Council wins High Court battle over decision of planning inspector on infrastructure contribution

Mr Justice Kimblin found in the council’s favour on most grounds it argued against the Secretary of State For Housing, Communities and Local Government and developer Peel NRE.

Peel had applied in March 2022 for outline planning permission for a development of general industry and storage and distribution at Manchester Road, Carrington.

The site is within an area allocated for a major strategic development in a joint development plan document named Places for Everyone (PfE) but was refused by the council as Peel declined to contribute towards infrastructure.

Peel then successfully appealed as the masterplan governing such payments did not yet exist and was only a work in progress.

The inspector found the contribution sought by the council would not be fairly and reasonably related to the development assessed alone and so no contribution to the infrastructure costs associated with the whole development would be required.

Kimblin J divided the various grounds argued into three ’issues’.

The first was whether the inspector correctly understood the development plan policies in PfE in the context of there being no masterplan.

If he did not, did that lead to the logical flaw of only asking what the contribution should be rather than whether there should be one?

Further issues concerned whether the inspector applied a different and incorrect test by asking himself whether the highways impacts alone would be counted as severe, as in paragraph 116 of the National Planning Policy Framework (NPPF), and did the inspector fail to identify the weight to attach to the breach of the policy?

Kimblin J said Trafford’s argument was that even without a masterplan, decision makers had to decide what the proportionate contribution should be, not whether there must be one.

Trafford contended the inspector misunderstood its policy and then failed to test the council's proposed contribution against that starting point.

It said he instead applied a different and incorrect test by asking himself whether the highways impacts of the proposal would be severe, and missed out the consequences of consenting the application in advance of the masterplan but without a proportionate contribution.

Trafford further said the inspector’s decision was irrational because it showed a logical flaw in decision making as the inspector only asked himself what the contribution should be, not whether there should be one.

The Secretary of State contended that in the absence of justification for the contribution there was no obstacle to granting permission and that absent a masterplan, the council’s policy has no free-standing requirement for proportionate contributions.

Kimblin J said: “The inspector addressed the amount contended for by the council without then addressing the contingent issue of whether there should be a contribution at all.

“In my judgment, the inspector was bound to address that further issue by reason of the development plan policies.”

He said policies seeking to distribute the costs of necessary infrastructure among the component sites and landowners existed even without the masterplan.

The judge explained: “In my judgment, the policy of proportionate contribution had to be grappled with in the decision.

“It was not straightforward for either of the parties nor for the inspector in the absence of the masterplan, but proportionate contribution is nevertheless a plain, prominent and clear aspect of the development plan, and it is fundamental to its purpose.”

Kimblin J said the inspector made no findings on viability because he rejected Trafford’s calculation and justification for the sum it sought.

“However, the fact that he stopped at that point in his reasoning indicates that he did not understand the development plan properly,” he said.

“He did not examine the effect of the grant of permission without a proportionate contribution to infrastructure which the whole allocation, as the development plan required. That was a misunderstanding of the development plan.”

This had not been rational “in the sense that it omits a consideration which is evidently material, absence of which leaves a critical gap”.

Kimblin J found for the Secretary of State on two grounds but for Trafford on the remainder and so quashed the decision.

Mark Smulian