Developer of 1,200-home urban extension wins High Court challenge over refusal of planning permission in ministerial decision letter

The promoter of a 1,200 homes urban extension in Warrington has convinced the High Court that a decision letter from the Secretary of State for Housing, Communities and Local Government was so muddled that a planning inspector’s recommended refusal of planning permission should be overturned.

Developer Satnam Millenium was refused planning permission by Warrington Borough Council, and it appealed unsuccessfully to inspector Richard Schofield.

It then appealed to the High Court arguing that the Secretary of State had misinterpreted paragraph 11(d) of the National Planning Policy Framework and had erred in law in his approach to whether the proposed development was deliverable.

The other two grounds were that he erred in law in applying the criminal standard of proof to the assessment of traffic impact and Mr Schofield had shown bias.

In Satnam Millenium Ltd v Secretary of State for Housing, Communities And Local Government [2019] EWHC 2631 (Admin) Sir Duncan Ouseley, sitting as a High Court judge, upheld the first two grounds but not the latter two.

The inspector found the proposed development would create an adverse impact on local traffic and that the scheme might not be deliverable as the developer did not own the site’s principal access point and had no support from any bus operator to run a service through the site to reduce car traffic.

The Secretary of State agreed with inspector that the different ownership of the access point made it “very difficult to see how the scheme can be regarded as deliverable as there is no reason to consider that the site would necessarily be sold to the appellant or that it would come forward as part of, or linked to, this scheme”.

The decision letter said the Secretary of State had given significant weight to adverse impacts on the highway network and local air quality.

He recognised that if the scheme were deliverable, 1,200 dwellings, 30% of them affordable, would attract significant weight, “however, he considers that the merits of the scheme need to be left for further consideration once the issue of control over all parts of the site has been resolved and it becomes capable of implementation”.

Sir Duncan said the decision letter was “something of a muddle” as the Secretary of State acknowledged that, if the scheme were deliverable, there would be housing benefits of considerable weight, but because it was not capable of implementation, its merits needed to be left for further consideration.

“If he had left it there, the decision might have been unchallengeable,” he said.

“If the scheme were not deliverable, although the advantages in relation to the five-year housing supply position and affordable housing could not accrue, neither would the disadvantages.

“In reality, none of those impacts would occur without the benefits of the scheme. There is no suggestion of how the one could occur without the other. But the impacts of a deliverable scheme were allowed for without the benefits of the scheme which would produce those impacts. This approach is irrational.”

The judge added: “His treatment of the consequences of the scheme not being deliverable is irrational. At the least, the reasoning behind it is wholly unclear, and this is fundamental to the decision.”

He said it had been lawful for the inspector to conclude the scheme was undeliverable but “I do not accept that that was a material consideration which should have weighed in the balance against the grant of permission, at least on the reasoning of the Secretary of State”.

The judge rejected though the argument about mention of the criminal standard of proof in reference to the highways impact being made “beyond reasonable doubt”, saying they had not been used in the context of legal evidence.

“Those words, however, may be used to reflect, inaptly in language, but not so wide of the mark in substance, a genuine point about a precautionary approach and where the risk of error should lie,” Sir Duncan said.

He also dismissed allegations of bias against Mr Schofield based on him being excessively amicable to members of the public who objected to the scheme.

Mr Schofield agreed that he had made sure that interested parties felt part of the proceedings and were able to participate fully and regarded that as consistent with good practice.

The judge said: “Many of the points raised by [a Satnam Millenium director] seem rather petty, and indeed overly critical, suggesting an unwarrantedly aggrieved approach, which make me reluctant to take his points at the level of gravity which he attaches to them”.

He said the director’s objection to a resident giving her evidence in song, followed by the quick interchange over giving evidence in dance and northern humour, “was but a moment of light heartedness, essentially initiated by the witness, and briefly responded to by the inspector…not all judges or counsel are humourless automatons”.

Mark Smulian