Vistry Homes Limited v Secretary of State for Levelling Up, Housing and Communities & Ors

In a planning judgment, the court confirmed that the weight given to material considerations is ordinarily a matter of planning judgment, subject to public law limits. A decision-maker may give little or no weight to the use of previously developed land where the proposed development causes serious Green Belt harm. The NPPF does not require the benefit of using previously developed land to be included in the very special circumstances balance where footnote 49 removes policy support because the proposal conflicts with Green Belt policy. Generic economic benefits may receive reduced weight where the development conflicts with the plan-led system. Biodiversity net gain exceeding mitigation of project-specific harm is a benefit even where policy or legislation requires it. The statutory 10% biodiversity requirement may be used as a benchmark, but must not be used to discount the first 10% of the gain.

Two statutory reviews under section 288 of the Town and Country Planning Act 1990 challenged decisions dismissing planning appeals for large residential schemes in the Green Belt.

Vistry Homes challenged the treatment of previously developed land and biodiversity net gain. Fairfax Acquisitions challenged the treatment of economic benefits and biodiversity net gain. In both cases the Inspectors accepted that the schemes were inappropriate development and found that the benefits did not clearly outweigh Green Belt, landscape and other harm. The central issues were whether the Inspectors had misinterpreted the NPPF, acted irrationally or provided legally inadequate reasons.

The claims were dismissed. The court held as follows.

1. Planning judgment and statutory review. Whether a matter is material is a question of law, but the weight given to it is a matter of planning judgment, subject to irrationality and other public law controls. Challenges based on policy interpretation, irrationality and inadequate reasoning must be kept distinct.
2. Previously developed land. The term “curtilage” in the NPPF must be interpreted in accordance with R (Hampshire County Council) v Secretary of State for Environment, Food and Rural Affairs. The land must be sufficiently intimately connected with the building to form part and parcel of it. Functional equivalence, convenience, or inclusion within the same planning unit is irrelevant. The Inspector’s finding that the appeal site was previously developed land was not challenged because the appeal had been dismissed, but any reconsideration would have to apply the correct test.
3. The Inspector was entitled to give no weight to the use of previously developed land in the very special circumstances balance. Paragraph 123 of the NPPF is subject to footnote 49. Where a proposal conflicts with Green Belt policy, the policy support for previously developed land does not apply. Paragraph 147 concerns plan-making and does not create a general entitlement to treat a previously developed Green Belt site as sequentially preferable in an individual appeal. The Inspector properly distinguished the Maitland Lodge appeal decision.
4. Economic benefits. Generic benefits arising from construction, occupation and taxation may be given reduced weight where the development is fundamentally contrary to national and local policy. The decision-maker need not identify alternative policy-compliant sites. That approach does not impermissibly double-count Green Belt or landscape harm. Any possible error was immaterial because the Inspector stated that the appeal would fail even if greater weight were given to the benefits.
5. Biodiversity net gain. Measures which merely mitigate or offset harm caused by the development are not ordinarily benefits. Biodiversity net gain, properly so called, improves biodiversity beyond offsetting the project’s effects and is a benefit. A statutory or policy requirement does not alter that character. The statutory 10% requirement may be used as a benchmark, but it cannot justify treating the first 10% as no benefit or reducing the weight otherwise due to it. The Inspectors’ reasoning was lawful on the facts and submissions before them.
6. The Inspectors’ conclusions that the benefits did not clearly outweigh the identified harms were within the lawful range of planning judgment. The appeals were dismissed and the claims for statutory review failed.

First-instance statutory reviews under section 288 of the Town and Country Planning Act 1990. The court dismissed both claims challenging the Inspectors’ decisions dated 26 January 2024.