Project Genesis Limited v Secretary of State for Levelling Up, Housing and Communities & Ors

In a statutory planning review, the meaning of a development plan policy is determined from its ordinary and natural language, read as a whole. A policy protecting an area affected by development may apply even where the development site lies outside the designated area. A planning decision-maker may attribute different overall weight to impacts without revisiting the individual assessment of those impacts, provided the reasoning is lawful and adequately explained. A decision-maker is not generally required to conduct a site visit where the inspector’s quantified assessments are accepted. Planning obligations must be directly related to the development and fairly and reasonably related in scale and kind. A fund addressing pre-existing fuel poverty, without a causal or sufficiently direct connection to the development, may fail those requirements.

The claimant sought statutory review under section 288 of the Town and Country Planning Act 1990 of the Secretary of State’s decision dismissing its recovered appeal under section 78 against refusal of planning permission for an energy-from-waste facility in County Durham.

The Inspector recommended allowing the appeal. The Secretary of State disagreed in the planning balance, placing very significant weight on landscape harm and refusing permission. The claim raised four issues: the interpretation of County Durham Plan Policy 39 concerning an Area of Higher Landscape Value; the fairness and sufficiency of the decision-making process; the aggregation of benefits under Government policy; and the lawfulness of disregarding a proposed fuel-poverty obligation under regulation 122(2) of the Community Infrastructure Levy Regulations 2010.

1. Claim dismissed. The Secretary of State’s decision was within the statutory powers and contained no material public law error.
2. Policy 39 paragraph [3] was engaged by development “affecting” an Area of Higher Landscape Value, not only by development located within it. The phrase “in that location” referred to the proposed development site. The Secretary of State therefore applied the correct interpretation when finding that the development did not conserve the AHLV’s special qualities and that the benefits did not clearly outweigh the harm.
3. The Secretary of State lawfully assigned very significant overall weight to landscape harm after expressly accepting the Inspector’s individual assessments of the nature and degree of impact from each viewpoint. There was no requirement to conduct a site visit or obtain every item of evidence considered by the Inspector. The selection of materials fell within the decision-maker’s latitude as to a reasonable sufficiency of enquiry.
4. The Secretary of State did not unlawfully aggregate the combined heat and power benefits with the catalytic effect on further development. Read with the Inspector’s reasoning, the decision recognised linked benefits carrying significant weight and did not depart from EN-1 paragraph 4.6.8 or NPPF paragraph 81.
5. Regulation 122(2) involved planning judgment rather than a hard-edged question of statutory interpretation. The direct relationship and proportionality tests concern the relationship between the obligation and the development, including directness, scale and kind. A fuel-poverty fund was unrelated to any impact of the development, lacked a causal connection, involved no direct supply or discount of energy, and was based on an arbitrary sum without a planning-policy evidence base. It was reasonably open to the Secretary of State to find that the obligation failed both tests. The necessity issue added nothing distinct.
6. The Developer was ordered to pay the Secretary of State’s costs. The Council’s costs of its acknowledgment of service and summary grounds were not awarded.

The Secretary of State recovered the claimant’s section 78 planning appeal and, following an inquiry and Inspector’s report recommending permission, dismissed the appeal and refused planning permission on 26 June 2023. The High Court dismissed the statutory review challenge.