was not determinative of whether the [council] should grant permission to the [owner]. That, however, was the sole reason articulated by the [council] in its refusal for permission. What the [council] should have done was to have acknowledged that the application, examined as a whole, encompassed the second floor extension and then to have determined all aspects of the application in accordance with section 38(6) of the 1990 Act”. [emphasis added]
Lesson: Breaches of planning control cannot be a material consideration, nor reason for refusal, on any planning application incorporating such works. The planning application should be considered on its own merits in reference to the local development plan and any other material considerations in accordance with the planning judgement of section 38(6) of the 1990 Act.
