Link Park Heathrow LLP v Secretary of State for Levelling Up, Housing and Communities & Ors.

On a statutory planning appeal, an inspector must fairly understand and take into account material considerations, including a proposed planning condition designed to secure enforceability. A mistaken understanding of the condition, or failure to consider its effect, is an error of law.

In the Green Belt context, visual impact is relevant to openness. It does not follow that development outside the countryside encroaches upon the countryside for the purpose of paragraph 138(c) of the National Planning Policy Framework. That question is distinct from the development’s effect on the openness of the Green Belt as a whole.

Link Park Heathrow LLP appealed under section 288 of the Town and Country Planning Act 1990 against an inspector’s refusal of outline planning permission for a data centre on Green Belt land. The application followed the local planning authorities’ failure to determine the application.

The challenge concerned three issues: whether the inspector had unlawfully failed to address an agreed negatively worded planning condition intended to secure leaseholders’ participation in section 106 obligations; whether his conclusions concerning employment opportunities were irrational; and whether he had misinterpreted paragraph 138(c) of the National Planning Policy Framework by treating visual urbanisation outside the countryside as encroachment upon it.

1. Ground 2 allowed. The inspector had identified both the leaseholders’ absence from the unilateral undertakings and the proposed negatively worded condition. The condition would prevent development in the relevant area until the necessary interests had entered into equivalent section 106 obligations, or had ended. Any premature development would therefore breach planning control and could be enforced directly against the relevant leaseholder. The inspector’s reasoning in paragraph 55 appeared to treat the condition as ineffective in the same way as the undertakings. That was a misunderstanding of its effect, or alternatively a failure to take a material consideration into account. The decision was unlawful.
2. Ground 1 also established an unlawful inconsistency. The inspector treated the absence of the local employment and skills contribution as harmful, although he had separately concluded that the contribution was not necessary or reasonable because the Council had no project on which it could be used and no planning policy basis supported it. In those circumstances, its absence should have been neutral rather than a source of specific harm. The conclusion in paragraph 75 was irrational.
3. Ground 3 also established an error of law. The concepts of Green Belt openness and safeguarding the countryside from encroachment are related but distinct. Visual impact may form part of the assessment of openness, as explained in Turner v SSLCLG [2016] EWCA Civ 466 and the authorities following it. But where the development site lies outside the relevant countryside, its urban appearance cannot, without more, constitute encroachment into that countryside under paragraph 138(c). Summers Poultry Ltd v SSCLG [2009] EWHC 533 concerned development within the countryside and did not govern the present situation.
4. The inspector’s decision was quashed. The other grounds were addressed although they were unnecessary once Ground 2 had succeeded.

The matter came before the Administrative Court as a statutory appeal under section 288 of the Town and Country Planning Act 1990 against an inspector’s decision dated 13 December 2022. Lang J had granted permission on Ground 1 and refused Grounds 2 and 3; Mr Justice Waksman granted permission to pursue Grounds 2 and 3 and allowed the challenge.