Town and country planning – Planning permission – National Park – Appellant developer applying for outline planning permission for mixed use development – Respondent local authority refusing application – Planning inspector allowing appeal – Respondent applying for statutory review – High Court granting application – Appellant appealing – Whether inspector failing to deal with conflict with draft strategic policies in emerging local plan – Whether inspector misapplying government policy affecting setting of national park – Appeal dismissed
The appellant developer applied to the respondent local authority for outline planning permission for a mixed-use development including 475 houses on land designated as a green gap in the emerging local plan. The site was 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 emerging local plan.
It was bordered along its southern boundary by a railway line and was within the South Down National Park. The respondent refused the application but an inspector appointed by the secretary of state allowed an appeal by the appellant under section 78 of the Town and Country Planning Act 1990.
The High Court granted the respondent’s application for statutory review of that decision. The Judge held that having found that there would be a “moderate adverse” impact on particular views from the National Park, it would be irrational for the inspector to conclude that there would be no adverse effect at all on the National Park. The harm should have been attributed great weight in accordance with paragraph 176 of the National Planning Policy Framework (NPPF) in the overall planning balance. Accordingly, the inspector had failed to give any weight to the moderate adverse effects to the setting of the National Park: [2022] EWHC 2044 (Admin); [2022] PLSCS 129. The appellant appealed.
Held: The appeal was dismissed.
(1) There was no real doubt about the lawfulness of the inspector’s approach to the draft strategic policies of the emerging local plan on which the respondent relied. He clearly took those policies into account, gave weight to the proposal’s conflict with them, and provided proper reasons for his relevant conclusions which showed a reasonable and lawful exercise of planning judgment on the evidence and submissions he heard.
(2) The inspector’s reasons fell short of what was required in law in considering the proposed development’s effect on the setting of the National Park. To approach the issue lawfully, the inspector had to understand the policy in paragraph 176 of the NPPF correctly. To misunderstand the policy would be an error of law. While the court would not interfere with an inspector’s application of a planning policy, which was a matter of planning judgment, it would require the inspector to undertake that exercise based on a legally correct understanding of what the policy meant and required: Suffolk Coastal District Council v Secretary of State for Communities and Local Government [2017] UKSC 37; [2017] EGLR 27 applied.
(3) In Bayliss v Secretary of State for Communities and Local Government [2014] EWCA Civ 347 (a case concerning paragraph 115 of the original version of the NPPF, which referred to the concept of “great weight” in similar terms to paragraph 176 of the present version) the court held that giving “great weight” to harm to a National Park did not compel a decision-maker to give it any specific level of weight in a particular case. There was a range of weight that could be attributed to the harm, as a matter of planning judgment. Applying the policy in a particular case would require the decision-maker to consider the appropriate degree of weight to give to the level of harm he found, conscious of the government’s policy that “great weight” was to be given to the conservation and enhancement of landscape and scenic beauty in areas with the highest status of protection.
The requirement to give “great weight” to conserving and enhancing landscape and scenic beauty “in” a National Park extended to proposals for development within its setting, and not only to development on sites within it. The policy in paragraph 176 distinguished between development inside and outside a National Park. But both were to be considered under the “great weight” principle.
(4) The crucial question here was not the meaning of the words “great weight” in the first sentence of paragraph 176 of the NPPF, taken in their own context. It was whether, on a fair reading of the inspector’s decision letter, his assessment of the likely effects of the proposed development on the setting of the National Park, in which he appeared to have accepted that those effects would be harmful, showed how he gave “great weight” to the conservation and enhancement of the landscape and scenic beauty, as the policy in paragraph 176 effectively required. The inspector was not obliged to use the words “great weight” or even to refer to paragraph 176 by name. But his assessment had to demonstrate that he had approached the question of harm with the “great weight” principle in mind.
There was no doubt that the inspector found some level of harm to the setting of the National Park. However, there was no indication that he gave it such weight as the “great weight” principle required, or what weight, if any, that was.
The court did not have to go as far as the judge and find that the inspector’s conclusion was irrational. It was enough to conclude that the reasons he gave failed to meet the standard required. The inspector’s reasons were defective. They left a substantial doubt about the lawfulness of his approach to one of the principal issues he had to resolve. That was enough to require his decision to be set aside.
(5) The court was unable to conclude that relief should be withheld based on the principle in Simplex that the court should quash that decision unless it was clear that he would have reached the same conclusion in any event. It was impossible to say that if the inspector had not erred in the way he did his decision would necessarily have been the same: Simplex G E (Holdings) Ltd v Secretary of State for the Environment [1988] 3 PLR 25 applied.
Paul Cairnes KC and James Corbet Burcher (instructed by Shoosmiths LLP) appeared for the Appellant; Isabella Tafur and Daisy Noble (instructed by Sharpe Pritchard LLP) appeared for the respondent; The interested party did not appear and was not represented.
Eileen O’Grady, barrister
Click here to read a transcript of Persimmon Homes (Thames Valley) Ltd v Worthing Borough Council
