Judge rejects claim planning permission for project should have been granted as only way to remove infestation of Japanese knotweed on site

A property owner has lost a High Court case in which it argued that planning consent for a residential project should have been given by Broxtowe Borough Council since this was the only feasible route to financing clearance of Japanese knotweed, which infests the site.

HHJ Worster, sitting as a judge of the High Court, said in his judgment that an planning inspector had been entitled to conclude that other methods existed to remove the invasive plant.

Site owner NG8 2RJ brought the case against the Secretary of State for Housing, Communities and Local Government, and Broxtowe took no active role.

The claimant challenged the inspector’s decision to dismiss its appeal against Broxtowe’s refusal of consent to build two homes on the site at Sandy Lane, Bramcote and to create a publicly accessible woodland nature park once the weeds were removed.

HHJ Worster said: “The land is infested with Japanese knotweed and the essence of the claimant's case is that the only way to fund the eradication of this highly invasive plant is to develop the land and so generate sufficient profit to do the necessary work.”

NG8 2RJ argued the inspector erred in law by failing to give sufficient reasons for her decision and the evidential basis upon which it was made.

The claimant said the land is not saleable, grants will not be available and that doing nothing presented risks to the land and tits surroundings.

A Broxtowe officers’ report though recommended refusing the planning application as the land was part of a Green Infrastructure Asset, a Green Infrastructure Corridor, and a Prominent Area for Special Protection.

Broxtowe’s report said: “It should be noted that it is the legal responsibility of the landowner to ensure that a non-native invasive species does not ‘escape' from their land (that is, cause it to be grown outside of land they control). The site and wider area within the ownership of the applicant is infested with Japanese knotweed and it is acknowledged that the eradication of [it] would be a benefit to the ecology of the land as well as bringing peace of mind to nearby landowners.

“However, this could and should be managed outside of the planning system before it affects adjoining land.”

HHJ Worster said: “I conclude that the proposed development would conflict with the development plan taken as a whole and material considerations, including the National Planning Policy Framework, do not indicate that the appeal should be determined other than in accordance with the development plan.

“I also agree that the principal important issue in this case was whether the benefits of the development (including the eradication of Japanese knotweed) clearly outweighed the harm caused by the development.”

He said the inspector's approach to the decision had been “entirely consistent with a focus on determining that issue”.

It had been clear that eradication of the Japanese knotweed would be a benefit but the inspector had concluded that its removal and better management “is not entirely dependent on the proposal coming forward. I can see no sensible basis for criticising the expressed reasoning or its adequacy”, the judge said.

He said inspectors were not usually required to give ‘reasons for reasons’ and “if the inspector had to give reasons for all the issues in the detail the claimant contends was necessary for them to be adequate, the decision would become unworkably long”.

The claimant argued the inspector had to explain why the benefits which arose from the eradication of the Japanese knotweed did not trump or exceed the harm, and to do that she had to deal with the expert evidence that eradication was the only way forward, and what would happen if the situation was left as it was.

HHJ Worster said: “I do not agree. The submission poses the wrong question. The only way forward for what?

“The inspector was considering the harm and benefits of the proposed development. She was not providing an answer to the problem of Japanese knotweed on this land. The detail the claimant says was required is not required for the parties to understand the decision reached and the essential reasoning for it.”

Mark Smulian