Seedlings Property Limited v Secretary of State for Levelling Up, Housing and Communities & Anor

An inspector’s material inversion of the tilted balance in paragraph 11(d) of the National Planning Policy Framework constitutes an arguable error of law. It is not merely a drafting slip where the formulation favours refusal rather than approval. At the permission stage, the court need not finally determine whether the balance was correctly applied. A challenge based on the treatment of deliverable housing units will fail where the units remain authorised and capable of implementation unless the permission is quashed or revoked. Differences in the weight attributed to matters do not establish inconsistency where the inspector is addressing distinct issues, and the attribution of planning weight is an exercise of planning judgment.

The claimant sought permission to bring a statutory review under section 288 of the Town and Country Planning Act 1990 against an inspector’s decision dismissing its appeal concerning the non-determination of an outline planning application for up to 14 self-build dwellings.

Permission had previously been refused on the papers. On renewal, the claimant abandoned Ground 1 and pursued Grounds 2, 3 and 4. Ground 2 challenged the formulation and application of the paragraph 11(d) tilted balance. Ground 3 challenged the inclusion of 480 housing units in the deliverable supply, relying on Hillside Parks Limited v Snowdonia National Park Authority. Ground 4 alleged inconsistent weight attributed to planning matters.

1. Ground 2: Permission was granted. The inspector’s formulation of paragraph 11(d) inverted the tilted balance by stating that severe harm was not significantly and demonstrably outweighed by the benefits. The correct policy approach is a presumption in favour of granting permission, subject to the specified exceptions. The error was apparent on the face of the decision and was more than a slip or drafting error. Whether the inspector nevertheless applied the balance correctly, and whether the simplex principle was engaged, were matters for the substantive hearing. Permission was also granted on the arguable issue whether the most important policies were out of date.
2. Ground 3: Permission was refused. The 480 units had the benefit of planning permission and subsequent reserved matters approvals. The permission remained capable of implementation unless quashed by a court or revoked by the local planning authority. The inspector therefore had a firm basis for treating the units as deliverable. The claimant’s reliance on Hillside Parks Limited v Snowdonia National Park Authority was not sufficient to disclose an arguable error of law.
3. Ground 4: Permission was refused. The passages relied on were not inconsistent. One addressed the weight attached to a particular mechanism restricting the development’s housing product; the other addressed the overall planning balance. The inspector’s assessment of weight was an exercise of planning judgment with which the court would be very reluctant to interfere at the substantive hearing.

The claimant was permitted to rely on its reply. Permission was granted on Ground 2 and refused on Grounds 3 and 4.

Permission to apply for statutory review had previously been refused on the papers by HHJ Worster on 27 June 2023. On renewal, Lang J granted permission on Ground 2 and refused permission on Grounds 3 and 4.