Thorpe Hall Leisure Ltd v Secretary of State for Housing, Communities And Local Government & Anor

In a habitats assessment, a competent authority must be satisfied beyond reasonable scientific doubt that a project will not adversely affect a protected site's integrity. Strategic financial contributions may secure mitigation without identifying specific projects, but the arrangements must include a mechanism ensuring that mitigation is implemented before first occupation where the relevant advice requires it. An inspector is not generally required to devise planning conditions to cure deficiencies in a proposal. An inspector must give cogent reasons for rejecting the view of a statutory nature conservation consultee. In assessing planning benefits, immaterial matters such as unsupported concerns about viability or tenure split cannot reduce the weight given to affordable housing. A broad economic policy does not necessarily give substantial weight to housing development proposed to finance an existing business.

The claimant challenged the Secretary of State's dismissal of its planning appeal under section 288 of the Town and Country Planning Act 1990. The proposal comprised up to 200 dwellings and associated works near the Lifehouse Hotel. The Inspector concluded that the proposed mitigation did not establish the absence of adverse effects on European sites, reduced the weight given to affordable housing, and gave limited weight to the proposal's claimed economic benefits for the hotel. The issues were whether the Inspector had misinterpreted Natural England's interim advice, failed to give adequate reasons, acted unfairly, misapplied planning policy, or should have imposed a condition.

1. The application was dismissed. The Inspector had correctly understood the stringent test under regulation 63 of the Conservation of Habitats and Species Regulations 2017, namely that no reasonable scientific doubt could remain about the absence of adverse effects on site integrity. The court referred to Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris Van Landbouw Naturbeheer en Vissierij CJEU C-127/02 and Grace v An Bord Pleanala CJEU C-164/17.
2. The Inspector had correctly found that the pre-RAMS undertaking did not identify specific visitor-management measures and did not require their implementation before occupation. However, Natural England's interim advice did not require a specific list of measures. The Inspector therefore misinterpreted the advice on that point.
3. The advice did require a suitable mechanism to secure and ensure implementation of mitigation before first occupation. Payment of a contribution to the local authority, coupled only with an expectation that it would spend the money, was insufficient. The Inspector was correct on that issue, although her differing treatment of the pre- and post-RAMS positions was internally inconsistent. The court also held that substantial weight was required for Natural England's view and cogent reasons were needed for departure from it, applying Smyth v Secretary of State for Communities and Local Government [2015] EWCA Civ 174.
4. An inspector is not generally obliged to devise a planning condition or its wording to solve a problem identified in an application. The court applied Gladman Developments Ltd v Secretary of State for Communities and Local Government [2019] EWCA Civ 1543; Top Deck Holdings Ltd v Secretary of State for the Environment [1991] JPL 961 did not establish the claimant's broader proposition.
5. The Inspector unlawfully reduced the weight given to affordable housing by relying on the absence of site-specific viability evidence and information about tenure split. Those matters had not been raised as issues and there was no evidential basis for treating them as adverse considerations. It was unfair to rely on tenure split without giving the claimant an opportunity to respond. The Inspector's treatment of mere policy compliance did not, by itself, disclose an error.
6. The Inspector did not misinterpret paragraph 80 of the Framework. She considered the economic significance of the hotel but was entitled to give limited weight to the proposed housing development as a means of financing it, particularly given the absence of a planning mechanism linking the development to investment and the uncertainties surrounding the hotel's future.
7. Even if the errors had justified a different conclusion on habitats or affordable housing, the result would inevitably have been the same. The extensive conflict with the development plan, harm to designated heritage assets, and other adverse impacts meant that the residual discretion under section 288 should be exercised against quashing the decision, applying Simplex (GE) Holdings v Secretary of State for the Environment [1988] 3 PLR 25 and Smech Properties Ltd v Runnymede BC [2016] EWCA Civ 42.

The judgment describes a planning appeal from Tendring District Council's refusal of permission. An Inspector appointed by the Secretary of State held an inquiry and dismissed the appeal in a decision letter dated 11 June 2019. The claimant then brought this statutory challenge in the Administrative Court under section 288 of the Town and Country Planning Act 1990. The challenge was dismissed.