Town and country planning – Planning permission – Section 62A of Town and Country Planning Act 1990 – Claimant applying direct to secretary of state for planning permission for residential development – Inspector refusing permission – Claimant applying for statutory review – Whether inspector erring in approach to biodiversity net gains (BNG) attributable to development – Whether inspector wrongly having regard to percentage of BNG not yet in force – Whether decision irrational – Application granted
In June 2023, the claimant applied for planning permission for the erection of 96 dwellings, parking, landscaping and public open space, on a site in Takeley, the largest village in Uttlesford District.
Section 62A (1) and (2) of the Town and Country Planning Act 1990 enabled an applicant to submit their application to the secretary of state instead of the local planning authority if that authority was designated as not adequately performing its function of determining applications for the purposes of section 62B. In February 2022, the first defendant secretary of state issued a designation notice in respect of the second defendant planning authority in relation to major development applications.
Accordingly, the claimant applied directly to the first defendant under section 62A. An inspector appointed by the first defendant weighed the benefits of the proposed development against its harm having regard to paragraph 174(d) of the National Planning Policy Framework which stated that planning policies and decisions should contribute to and enhance the natural and local environment by minimising impacts on and providing biodiversity net gains (BNG).
The inspector decided the proposal would secure a BNG but gave less weight to BNG below 10% than he otherwise would have done because it did not meet the new legislative requirement to be introduced with effect from 12 February 2024 pursuant to section 90A of and schedule 7A to the 1990 Act, requiring a net gain of 10% attributable to the development in order for the BNG objective to be met. The application was refused. The claimant applied for statutory review.
Held: The application was granted.
(1) Paragraph 174 of the NPPF encouraged the provision of BNG but it did not set a numerical target as a requirement for the grant of planning permission. The second defendant’s local plan did not set any targets or requirements for requiring development proposals to deliver BNG.
The requirement to provide a 10% BNG secured by condition on the grant of planning permission was brought into force on 12 February 2024. But it did not apply to a planning permission granted in relation to an application made before that date (regulations 2 and 3 of The Environment Act 2021 (Commencement No 8 and Transitional Provisions) Regulations 2024. Accordingly, the new legislative requirement could not have applied to any planning permission granted on the claimant’s section 62A application lodged on 12 June 2023.
(2) By regulation 3 of the 2024 Regulations, parliament had enacted an explicit transitional provision stating that the BNG planning condition in paragraph 13 of schedule 7A did not apply where an application for planning permission for relevant development was made before 12 February 2024.
In any event, the decision letter was flawed because the inspector did not say, as he was obliged to do, what was the effect of treating the watercourse BNG as being “clearly against” the direction of travel of the new legislation. That could have meant that he considered it to be a neutral factor, or that he gave this type of BNG some weight. The decision letter did not state which it was and, if the latter, how much weight. So, on any view, the reasons given were legally inadequate. The defendant did not suggest that, in those circumstances, the decision letter should not be quashed: Save Britain’s Heritage v Number 1 Poultry [1991] 1 WLR 153; [1991] 3 PLR 17 and South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953 considered.
(3) In so far as the inspector assessed BNG in excess of 10% (for habitats and hedgerows) as having “only” moderate weight, his decision letter was deficient in failing to explain why he had ascribed less weight to those gains than he would otherwise have done. Overall, there were clear and significant errors of law in the inspector’s treatment of BNG. Further, given the poor drafting of that part of the decision letter and the absence of a logical chain of reasoning, the decision on that matter was irrational or, alternatively, legally inadequate.
Accordingly, the inspector erred in law by reducing the weight to be given to the BNG estimated for the proposal by taking into account a future legal requirement for BNG (introduced by the Environment Act 2021 with effect from 12 February 2024). That involved giving the new legislation retrospective effect, contrary to the transitional provision in the 2024 Regulations: NRS Saredon Aggregates Ltd v Secretary of State for Levelling Up, Housing and Communities [2023] EWHC 2795 (Admin); [2023] PLSCS 192; [2024] Env LR 18 followed. R (Cala Homes (South) Ltd) v Secretary of State for Communities and Local Government [2011] EWCA Civ 639; [2011] 2 EGLR 75 considered.
(4) There was a legal obligation to give reasons for the decision, whether it was to grant or to refuse planning permission. Consistency in decision-making was important to developers, local planning authorities and the public because it served to maintain public confidence in the operation of the development control system. Previous planning decisions were capable of being material considerations in the determination of a subsequent planning application or appeal. It did not follow that alike cases had to be decided alike. A subsequent decision-maker always had to exercise his own judgment. He was free, upon consideration, to disagree with the judgment of another. But before doing so he had to have regard to the importance of consistency and give reasons for his departure from, or disagreement with, the previous decision. However, if an earlier decision was distinguishable in some relevant respect it would not usually be a material consideration because of the consistency principle: North Wiltshire District Council v Secretary of State for the Environment [1992] 3 PLR 113; (1992) 65 P & CR 137 applied.
In breach of the principles in North Wiltshire, the inspector reached findings inconsistent with those of a previous inspector in relation the same site, without complying with his obligation to give legally adequate reasons for differing from that inspector.
(5) The inspector failed to take into account an obviously material consideration. It could not be said that, absent the error, the inspector would inevitably have reached the same decision on the section 62A application. That conclusion could not properly be drawn from the decision letter itself: Simplex GE (Holdings) Ltd v Secretary of State for the Environment [1988] 3 PLR 25; [2017] PTSR 1041 considered.
Accordingly, the section 62A application would have to be redetermined. A different inspector had to hold a fresh hearing and redetermine the application.
James Maurici KC and Joel Semakula (instructed by Winckworth Sherwood LLP) appeared for the claimant; Estelle Dehon KC and Nina Pindham (instructed by Government Legal Department) appeared for the first defendant; The second defendant did not appear and was not represented.
Eileen O’Grady, barrister
