Vistry Homes Ltd v Secretary of State for Levelling Up, Housing and Communities

Hearing dates: 9–10 July 2024

Approved Judgment

This judgment was handed down remotely at 16.00 pm on 07/08/2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

These two claims for statutory review brought under s.288 of the Town and Country Planning Act 1990 (“the TCPA 1990”) concern decisions by Inspectors on planning appeals relating to large residential schemes in the Green Belt. It was common ground that each constituted “inappropriate development” for the purposes of Green Belt policy in the National Planning Policy Framework (“the NPPF”).

Accordingly, each development was, by definition, harmful to the Green Belt and could not be approved unless “very special circumstances” (“VSC”) existed. That is, the harm to the Green Belt by reason of inappropriateness and any other harm resulting from the proposal, had to be “clearly outweighed” by the other material considerations (paras. 152 and 153 of the NPPF):

“152. Inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.

153. When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. ‘Very special circumstances’ will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm resulting from the proposal, is clearly outweighed by other considerations.”

In each case the Inspector found that substantial weight should be given to the harm that would be caused to the Green Belt, that harm would also be caused to the local landscape and, in one appeal, other matters.

Each proposed development is located in a district, the City of St. Albans in one case and Hertsmere Borough in the other, which largely falls within the Green Belt and where there have been longstanding issues with the local planning authority (“the LPA”) identifying an adequate supply of housing land in accordance with the NPPF. Therefore, the Inspectors in each case treated the contribution which each scheme would make to the provision of general market housing and affordable housing as benefits attracting substantial weight in the “very special circumstances” balance, weighing against the harm in the other side of the balance.

Thus far, the claimants do not challenge any part of the respective decision letters.

In each case the Inspector went on to assess how much weight to give other benefits, before striking the overall planning balance. Each claimant seeks to challenge the way in which the Inspector dealt with just two of the benefits. In the claim brought by Vistry Homes Limited (“Vistry”) the grounds of challenge relate to:

(i) The development of “previously developed land” (“PDL”) as a benefit (para. 123 of the NPPF); and

(ii) The provision of a net gain in biodiversity (“BNG”) as a benefit (para. 180(d) of the NPPF).

In the claim brought by Fairfax Acquisitions Limited (“Fairfax”) the grounds of challenge relate to:

(i) The provision of economic benefits from the construction and occupation of the proposed dwellings (para. 85 of the NPPF); and

(ii) The provision of BNG as a benefit (para. 180(d) of the NPPF).

The BNG issue is common to both cases.

Neither claimant alleges that the Inspector in its case failed to take into account the relevant benefits. Instead, each complaint relates to the weight given by the Inspectors to the relative benefits.

For that reason it is important to recall what was said by Lord Hoffmann in Tesco Stores Limited v Secretary of State for the Environment[1995] 1 WLR 759 at p.780 F-H:

“The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority. Provided that the planning authority has regard to all material considerations, it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision-making process.

This distinction between whether something is a material consideration and the weight which it should be given is only one aspect of a fundamental principle of British planning law, namely that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State.”

A challenge to an Inspector's decision on matters of weight would not appear to be promising. Furthermore, in these cases the benefits in question were not the main issues on which the appeals were contested. Indeed, the parties said rather little about the benefits. Accordingly, it would not be surprising to find that the Inspectors' reasoning was correspondingly succinct. In one instance Fairfax even seeks to criticise an approach taken by the Inspector which was common ground between the parties at the public inquiry.

We should also not lose sight of two facts. First, the extent of the difference between the weights applied to the benefits was not very great. The weight which the claimants asked the Inspectors to place on each of the benefits the subject of the present claims was no more than “significant”. The Inspector gave moderate or neutral weight to the two benefits in the Vistry appeal and limited weight to the two benefits in the Fairfax appeal. Second, the decisions attached much greater weight to other, self-evidently important subjects, such as harm to the Green Belt, or the provision of affordable housing.

The general principles upon which a statutory review under s.288 is conducted were summarised in St. Modwen Developments Limited v Secretary of State for Communities and Local Government [2018] PTSR 746 at [6] – [7].

The claimants seek to challenge the Inspector's conclusions on weight by a number of routes depending upon which finding is being criticised. First, it is said that the finding is flawed because it is based upon a misinterpretation of the NPPF. Here it is necessary to distinguish interpretation from application of policy (see e.g. East Staffordshire Borough Council v Secretary of State for Communities and Local Government[2018] PTSR 88 [8]–[9]; Gladman Developments Limited v Secretary of State for Housing, Communities and Local Government [2021] PTSR 1450 at [32]). Normally, a party raising such an argument should at least identify (i) the policy wording said to have been misinterpreted, (ii) the interpretation of that language adopted by the decision-maker and (iii) how that interpretation departs from the correct reading of the policy ( Trustees of Barker Mill Estates v Secretary of State for Communities and Local Government [2017] PTSR 408 at [83]).

Second, it is said that the application of the NPPF by the Inspector was irrational. Here counsel is using the term in the second sense identified by the Divisional Court in R (Law Society) v Lord Chancellor[2019] 1 WLR 1649 at [98], namely a demonstrable flaw in the reasoning leading to a conclusion – significant reliance upon an irrelevant consideration, or absence of evidence to support an important step in the reasoning, or “a serious logical or methodological error” in the reasoning (approved by the Supreme Court in R (Finch) v Surrey County Council[2024] UKSC 20 at [56]).

Third, it is said that the reasoning on particular conclusions was legally inadequate.

In order to provide the context for the grounds of challenge, it is necessary to summarise the contents of each Inspector's decision letter in some detail. This exercise also reveals the care and skill with which each Inspector carried out his task. I will then address the grounds of challenge in the following order:

(i) Use of PDL (Vistry);

(ii) Economic benefits (Fairfax);

(iii) BNG (Vistry and Fairfax)

The hearings of the two claims took place one after the other, but the parties agreed that the court may take into account written and oral submissions and materials in both cases when determining each claim. I wish to express my gratitude for the helpful written and oral submissions from all counsel and for the...