Holystone Civil Engineering Limited v Secretary of State for Levelling Up, Housing and Communities & Anor

A fallback development may be a material planning consideration where there is a real, rather than fanciful, prospect that it will be implemented. The decision-maker must then decide what weight it deserves. Fallback cannot alter or rewrite Green Belt policies, or determine whether proposed development is inappropriate development. It may, however, contribute to very special circumstances.

The Green Belt exceptions concerning replacement buildings and existing development ordinarily refer to buildings or development that actually exist. A planning permission for an unbuilt scheme does not itself satisfy those exceptions. A decision letter must be read fairly and flexibly, but it must intelligibly address material considerations. A material misunderstanding of employment evidence is a public law error where the court cannot know what weight would otherwise have been given to it.

The claimant challenged an inspector’s dismissal of its appeal against Sunderland City Council’s refusal of a Town and Country Planning Act 1990 section 73 application. The application sought permission to vary conditions attached to an existing permission for the redevelopment of a former quarry in the Green Belt, including increased inert-waste infilling and a higher development platform for an unbuilt employment park.

The inspector found the proposal inappropriate development, gave limited or moderate weight to claimed benefits, and concluded that very special circumstances did not exist. The claim concerned whether the inspector had unlawfully failed to use the permitted scheme as the fallback baseline when assessing Green Belt openness, and whether he had misunderstood the employment evidence.

1. Ground 1 dismissed. A section 73 application must be determined by reference to current national and local planning policies. Fallback is capable of being a material consideration where there is a real prospect that the permitted development will take place. The weight given to it remains a matter for the decision-maker, subject to public law review.
2. Fallback cannot rewrite Green Belt policy or compel the conclusion that development is not inappropriate. It must remain part of the overall planning judgment and may contribute, alone or with other factors, to very special circumstances.
3. On ordinary language, paragraph 149(d) of the NPPF refers to replacement of a building that exists, not replacement of a building that has merely been permitted. Similarly, “existing development” in paragraph 149(g) refers to development actually existing. The inspector was therefore entitled to find that the relevant Green Belt exceptions were not met.
4. The inspector had not ignored fallback. He expressly considered it under “Other considerations” and gave it limited weight. His decision letter was to be read flexibly under the principles in Bloor Homes East Midlands Ltd. His conclusion that the proposal would have a greater impact on openness than the permitted scheme made the precise weight that would have been given to an assumed contrary finding immaterial.
5. Ground 2 succeeded. The inspector materially misunderstood the evidence about employment. The claimed jobs related to continuation and expansion of the waste facility, not to the employment park. Paragraphs 19 and 20 of the decision letter were consequently baffling, and the court could not know what weight the inspector would have given the employment consideration without the error.
6. The Simplex test was not satisfied: it could not be said that the inspector would necessarily have reached the same conclusion if the error were excluded. The parties were invited to agree a draft order giving effect to the judgment.

The claim was brought against the inspector’s decision dismissing the claimant’s planning appeal following Sunderland City Council’s refusal of the section 73 application. The High Court allowed the challenge on ground 2 and dismissed ground 1.