High Court quashes planning permission due to a failure to consider emerging planning policies

26th August 2022

Brown gavel and block set

In the recent case of Worthing Borough Council v Secretary of State for Levelling Up, Housing and Communities [2022] EWHC 2044 (Admin), the High Court quashed an appeal decision to grant planning permission for a mixed-use development comprising up to 475 houses on land designated as a green gap in an emerging Local Plan.

The court found that the planning inspector had failed to take into account the development’s conflict with two policies of the council’s emerging local plan and/or that he failed to provide adequate reasons for his assessment of the development against those policies. The policies in question sought to limit development outside the boundary of the built-up area and protect important gaps between settlements.

The court said that the policies were clearly material and that the developer’s proposals directly conflicted with them. The emerging plan was at a relatively advanced stage and accordingly the policies should have been weighed in the overall planning balance. The failure of the inspector to give any proper consideration of the policies, or to provide any reasons for departing from them, was irrational and it could not be said that the decision would have been the same had he done so.

The court distinguished the case of West Oxfordshire District Council v Secretary of State for Housing, Communities and Local Government [2018] EWHC 3065 (Admin) on the facts.  In that case, the High Court determined that the failure by the inspector to have regard for the emerging local plan policies, or to give substantial weight to them, was not a material error as the issues which they raised had already been considered and given full weight as part of the adopted local plan policies and National Planning Policy Framework.

In contrast, in the Worthing case, the conflict with the emerging local plan added a further dimension to the consideration of the spatial strategy in the adopted development plan.

The court also found that the inspector erred in his treatment of the effect of the proposed development on the South Downs National Park. Having accepted the assessment in the developer’s ‘Landscape and Visual Impact Assessment’ that the visual effect of the proposed development on certain views from the National Park would be “moderately adverse”, the inspector concluded that neither the setting of the National Park, nor views within it, would be materially affected.

In this respect, the inspector’s decision was irrational and a breach of the requirement of the National Planning Policy Framework to give “great weight” to conserving and enhancing landscape and scenic beauty in National Parks.

The inspector also failed to properly discharge his duty under section 11A of the National Parks and Access to Countryside Act 1949 since, when performing the planning balance exercise in relation to a proposed development which affected views from the National Park, he failed to have regard to the statutory purpose of conserving and enhancing the natural beauty of the National Park.

It is well established that emerging planning policy can be a material consideration in the determination of planning applications and, in appropriate circumstances, can outweigh the provisions of an adopted plan. However, this case highlights the importance of ensuring that all relevant policies, and other material considerations, are taken into account and weighed in the overall planning balance when reaching decisions on planning proposals.