Weston Homes Plc, R (on the application of) v Secretary of State for Levelling Up, Housing and Communities & Anor

A statutory review of a planning decision may succeed where an Inspector misapplies future legislation, fails to give an intelligible planning balance, departs from an earlier materially similar decision without adequate reasons, or denies a fair opportunity to address a material issue.

Future statutory requirements cannot reduce the weight given to a planning benefit where transitional provisions mean that those requirements do not apply. A later decision-maker must exercise independent judgment, but must explain any material departure from an earlier decision. Fairness is context-sensitive and requires a reasonable opportunity to address material issues, subject to substantial prejudice under Town and Country Planning Act 1990, s.288.

Weston challenged under section 288 of the Town and Country Planning Act 1990 an Inspector’s refusal of a section 62A application for 96 dwellings, access, landscaping and public open space.

The challenge concerned biodiversity net gain, the effect on adjacent ancient woodland, procedural fairness, treatment of the woodland as a non-designated heritage asset, and the weight given to land offered for expansion of a nearby primary school. The scheme followed an earlier, larger proposal which had been refused by another Inspector. The central issues were whether the later Inspector had erred in law, failed to give adequate reasons, or acted unfairly.

1. Ground 1 allowed. The statutory biodiversity gain requirement introduced by the Environment Act 2021 did not apply to an application made before 12 February 2024 because of the transitional provision in SI 2024 No. 44. The Inspector unlawfully reduced the weight given to biodiversity gain below 10% by reference to the forthcoming requirement. His treatment of biodiversity gain above 10% was also inadequately reasoned and lacked a logical chain of reasoning.
2. Ground 4 allowed. The consistency principle applied. The later Inspector was entitled to reach his own view on the effects of the development on Prior’s Wood, but had to give adequate reasons for departing from the earlier Inspector’s conclusion that the woodland management plan prevented indirect effects. The later decision focused on potential air pollution from traffic but gave no adequate reason for rejecting the existing technical air-quality assessment, which had not been challenged. Fairness also required any technical concern to be raised with Weston.
3. Ground 3 rejected. Fairness requires a reasonable opportunity to address material issues, but the content of that opportunity is fact-sensitive. The Inspector need not provide continuing updates on his thinking or revise the issues report. Weston had not shown substantial prejudice in relation to the housing-supply figures, the grandeur of Prior’s Wood, or its treatment as a non-designated heritage asset.
4. Ground 5 rejected. Weston had responded to Historic England’s position concerning Prior’s Wood and had not shown that the local heritage-list policy was before the Inspector or obviously material.
5. Ground 2 allowed in part. The Inspector unlawfully treated the school-expansion land as merely mitigation and failed to take into account the additional financial contribution and the earlier finding that the land was a significant public benefit. He also failed to explain his departure from the earlier decision and did not give Weston a fair opportunity to address the issue.
6. The decision dated 15 December 2023 was quashed. The section 62A application was remitted for a fresh hearing and redetermination by a different Inspector.

This was a first-instance statutory review under section 288 of the Town and Country Planning Act 1990. The challenged decision was the Inspector’s decision dated 15 December 2023 refusing Weston’s section 62A planning application. The decision was quashed and the application remitted for redetermination.