Persimmon Homes (Thames Valley) Ltd v Worthing Borough Council [2023] EWCA Civ 762

Persimmon Homes had appealed against a High Court decision which found that an inspector’s grant of planning permission for a 475-dwelling development within The South Downs National Park was unlawful.

The Court of Appeal examined whether the inspector erred in considering local and national planning policy. Contrary to the High Court, the Court found the inspector correctly considered the conflict with the emerging local plan’s draft policies. However, ambiguity was found in the inspector’s evaluation of the development’s impact on the National Park, casting doubt on whether he had lawfully applied national planning policy.

Persimmon Homes needed to succeed on both grounds for the appeal to be allowed, and therefore the appeal was unsuccessful.

Background

The inspector had allowed Persimmon’s appeal against Worthing Borough Council’s refusal of outline planning permission for a mixed-use development including 475 dwellings on agricultural land within the setting of The South Downs National Park.

The council refused planning permission in March 2021, prompting Persimmon to lodge an appeal under section 78 of the Town and Country Planning Act 1990. The inspector held an inquiry into that appeal over eight days in January 2022 and his decision was published the following month. Worthing Borough Council challenged the inspector’s decision under section 288 of the same act and were successful in the High Court.

Issues for the Court of Appeal to Consider

Originally, there were four grounds of challenge. Mrs Justice Lang in the High Court rejected grounds 1 and 3 but upheld grounds 2 and 4.

Ground 2 was that the inspector failed to take into account the proposal’s conflict with two emerging policies in the Submission Draft Worthing Local Plan, or to provide adequate reasons for his assessment of it against those two policies.

Ground 4 was that the inspector had erred in his consideration of the likely effect of the development on the National Park, in particular the acknowledged harm to its setting, failing to perform his duty under section 11A of the National Parks and Access to Countryside Act 1949, to apply the policy in paragraph 176 of the National Planning Policy Framework (“the NPPF”), and to give adequate reasons for his conclusions on these matters.

Permission to appeal was granted against the judge’s decision on both grounds.

Judgement

Ground 2

Did the inspector err in his treatment of the draft policies in the emerging local plan?

Lord Justice Lindblom, in the leading judgement, disagreed with the High Court and found that the inspector had made no legal error when considering draft policies in the emerging local plan.

He argued that the proposal’s relationship to the emerging policies was a key consideration in the inspector’s assessment.

Lord Justice Lindblom concluded that there was little doubt about the lawfulness of the inspector’s approach to the draft strategic policies of the emerging local plan on which the council relied. They clearly did take those policies into account, gave weight to the proposal’s conflict with them, and provided proper reasons for his relevant conclusions.

Ground 4

Did the inspector err in considering the development’s effect on the setting of the National Park?

The crucial question was whether the inspector’s assessment of the likely effects of the development on the setting of the National Park, in which he appeared to have accepted that those effects would indeed be harmful, shows how he gave “great weight” to the conservation and enhancement of the landscape and scenic beauty in the National Park, as the policy in paragraph 176 of the NPPF requires.

In paragraph 49 of the inspector’s decision, he addressed the question of the proposal’s compliance with the policy in paragraph 176. In that paragraph, however, the inspector made no mention of the requirement of paragraph 176 that “[g]reat weight should be given to conserving and enhancing landscape and scenic beauty in National Parks”.

Lord Justice Lindblom outlined that it was not clear how the inspector reconciled his conclusions on harm in paragraphs 47 and 48 with his conclusion at the end of paragraph 49 that neither the setting of the National Park nor views from within it would be “materially affected”.

The level of harm identified by the inspector in paragraph 47 of the decision letter – “moderate adverse and not significant” – was not merely negligible.  Lord Justice Lindblom found it difficult to square this with the conclusion in the final sentence of paragraph 49 that the setting of the National Park would not be “materially affected”. He argued that even if those two conclusions could be regarded as consistent with each other, it would still be unclear whether the harm identified by the inspector carried any weight in his planning balance, or, if it did, how that amount of weight could be seen as compatible with the “great weight” principle in the Government’s planning policy for National Parks.

Consequently, the Court of Appeal found that the inspector’s reasoning was defective.

Lord Justice Vos and Lady Justice Andrews agreed with Lord Justice Lindblom and the appeal was dismissed with costs.

This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published. If you would like further advice and assistance in relation to any of the issues raised in this article, please contact us today by telephone or email enquiries@sharpepritchard.co.uk.