Court rules in favor of NRS Saredon Aggregates Limited due to Inspector's error on biodiversity net gain, providing insights on planning policies and very special circumstances.

Citation: [2023] EWHC 2795 (Admin)
Judgment on

Introduction

The High Court of Justice recently adjudicated on a planning and environmental case, NRS Saredon Aggregates Limited v The Secretary of State for Levelling Up, Housing and Communities & Anor, which delved into the complexities of statutory review pursuant to the Town and Country Planning Act 1990. This case provides valuable insights into the interpretation of planning policies within the development plan, the concept of ‘very special circumstances’ in the context of Green Belt development, and the prospective application of biodiversity net gain legislation.

Key Facts

The case centered around NRS Saredon Aggregates Limited’s (the Claimant) appeal against the Inspector’s decision to dismiss their application for planning permission for a sand and gravel quarry on grounds of preserving Green Belt openness. The crux of the case revolved around two grounds:

  1. The approach to assessing biodiversity net gain.
  2. Compliance with the development plan under section 38(6) of the Planning and Compulsory Purchase Act 2004.

The pivotal issues were whether the future provisions under the Environmental Act would apply retrospectively, and whether the Inspector properly assessed the development’s accordance with the whole development plan.

The legal principles hinging on this case integrate planning judicial review aspects, including:

  • Planning Judgement and Law Distinction: Recognized by Lord Hoffmann in Tesco Stores Ltd v Secretary of State for the Environment, this principle establishes that courts should differentiate between what constitutes a material consideration and the weight given to it, the former being a matter of law, and the latter a planning judgement.

  • Interpretation of Decision Letters: As outlined in Bloor Homes East Midlands Ltd and St Modwen Developments Ltd cases, decision letters should be interpreted in a non-hypercritical and contextual manner, considering the full document over minute dissections.

  • Development Plan Accordance: Echoed in City of Edinburgh Council and Tiviot Way Investments Ltd cases, the necessity for decision-makers to assess and conclude on whether a proposal accords with the development plan as a whole is crucial.

  • Single Policy Focus: The BDW Trading Ltd case elucidates that a single development plan policy can be decisive in some instances, especially if it directly relates to the critical issue at hand.

  • Very Special Circumstances: Involves assessing whether any considerations outweigh the harm to the Green Belt, with the need for such circumstances to clearly justify the development.

  • Biodiversity Net Gain Legislation: The prospective enactment under the Environment Act 2021 entails that planning permissions will mandate a requisite biodiversity value gain, a point of contention as to whether it had retrospective applicability in the current case.

Outcomes

Upon analyzing the legal principles and arguments, the court found:

  • Ground 1: The Inspector committed an error of law in reducing the weight attributed to the biodiversity net gain, mistakenly considering that the future legislative requirements would apply retrospectively. This resulted in the Decision being quashed.

  • Ground 2: The Inspector complied with his duty under section 38(6) by considering compliance with the development plan as a whole. This focus on MLP 27 was substantiated for determining Green Belt compliance, and thus this ground was unsuccessful.

Conclusion

The case aptly recognizes the balance between planning authority discretion and legal correctness in the interpretation of policy, especially in Green Belt matters and the conceptualization of ‘very special circumstances.’ For legal practitioners, NRS Saredon Aggregates Limited’s case reaffirms the need for clarity in planning decision-making and the importance of current legislative provisions over prospective ones, identifying the distinct realms of law and planning judgment within UK environmental and planning jurisprudence.

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