Persimmon Homes (Thames Valley) Limited v Worthing Borough Council

The Court of Appeal considered whether the planning inspector erred in law in (1) failing to address conflict with two draft strategic policies (Policies SS1 and SS4) in the emerging Worthing Local Plan and (2) misapplying national policy for development affecting the setting of the South Downs National Park. The court held that the inspector had considered and afforded weight to the emerging strategic policies, treating them as largely replicating the adopted Worthing Core Strategy Policy 13, and therefore made no legal error on that point. However, the court found the inspector’s reasoning about the development’s effect on the National Park’s setting deficient: he had accepted a finding of moderate adverse harm to views yet did not demonstrate how he had given that harm the "great weight" required by paragraph 176 of the National Planning Policy Framework or explain how that assessment figured in the planning balance or the statutory duty in section 11A of the National Parks and Access to the Countryside Act 1949. The inspector’s reasons on that principal issue were legally inadequate and his decision was quashed. The appeal against the High Court’s quashing was therefore dismissed.

Background and parties: Persimmon Homes (Thames Valley) Limited (appellant) sought outline planning permission for a mixed-use development including 475 dwellings on about 20 hectares of agricultural land outside the built-up area boundary at Chatsmore Farm, within the setting of the South Downs National Park. Worthing Borough Council refused permission; Persimmon appealed under section 78 of the Town and Country Planning Act 1990. An inspector allowed the appeal. The council challenged that decision by judicial review under section 288 of the 1990 Act. Lang J. quashed the inspector’s decision in [2022] EWHC 2044 (Admin). Persimmon appealed to the Court of Appeal, with the Secretary of State as interested party but not represented in the final appeal.

Relief sought: Persimmon sought to overturn the High Court’s order quashing the inspector’s grant of permission and to reinstate the inspector’s decision.

Issues before the Court of Appeal:

• Whether the inspector lawfully took into account and gave adequate reasons for the weight attributed to draft Policy SS1 and Policy SS4 of the emerging Worthing Local Plan.
• Whether the inspector lawfully applied paragraph 176 of the National Planning Policy Framework and discharged the statutory duty under section 11A of the National Parks and Access to the Countryside Act 1949 when assessing effects on the setting of the South Downs National Park.

Court’s reasoning on the emerging plan: The court accepted that the draft strategic policies relied on by the council largely replicated the protective strategy in Policy 13 of the adopted Worthing Core Strategy (prohibiting development outside the built-up area boundary). The inspector had expressly given Policy 13 full weight and had addressed draft Policy SS5 and the relationships between the draft strategic policies. On a fair reading of his decision letter, the inspector confronted the council’s contention about conflict with the emerging plan, afforded weight to that conflict and gave reasons for so doing. The omission of an express reference to Policy SS1 alone did not demonstrate a legal error.

Court’s reasoning on the National Park: The inspector found that the proposal would cause a "moderate adverse" level of harm to views from parts of the National Park. Paragraph 176 of the NPPF requires that "great weight" be given to conserving and enhancing landscape and scenic beauty in National Parks and that development in their setting be sensitively located and designed to avoid or minimise adverse impacts. The court held that the inspector’s decision letter did not explain how the identified moderate harm had been given the "great weight" the policy requires, nor did it explain how that weight was accounted for in the planning balance or under the statutory duty in section 11A. The conclusions in the passages addressing landscape and the planning balance left a substantial doubt as to how paragraph 176 and the statutory duty had been applied. That deficiency in reasons was a legal error requiring quashing of the inspector’s decision.

Subsidiary findings and remedy: The court emphasised established principles of review (deference to planning judgment and toleration of non-material imperfections in reasons) but held that here the defect was material because the National Park setting issue was a principal and controversial matter. The court could not say the outcome would necessarily have been the same if proper reasoning had been given, so relief was not withheld. The appeal was dismissed and the High Court order quashing the inspector’s decision stands.

The Court of Appeal dismissed the appellant's appeal. The court held that the inspector lawfully considered and gave weight to the relevant draft strategic policies in the emerging local plan (SS1 and SS4) as reflecting the adopted development strategy in Policy 13, so there was no legal error on that point. However, the inspector’s reasoning on the effect of the development on the setting of the South Downs National Park was legally deficient: he accepted a finding of moderate adverse harm but did not show how he had given that harm the "great weight" required by paragraph 176 of the NPPF or how that consideration was reflected in the overall planning balance and the statutory duty in section 11A of the 1949 Act. That deficiency required quashing of the inspector’s decision, and the appellant’s appeal against the High Court order was dismissed.

The inspector granted planning permission on appeal (decision letter dated 25 February 2022). The Council sought judicial review and Lang J. quashed the inspector’s decision in the High Court: [2022] EWHC 2044 (Admin). Persimmon obtained permission to appeal to the Court of Appeal (permission given by Warby L.J.); the Court of Appeal delivered judgment on 30 June 2023: [2023] EWCA Civ 762, dismissing the appeal.