- Planning Court
- 1 August 2022
- Lang J
- [2022] EWHC 2044 (Admin)
- [2022] PLSCS 129
Town and country planning – Planning permission – National Park – Developer applying for outline planning permission for mixed use development – Claimant local authority refusing application – Inspector appointed by the secretary of state allowing appeal – Claimant seeking statutory review – Whether inspector failing to take account of local plan policies – Whether inspector failing to have regard to statutory purpose of conserving and enhancing natural beauty of National Park – Application granted
The second defendant developer applied to the claimant local authority for outline planning permission for a mixed-use development on land designated as a green gap in the emerging Local Plan (eLP). The site was just under 50 acres and formed part of Chatsmore Farm, located north west of Goring Station, Goring-by-Sea, Worthing, West Sussex. It was an open field currently in agricultural use and lay outside the built-up area boundary in the Worthing Core Strategy 2011 (WCS) and the eLP.
It was bordered along its southern boundary by a railway line and was within the South Down National Park, which lay beyond the northern boundary of the farm. The claimant refused the application but an inspector appointed by the first defendant secretary of state allowed an appeal by the second defendant.
The claimant applied, pursuant to section 288 of the Town and Country Planning Act 1990, for a statutory review of that decision. The claimant contended, amongst other things, that the inspector erred: (i) in failing to take account of the conflict with policies SS1 and SS4 of the eLP; and/or failing to provide adequate reasons as to the assessment of the development against those policies or the weight to attribute to any conflict; and (ii) in his treatment of the impacts of the development on the National Park, specifically in failing to comply with his duty under section 11A of the National Parks and Access to Countryside Act 1949; and/or paragraph 176 of the National Planning Policy Framework (NPPF); and/or in failing to provide adequate reasons; and/or reaching an irrational conclusion regarding the impact of the development on the National Park.
Held: The application was granted.
(1) The defendants argued that policies SS1 (spatial strategy) and SS4 (development in the countryside) had not formed a significant part of the claimant’s case at the inquiry and that the emerging policies added nothing of substance to policy 13 of the WCS, to which the inspector gave full weight. However, policies SS1 and SS4 were not merely another layer of policy which continued the effect of policy 13. They were the product of a new balancing exercise, carried out in the context of the NPPF and taking account of current housing needs. The conflict with the eLP was a main issue at the inquiry, and it added a further dimension to the consideration of the spatial strategy in the adopted WCS.
In Simplex G E (Holdings) Ltd v Secretary of State for the Environment [1988] 3 PLR 25, the Court of Appeal approved the test that: Where the maker of the decision had taken into account an irrelevant factor, even though it might not be his dominant reason for the decision, the court should quash that decision unless it was clear that he would have reached the same conclusion in any event.
The inspector should have assessed the development against the emerging policies and determined the appropriate weight to attribute to them. It was not possible for the court to predict the inspector’s conclusions on such a multi-faceted issue so as to conclude that the outcome would necessarily have been the same. The Simplex test was not met: West Oxfordshire District Council v Secretary of State for Housing, Communities and Local Government [2018] EWHC 3065 (Admin) distinguished.
Accordingly, the inspector had failed to give any proper consideration to policies SS1 and SS4 of the claimant’s eLP which protected “countryside and undeveloped coast” outside the built-up area boundary. Overall, that was an error on the part of the inspector. Alternatively, the inspector failed to provide any, or any adequate, reasons in regard to the assessment of the development against policies SS1 and SS4, and the weight that he attributed to any conflict.
(2) It was clear from the decision letter that the inspector accepted the assessment in the Landscape and Visual Impact Assessment (LVIA), namely, that there would be a perceptible change to the view and the level of harm would be moderate adverse. He also added the words “and not significant”. Therefore, it would be irrational for him to conclude that there were no adverse effects at all. Further, the inconsistency between those two positions was not explained in the inspector’s reasons.
The inspector erred in law in failing to take into account his finding that “the level of harm would be moderate adverse and not significant” in the overall planning balance. As the NPPF policy required that great weight should be given to conserving and enhancing landscape and scenic beauty, any assessed harm should be weighed against the benefits of the proposed development in the overall planning balance. That approach was standard practice in planning decision-making. The inspector missed out that step. As a result, when conducting the overall planning balance, which was a crucial stage of the decision-making process, he failed to give any weight to the moderate adverse effects he had found, which was in breach of the policy requirement in paragraph 176 of the NPPF to give them “great weight”: Monkhill Ltd v Secretary of State for Housing, Communities and Local Government [2021] EWCA Civ 74, [2021] PTSR 1432; [2021] PLSCS 23.
(3) The inspector also failed properly to discharge his duty under section 11A of the 1949 Act since, when performing the planning balance exercise in relation to a proposed development which affected views from the National Park, he failed to have regard to the statutory purpose of conserving and enhancing the natural beauty of the National Park. Although he had assessed the impact on and level of harm to the National Park, in compliance with the duty under section 11A, he failed to discharge his duty properly, by omitting any consideration of the statutory purpose when conducting the overall planning balance.
Applying the Simplex test, the court could not safely conclude that, if the correct approach had been adopted, the outcome would necessarily have been the same.
Isabella Tafur and Daisy Noble (instructed by Sharpe Pritchard LLP) appeared for the claimant; Hugh Flanagan (instructed by the Government Legal Department) appeared for the first defendant; Paul Cairnes QC and James Corbet Burcher (instructed by Shoosmiths LLP) appeared for the second defendant.
Eileen O’Grady, barrister
