Kazalbash v Secretary of State for Levelling Up, Housing and Communities and the London Borough of Hillingdon Council

In 2021 planning permission for the subdivision of a semi-detached dwelling house in a residential street in the London suburb of Northwood was dismissed by a planning inspector as it would harm the character and appearance of the area. The appeal judge in the high court considered that this conclusion was irrational and allowed the development, quashing the decision and granting planning permission in 2022.

The court of appeal has now concluded that the planning inspector’s decision had been logical, coherent, properly reasoned, and sufficient to discharge his statutory obligations in relation to s70 of the Town and Country Planning Act 1990 and s38(6) of the Planning and Compensation Act 2004 (Kazalbash v Secretary of State for Levelling Up, Housing and Communities and the London Borough of Hillingdon Council [2023] EWCA Civ 904).

In coming to this conclusion, the court of appeal judge considered that the planning inspector had assessed the scheme against the relevant local plan policies with reference to the prevailing pattern of development in the area. This included strong building lines, consistent setback from the road, and similar plot sizes and widths, creating a pleasant rhythm in the street scene which contributed positively to the character and appearance of the area. There would be no change to the external fabric of the building; a new house would be created by dividing the rear garden into two with a fence, and using the existing side extension as a separate house. The inspector had noted that while the setback of the extension may have helped it to appear subservient when constructed as an extension, as a separate dwelling it would appear incongruous, harming the character and appearance of the area. The judge in the court of appeal stated that the inspector’s decision could not be faulted in law and was legally impeccable, and the appeal was allowed.

Although this site was not in a conservation area, the court of appeal judge analysed the application of the phrase ‘character and appearance of the area’. He stated that ‘the task the inspector set himself was to exercise his own planning judgement in assessing “the effect of the proposal on the character and appearance of the area”.’ The judge stated that the inspector was not using this expression as if it equated to the statutory concept of ‘character or appearance’ in the Planning (Listed Buildings and Conservation Areas) Act 1990.

This article originally appeared as ‘The secretary of state disagrees’ in the Institute of Historic Building Conservation’s (IHBC’s) Context 178, published in December 2023. It was written by Alexandra Fairclough, conservation officer for Cheshire East, a lecturer and a member of the IHBC legal panel. A former planning inspector, she was called to the bar in 2009, and before that was IHBC law and practice coordinator.

--Institute of Historic Building Conservation

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