Holystone Civil Engineering Limited v Secretary of State for Levelling Up, Housing and Communities & Anor
[2023] EWHC 1739 (Admin)
NRS Saredon Aggregates Limited v The Secretary of State for Levelling Up, Housing and Communities & Anor
16 November 2023
[2023] EWHC 2795 (Admin)
High Court
A company wanted to build a gravel quarry but the council refused planning permission. An inspector agreed with the council. The company challenged the inspector's decision in court, arguing the inspector didn't correctly understand the rules about the environmental benefits of the quarry and didn't properly consider all the factors. The court agreed the inspector got one of the rules wrong but disagreed that he didn't consider everything else properly. Therefore, the court overturned the inspector's decision on one point, meaning the whole decision had to be re-done.
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.
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