Weighty matters
The High Court recently addressed a wide range of substantive and procedural issues in planning law in a combined judgment on two claims for statutory review. Robert Williams, Wayne Beglan and Olivia Davies look at the lessons to be learned.
In a combined judgment handed down on 7 August 2024 (Vistry Homes Ltd v SSLUHC and Fairfax Acquisitions Ltd v SSLUHC [2024] EWHC 2088), Holgate J addressed a smorgasbord of substantive and procedural planning issues, providing guidance intended to be taken up in future cases.
Weighing BNG (Vistry and Fairfax) – In neither case did the Inspector fall into the error committed by the Inspectors in the NRS Saredon and Weston Homes cases (the latter also handed down by Holgate J on 7 August 2024) of assuming that the requirement to provide 10% BNG (biodiversity net gain) introduced by the Environment Act 2021 applied to the appeal schemes (the requirement only applies to planning applications made on or after 12th February 2024). The Inspectors were entitled to refer to the future 10% legislative requirement as a benchmark to help calibrate the weight to be given to the benefit in each case.
Weighing Economic Benefits (Fairfax) – At least in circumstances where the economic benefits were generic (rather than scheme/site specific) the Inspector was entitled, when assessing what weight to afford to those benefits, to take into account (a) that the proposal was fundamentally contrary to national and local plan policies and (b) that matters of where in the Green Belt development should take place, and which would bring about the concomitant economic benefits, are matters for the local plan.
Previously Developed Land in the Green Belt (Vistry) – It was not unlawful for the Inspector, when applying the Very Special Circumstances balance, to give no weight to the appeal site’s PDL status. This was a judgment rationally open to him, and did not disclose a misinterpretation of national policy. Indeed, Holgate J went further and held that “if the VSC balance would otherwise weigh against the proposal, I do not see why the outcome should change simply because of the inclusion of the PDL factor as a benefit, when footnote 49 says that the policy support or the use of PDL does not apply if the scheme conflicts with another NPPF policy.” [119]
Curtilage (Vistry) – As always context is crucial: here the built development took up only 3.8% of the appeal site, with the remainder being green field. The Inspector treated the entire appeal site as PDL applying the agreed position on the extent of the curtilage. Although not an issue directly raised before the High Court (because planning permission had been refused), Holgate J was critical of the Inspector’s understanding and application of the concept of curtilage. He found that the Inspector’s conclusion that the entire appeal site fell within the curtilage of stable buildings was based on legally erroneous reasoning. And he reiterated that the core principle when identifying curtilage is that the land must be so intimately connected with the building as to lead to the conclusion that the land forms part and parcel of the building. The test is not whether the land and buildings form part of the same residential unit or whether there is a functional relationship between the building and land.
The risks of taking a bad point, even if agreed (Vistry) – One has to feel a little for the Inspector, who simply adopted the agreed position between the Appellant and LPA on the extent of the curtilage following concessions made in cross-examination. This underscores the risks of taking legally bad points before an inspector, even if the opposing witnesses have agreed to them. Had Vistry been granted planning permission, as Holgate J made clear, there would have been an obvious appeal point.
Can measures required by law or policy constitute a benefit (Vistry and Fairfax) – The Judge found that there was no legal principle to support the view that measures required by law or policy are incapable of amounting to benefits. Indeed, he went as far to say that he found it difficult to see how logically a decision maker could give no weight to the provision of 10% BNG simply because it was required by legislation.
Citation of previous Inspectors’ appeal decisions – Holgate J was very critical of the practice (which in our experience is becoming increasingly common) of referring to decisions of other Inspectors simply to identify the weight that has been given to particular benefits. As the Judge explained “Usually there is insufficient information to help determine true comparability. Understandably weights are not expressed in numerical terms. Inspectors will vary as to the term used and their scale of values may differ. Moreover, as the Fairfax Inspector pointed out, decision letters often do not explain why a particular weighting was adopted.” [160]
Robert Williams of Cornerstone Barristers appeared for the Secretary of State in both matters. Wayne Beglan and Olivia Davies appeared for Hertsmere Borough Council in the Fairfax matter.
