Khalid Ikram v Secretary of State for Housing, Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Lord Justice Singh,Lady Justice Andrews,Lord Justice Nugee |
| Judgment Date | 06 January 2021 |
| Neutral Citation | [2021] EWCA Civ 2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case Nos: C1/2019/1873 and C1/2019/1901 |
and
and
[2021] EWCA Civ 2
Lord Justice Singh
Lady Justice Andrews DBE
and
Lord Justice Nugee
Case Nos: C1/2019/1873 and C1/2019/1901
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Mrs Justice Lang
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Robert Williams (instructed by the Government Legal Department) for the First Appellant
Ms Saira Kabir Sheikh QC (instructed by James Smith (Planning Law Services) Ltd) for the Second-Fourth Appellants
Mr Charles Streeten (instructed by Richard Buxton Solicitors) for the Respondent
Hearing dates: 1 and 2 December 2020
Approved Judgment
Introduction
These are appeals against the decision of Lang J dated 17 July 2019, by which she granted (i) a statutory application to quash the grant of planning permission by an Inspector appointed by the Secretary of State, for a change of use of land at 852A-C, Harrow Road, Wembley (“the Appeal Site”), from a mixed use as a builders' yard and residential to a mixed use as a place of worship and residential; and (ii) a claim for judicial review of the decision by the Inspector to quash an enforcement notice which had been issued by the local planning authority, the London Borough of Brent (“the Council”).
The Council is the First Interested Party in these proceedings but has played no active part in these appeals. The Secretary of State, who was the Defendant below, is the First Appellant. The Second, Third and Fourth Appellants were interested parties below: they were the beneficiaries of the grant of planning permission by the Inspector. Mr Ikram, who was the Claimant below is the Respondent before this Court.
The decision by the Inspector to quash the enforcement notice could only be challenged by way of judicial review, whereas his grant of planning permission had to be challenged by way of a statutory application under section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”). That is why there were two sets of proceedings in the High Court but the substantive issues are the same.
Permission to appeal to this Court in both sets of proceedings was granted by Lewison LJ in an order sealed on 30 September 2019.
At the hearing before us we heard submissions from Mr Robert Williams for the Secretary of State; Ms Saira Kabir Sheikh QC for the other Appellants; and Mr Charles Streeten for the Respondent. I am grateful to them and their teams for the assistance they have given the Court.
Factual background
On 19 March 2019, the Council granted retrospective planning permission for Nos 856 and 858, Harrow Road, to be used as a place of worship and community centre. The premises had previously been used for residential purposes and are owned by International Islamic Link (“IIL”). IIL is an unincorporated charity, and the land is registered in the names of four individuals, including the Second Appellant, Mr Hussain, as trustees of the charity. The planning permission was granted subject to conditions to reduce the impact on the surrounding area.
On 13 September 2011, the ground floor of the premises was certified as a place of worship under the Places of Worship Registration Act 1855; however, it is primarily used as a community centre.
The Respondent lives at 854 Harrow Road, in between the above premises and the Appeal Site.
IIL purchased the Appeal Site in 2012. It undertook construction work and changed the use of the property, in breach of planning controls. The ground floor was established as a Mosque. Planning permission for the construction changes and the material change of use was applied for retrospectively on 24 September 2012. Planning permission was refused by the Council on 9 May 2017.
On 12 June 2017, an enforcement notice was issued by the Council. It alleged, among other things, a breach of planning controls by a material change of use to a mixed use as residential and a community centre/place of worship.
There was a successful appeal against the enforcement notice by Mr Hussain, acting on behalf of IIL. The Inspector's decision was dated 1 November 2018. The main ground of appeal against the enforcement notice was under ground (a) in section 174 of the 1990 Act, that planning permission ought to be granted for the development. Under this ground, IIL submitted that planning permission should be granted to use the Mosque for twice daily prayers with a maximum attendance of 30 people. The Inspector referred to this as “the Limited Use of the Mosque”, at para. 9 of his decision. Planning permission was granted by the Inspector subject to several conditions, to which I will return.
