Town and country planning – Planning permission – Material consideration – Second defendant local authority refusing planning permission for sand and gravel quarry – Inspector appointed by first defendant secretary of state dismissing appeal – Claimant applying for statutory review – Whether inspector erring in law in affording only moderate weight to biodiversity net gain of proposed development – Application granted
The claimant was engaged in the extraction of minerals and applied for planning permission for a sand and gravel quarry on land at Lea Castle Farm, Broadwaters, Kidderminster. A total of approximately 3m tonnes of sand and gravel were to be extracted over 10 years. The whole site covered approximately 46ha but the mineral extraction was to be from two areas within the site: of approximately 12.5ha and 13.5ha respectively. The interested party was a group of local residents opposed to the proposed development.
During the extraction and afterwards the site was to be restored using inert material imported to the site together with material from the site. The restoration would include new agricultural parkland, woodland and hedgerows together with footpaths and bridleways.
The second defendant local authority refused the application. The claimant appealed under section 78 of the Town and Country Planning Act 1990 and an inspector appointed by the first defendant secretary of state held an inquiry. It was agreed at the inquiry that the scheme would deliver over 39% biodiversity net gain. However, the inspector afforded only moderate weight to that on the basis that some of the BNG that would be achieved was required to meet national policy and future legislative requirements mitigate the environmental impact of the development. The claimant’s appeal was dismissed.
The claimant applied for statutory review under section 288 of the 1990 Act contending, among other things, that the inspector erred in law in his approach to the weight to be attached to the BNG.
Held: The application was granted.
(1) There was a clear distinction between the question of whether something was a material consideration and the weight it should be given. The former was a question of law and the latter was a question of planning judgment which was entirely a matter for the planning authority. If the inspector’s assessment of the weight to be given to the BNG was based on an incorrect view of the law, or involved taking account of a matter which was not properly a material consideration, that would have been an error of law causing him to exercise his planning judgment on an incorrect basis.
The decision letter had to be read benevolently avoiding hypercritical analysis and excessive legalism. It was to be read as a whole and not subjected to laborious dissection. Moreover, it had to be read in context with important aspects of that context being the way in which matters were approached at the inquiry and the fact that the letter was addressed to parties who were informed about the history of and the issues in contention in relation to the relevant application: Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin); [2017] PTSR 1283 and St Modwen Developments Ltd v Secretary of State for Communities and Local Government [2017] EWCA Civ 1643; [2017] PLSCS 196; [2018] PTSR 746 considered.
(2) In the present case, reflecting on the language used by the inspector and in the light of the principles which governed the court’s approach to the interpretation of the decision letter, its meaning and effect was that the inspector noted the extent of the BNG but then decided that the weight to be attributed to that gain was to be reduced because some of the gain would be needed anyway in respect of the development at the site by reason of the future legislative requirements.
The effect of that interpretation was that, when assessing the weight to be attributed to the BNG for the purposes of assessing whether there were very special circumstances outweighing the harm to the openness of the green belt, the inspector reduced that weight on the basis of a mistaken view as to the law. He did so believing, incorrectly, that some of the net gain would be required in any event by reason of the forthcoming legislation. That was an error of law and meant that the inspector exercised his planning judgment as to the weight to be given to that material consideration (namely the net gain) on a basis which was wrong in law. That error was material and the court could not be satisfied that the decision would necessarily have been the same but for the error.
(3) The inspector was engaged in assessing whether the benefits of the proposed development were such as to amount to very special circumstances and to outweigh the harm caused to the openness of the green belt. The inspector concluded that the benefits did not have that effect but said that the point was “very finely balanced”. In that exercise, an error causing the inspector to reduce the weight to be attached to a particular benefit on a false basis was clearly material.
The inspector was engaged in an exercise of judgment and not one of arithmetical calculation. There was no way of knowing the extent to which the inspector reduced the weight to be attached to the benefit of the BNG. It could not be known whether, but for the error, he would have said that great weight should be given to that factor or that he would have given it only marginally more than the moderate weight which he in fact accorded to it: Sefton Metropolitan Borough Council v Secretary of State for Housing, Communities, and Local Government [2021] EWHC 1082 (Admin); [2021] PLSCS 89; [2021] PTSR 1662 considered.
(4) Therefore, the court could not know whether the result would have been the same if the inspector had not reduced the weight he attached to the BNG. The inspector’s assessment was that the question was very finely balanced. It might well be that the ultimate result would have been the same, but the court could not say that it would necessarily have been the same nor exclude the possibility that the outcome would have been different. It followed that the decision fell to be quashed.
Jenny Wigley KC (instructed by Newhall Solicitors LLP) appeared for the claimant; Rose Grogan (instructed by Government Legal Department) appeared for the first defendant; Sarah Clover (instructed by Legal Governance Worcestershire County Council) appeared for the second defendant; Sioned Davies (instructed by MFG Solicitors LLP) appeared for the interested party.
Eileen O’Grady, barrister
Click here to read a transcript of NRS Saredon Aggregates Ltd v Secretary of State for Levelling Up, Housing and Communities and another
