NRS Saredon Aggregates Limited v The Secretary of State for Levelling Up, Housing and Communities & Anor

In a statutory planning review, the weight given to a material consideration is a matter of planning judgment, but the identification of material considerations and the legal basis of that judgment are questions of law. A decision-maker errs in law where the weight given to a benefit is reduced on the mistaken assumption that forthcoming legislation will require that benefit, particularly where the legislation is not yet in force and may not apply retrospectively.

The duty under section 38(6) of the Planning and Compulsory Purchase Act 2004 requires a real assessment of whether a proposal accords with the development plan as a whole. No particular form of words is required. A policy specifically addressing the critical issue may properly be treated as predominant where the other policies do not create a genuine conflict.

The claimant sought statutory review under section 288 of the Town and Country Planning Act 1990 of an inspector’s dismissal of its appeal against refusal of planning permission for a sand and gravel quarry at Lea Castle Farm, Worcestershire.

The challenge concerned the inspector’s treatment of biodiversity net gain in the Green Belt planning balance and his compliance with the duty to determine the application in accordance with the development plan. The court considered whether the inspector had unlawfully reduced the weight of biodiversity gain by reference to forthcoming legislation and whether he had assessed the development plan as a whole.

1. Ground 1 succeeded. The inspector’s decision was quashed. Questions of planning judgment, including the weight given to a material consideration, are ordinarily for the inspector. However, whether a matter is legally material and whether the judgment is based on a correct understanding of the law are questions for the court.
2. The decision letter had to be read benevolently, as a whole and in context, without hypercritical analysis or excessive legalism. Even on that approach, paragraph 195 could only sensibly be read as reducing the weight of the biodiversity net gain because some of it would be required by future legislative requirements applicable to the development.
3. That was legally erroneous. The relevant provisions of the Town and Country Planning Act 1990, inserted by the Environment Act 2021, were not yet in force. The inspector therefore assessed the benefit on a mistaken view of the law. The error was material because the planning balance was described as very finely balanced, and the court could not be satisfied that the same result would necessarily have followed without the error.
4. Ground 2 failed. Section 38(6) required the inspector to have regard to and give priority to the development plan, identify relevant policies, assess whether the proposal accorded with the plan as a whole, and consider material considerations. The duty was substantive rather than formal, but no particular structure or formula was required.
5. The inspector had identified and considered the relevant policies, including policies supportive of the proposal. In the circumstances, it was lawful to treat MLP 27, which specifically addressed mineral development in the Green Belt, as the predominant policy. The other policies did not create a genuine conflict with MLP 27. The inspector had therefore assessed the proposal against the development plan as a whole, notwithstanding his focus on the Green Belt issue.

The claim accordingly succeeded on ground 1, failed on ground 2, and the inspector’s decision was quashed.

This was a first-instance statutory review in the Administrative Court. The inspector’s decision of 5 May 2023 dismissing the planning appeal was quashed on ground 1 and upheld against ground 2.