Mr Ikram applied to the High Court to quash the Inspector's decision. Ouseley J granted permission on 31 January 2019 and pointed out what appeared to be a drafting error in condition 1 attached to the planning permission which the Inspector had granted. Condition 1 said: “The Mosque shall only be used as a place of worship.” Ouseley J thought that the condition should have read “only the Mosque shall be used as a place of worship”.
In making his order Ouseley J said:
“The claims are plainly arguable. It seems to me that the interpretation of condition 1 is at the core of all the points. If the Claimant is wrong and the use of the whole appeal site is restricted to the use of the mosque for 30 people, then many of the other issues may be resolved. However, I feel bound to say that if the Defendant had to show that his interpretation was arguable, I would refuse permission. The ‘Appeal Site’ is the whole site, the ‘mosque’ is a building. The whole site seems to have permission, without restriction, save in the mosque, for the mixed use including as a place of worship. Condition 1 on its natural meaning seems to control the mosque only; there would be, contrary to how the case seems to have been presented, no control on what appears to be the admitted and objectionable use of the rest of the appeal site, where planning permission has on the face of it been granted. Thirty people at any one time in the mosque permits a very large turnover of parking on the site, and overspill facilities. What does the Defendant say is permitted or prohibited there and by what wording?”
In response to those observations, IIL by its trustees entered into a unilateral undertaking, pursuant to section 106 of the 1990 Act, on 18 April 2019. The undertaking contained planning obligations, including these at clause 3:
“3.1.1 not to allow any part of the Land other than the Mosque to be used for the purposes of religious worship pursuant to the Planning Permission; and
3.1.2 not to permit the Mosque to be attended by more than 30 (thirty) people at any one time for the purposes of religious worship in accordance with condition 3 on the Planning Permission”.
The Inspector's decision
The Inspector, Mr Tim Belcher, gave his decision after a hearing and site visit which took place on 26 September 2018.
In his decision dated 1 November 2018, he set out the background, at paras. 1–4, and procedural matters, at paras. 5–13. Of particular importance is the way in which he defined the scope of the planning application deemed to be before him under ground (a), at para. 9:
“At the Hearing the Appellant [Mr Hussain] confirmed that he was seeking planning permission through the Ground (a) appeal to use the Mosque for twice daily prayers with a maximum attendance of 30 people. I will refer to this as ‘the Limited Use of the Mosque’.”
The Inspector then set out his reasons for allowing the appeal on ground (a) and for granting the deemed planning application, at paras. 22–57. He referred to relevant planning policies, at paras. 22–24. He then considered the parking and highway safety issues, at paras. 25–26; whether sufficient on-site car parking spaces were available for the Limited Use of the Mosque, at paras. 27–33; whether the Limited Use of the Mosque would result in the interference with the free flow of traffic along Harrow Road or other highway safety issues, at paras. 34–36; whether the Limited Use of the Mosque and the operational development carried out at the appeal site materially harmed the character and appearance of the area, at paras. 37–47; whether the Limited Use of the Mosque would harm the living conditions of nearby residential occupiers, having particular regard to noise, disturbance and lighting, at paras. 48–53; and other matters, for example the fact that the appeal site was next to a public open space, at paras. 54–57.
His overall conclusions were set out at paras. 58–60. He concluded that the appeal should succeed on ground (b) to the limited extent that the reference in the enforcement notice to use of the appeal site as a community centre had to be deleted because it was incorrect. More importantly, he concluded that the appeal should succeed on ground (a) and planning permission should be granted. The appeal on ground (g) – that more time should be given to comply with the enforcement notice – therefore did not need to be considered.
At para. 61 the Inspector set out his formal decision. In particular he granted planning permission on the deemed application under ...
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