No irrationality on the part of the Secretary of State’s Inspector

09 Aug 2019

Planning and Environment

The High Court has held, in an ex tempore judgment, that a latter grant of planning permission relating only to operational development did not override conditions attached to a prior grant relating also to a change of use, and that the Secretary of State’s Inspector had not acted irrationally in any of the four ways asserted by the local planning authority.

On 8 February 2012 Stroud DC (“the Council”) gave Mr Cole (the applicant-householder) permission to erect a garage on a site known as Gough Cottage. On 20 January 2015 the Council gave him permission to convert that garage into a dwelling house (thereafter known as Rosemary Cottage) on condition that he did not occupy it until the parking spaces detailed in the accompanying drawings were provided, and on condition that he maintained those spaces thereafter (“the second grant”). Mr Cole purported to implement the second grant but did so in breach of conditions, not providing the said parking spaces but occupying the property in any event.

The Council required Mr Cole to submit a further application for planning permission, which he duly did. In that application he sought to extend into the roof space of Rosemary Cottage and to move the location of the parking spaces, as he no longer owned the land on which the approved parking spaces were located. There was no application for any change of use nor was the application expressed to be a minor material amendment application.

The Council refused that application on 21 March 2018. On appeal, and by decision dated 5 February 2019, the Inspector considered that the two parts of the application could be separated; she granted permission for the extension but refused permission for the proposed alteration of the parking provision (“the third grant”).

The Council sought, and was granted, permission to bring a statutory review against that decision on 5 grounds, one of which related to an apparent failure to take into account the Council’s minimum parking standards, and the other four of which asserted irrationality on the part of the Inspector. In particular, the Council argued that the Inspector had been irrational to:

(i) Part-refuse the appeal on parking grounds but “approve” drawings that included the said parking spaces.

(ii) “Approve” the existing and approved plans.

(iii) Part-refuse the appeal on parking grounds but not remove related permitted development (PD) rights.

(iv) Allow the appeal insofar as it related to the extension in circumstances in which there was no parking provision.

HHJ Keyser QC, sitting as a judge of the High Court, dismissed all five grounds. The Secretary of State submitted, and the Judge accepted, that the third grant of permission did not undermine or override the conditions attached to the second grant such that the Council’s parking standards did not arise and the Inspector was not obliged to consider them a material consideration. He then found, in relation to the irrationality grounds that:

(i) It was tolerably clear that the proposed drawings were only approved to the extent of the grant of permission.

(ii) There was no merit in any argument that criticised the Inspector for “approving” existing and proposed drawings in her decision.

(iii) The Council could not succeed in any argument that the Inspector had been irrational not to exclude PD rights.

(iv) The question whether it was appropriate to grant permission for an operational development where underlying conditions restricted user was a matter for planning judgement, and did not fall for consideration on a statutory review.

Riccardo Calzavara appeared for the Secretary of State, instructed by the Government Legal Department.