Jonathan Clay secures win as Planning Court quashes Inspector’s decision in s.195 appeal

[2023] EWHC 2503 (Admin)
17 Oct 2023

Planning and Environment

The Planning Court has quashed a decision of an Inspector in a section 195 (Certificate of Lawful Development) appeal for failure to carry out a “fact sensitive enquiry” to determine whether a reserved matters landscape condition went “to the heart of the permission”.

The decision follows the decision of Sullivan J. in the well-known Hart Aggregates case and confirms that the process of deciding whether a condition goes to the heart of the matter is a two stage process. Even where the wording of the condition is prohibitive in character, it is necessary to take a second step and carry out a “fact sensitive enquiry” which depends on the terms of the condition in the context of the permission (in this case for four dwellings, the siting design and external appearance of which had been approved), and the permission in its planning context.

HH Judge Jarman K.C. found that:

 “35. Although he [the Inspector] says that he had little doubt that as a matter of fact or degree that the condition goes to the heart of the permission, he does not consider this in the context of the remaining landscaping matters and does not give any further indication that the necessary fact sensitive enquiry had been carried out. If, for example, all that remained is for the size and species of the six proposed new trees shown on the reserved matters application plan in 1990 to be specified, that may well inform the conclusion whether or not that went to the heart of the permission and the outcome after such an enquiry may well be different. Whether it does or not is a matter for the decision maker and not for the court.

36. Although such an enquiry was a matter for the inspector, as Mr Clay submits, there can be no confidence in this case that such an enquiry was carried out. In my judgment therefore ground 2 succeeds. Counsel agreed in that event the matter should be remitted before a different inspector for such an enquiry to be carried out.”

Read the full judgment here.

Jonathan Clay of Cornerstone Barristers appeared for the Claimant, instructed by Fladgate LLP.

Jonathan is widely recognised as a leader in his field of planning and environment with a vast amount of experience in judicial review, statutory appeals and major infrastructure projects.

Learn more about his practice here.