Protect Dunsfold Ltd v Secretary of State for Levelling Up, Housing and Communities & Ors

On a challenge under [2023] EWHC 1854 (Admin) to a planning decision, the court must read the decision reasonably flexibly and should avoid hypercritical scrutiny. An inspector need address the principal important controversial issues, not every argument or material consideration. The requirement to give great weight to conserving and enhancing landscape and scenic beauty in an Area of Outstanding Natural Beauty increases the weight attributed to harm, but it need not be recited formulaically. Temporary harm may properly attract moderate weight. A previous planning decision is material only where, in the circumstances, it is one which no reasonable decision-maker would have failed to consider. Similarity, without more, does not make the earlier decision a mandatory consideration.

Protect Dunsfold Ltd and Waverley Borough Council brought claims under Town and Country Planning Act 1990, s.288, challenging the Secretary of State’s decision to grant permission for a temporary exploratory and appraisal gas well-site at Dunsfold, Surrey.

The claims alleged, first, that insufficient weight had been given to harm to the Surrey Hills Area of Outstanding Natural Beauty and its setting under paragraph 176 of the National Planning Policy Framework; and secondly, that the decision was unlawfully inconsistent with a contemporaneous decision refusing permission for shale-gas exploration at Ellesmere Port.

1. Ground 1 dismissed. The court applied the principles in St Modwen and Hopkins Homes. Planning decisions are read reasonably flexibly. The court presumes that a specialist inspector understood familiar national policy unless the report contains a clear positive indication to the contrary.
2. The first sentence of paragraph 176 of the Framework requires great weight to be given to conserving and enhancing landscape and scenic beauty in an AONB. That requirement increases the weight attributed to harm, but does not require the decision-maker to use the words great weight or adopt a formulaic sequence of reasoning. The weight ultimately given remains a matter of planning judgment. Temporary harm may, in principle, attract moderate weight.
3. The Inspector had considered harm to the AONB separately, referred to paragraph 176, identified the AONB’s high sensitivity, and explained that the short-term nature of the development tempered the weight of the harm. The Secretary of State adopted that reasoning. The collective assessment of landscape, AONB and business-related harms did not establish a failure to apply the policy.
4. Ground 2 dismissed. Previous planning decisions may be material considerations, and consistency is important, but like cases need not be decided alike. A previous decision becomes a mandatory consideration only where, applying the Wednesbury test, no reasonable decision-maker would have failed to take it into account. The circumstances must be assessed as a whole.
5. The Ellesmere Port decision was not a mandatory consideration. Although both decisions concerned exploratory gas development and were made by the same Minister on the same day, the Ellesmere Port case raised climate change as the sole reason for refusal, concerned shale gas and a different policy context, and involved materially different local circumstances. Climate change emissions had not been raised as an issue in the Dunsfold inquiry. The claims were dismissed.

First-instance statutory planning challenges under s.288 of the Town and Country Planning Act 1990. The judgment records no subsequent appellate decision.