Key Facts
- •Statutory review of an Inspector's decision dismissing an appeal against refusal of planning permission for a sand and gravel quarry.
- •Two grounds of challenge: Inspector's approach to biodiversity net gain and failure to comply with section 70(2) of the 1990 Act and section 38(6) of the 2004 Act.
- •Proposed quarry at Lea Castle Farm, Kidderminster, with significant biodiversity net gain (39.31%BU for habitats and 107.51%HU for hedgerows).
- •Development within the Green Belt and North West Worcestershire Strategic Corridor.
- •Main dispute centered on whether benefits outweighed harm to Green Belt openness, constituting 'very special circumstances'.
- •Inspector dismissed appeal, finding harm to Green Belt openness not clearly outweighed by other considerations.
Legal Principles
Questions of planning judgment are for the Inspector; interpretation of law and material considerations are for the court.
Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759
Decision Letter interpretation follows seven principles: benevolent reading, avoiding hypercritical analysis, reading as a whole, considering inquiry context and party knowledge.
Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin); St Modwen Developments Ltd v Secretary of State for Communities and Local Government [2017] EWCA Civ 1643
Section 38(6) duty requires regard to the development plan as a whole, prioritizing it unless material considerations indicate otherwise. Assessment of compliance involves considering all relevant policies and weighing material considerations.
City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447; Tiviot Way Investments Ltd v Secretary of State for Communities and Local Government [2015] EWHC 2489 (Admin)
In assessing the impact of an error, the court considers materiality and whether the decision would have been the same without the error.
Simplex GE Holdings Ltd v Secretary of State for the Environment [2017] PTSR 1041
Outcomes
Claim succeeds on ground 1 (Inspector's approach to biodiversity net gain), Decision quashed.
Inspector erred in law by reducing the weight of biodiversity net gain based on a mistaken belief about the retrospective application of forthcoming legislation.
Claim fails on ground 2 (failure to comply with section 38(6)).
Inspector properly considered the development plan as a whole, focusing on the key Green Belt policy (MLP 27) as appropriate given the central dispute.