Judge dismisses challenge brought by owner of neighbouring industrial estate over permission for large mixed-use scheme in Bath

The High Court has rejected a challenge by the owner of an adjacent industrial estate to a planning inspector’s decision to grant planning permission for a large mixed-use scheme in Bath.

Permission had been granted in March 2021 by planning inspector Nick Fagan but Standard Life Assurance objected over the expected impact on its property.

In Standard Life Assurance Ltd v Secretary of State for Levelling-Up, Housing And Communities & Ors [2022] EWHC 2632 (Admin) James Strachan KC, sitting as a deputy High Court judge, said that “the inspector's decision was not subject to any of the errors alleged” and dismissed all four grounds argued.

Mr Fagan had allowed an appeal by developer Oakhill Group against a decision by Bath and North East Somerset Council to refuse outline planning permission for redevelopment of the former Hartwells garage site and construction of some 100 homes.

Standard Life owns the adjacent Maltings Industrial Estate over which Oakhill has a right of way, which it intended to use in its redevelopment of its site, but Standard Life feared this would prejudice its continued use of the industrial estate.

Three grounds were put to Mr Strachan by Standard Life, although the final one was subdivided.

The first was that the inspector's decision was irrational as he found some changes to infrastructure and access controls over the industrial estate would be needed but failed to require them.

In its second ground, Standard Life argued Mr Fagan misread the deed of grant concerning the right of way so as to discount potential planning harm from the proposed development; and unlawfully relied on that private law instrument as a reason to discount or neutralise the planning harm Standard Life had raised.

The first limb of the third ground was that Mr Fagan failed to take into account that units on the industrial estate had been in sui generis use for the requisite 10 years without enforcement action being taken, and the second that he erred in dealing with the 'agent of change' principle in paragraph 182 of the National Planning Policy Framework.

Mr Strachan said of the first ground: “I agree…that this ground of challenge is not well-founded…I consider that the ground of challenge is predicated upon a misreading of the inspector's decision and what he found. This becomes evident when one reads the inspector's reasoning fairly and as a whole, as the well-established legal principles require.”

He said Standard Life was “simply wrong to suggest that the inspector was identifying that new electronic gates and measures were necessary for the development to proceed”.

Dismissing the second ground, he said the criticisms made “are unwarranted and just reflect a disagreement with the inspector's legitimate judgment.

"First, it is not at all clear that these sorts of point were in fact made to the inspector. Second, even if they had been, the inspector was not required as a matter of law to deal with each and every point of objection in his decision.”

On the first part of the third ground, Mr Strachan said; “I remain entirely unclear as to what [Standard Life] is really contending to be a full and proper description of the lawful use of the industrial estate” and added “I do not consider the inspector to have acted unlawfully in the way that he dealt with this part of the claimant's objection given the way in which the case was presented to him at the inquiry’. He further dismissed the second part of this ground.

He concluded: “Standing back and reading the decision letter as a whole, I consider that the inspector dealt properly and fairly with all of [Standard Life’s] main objections to the proposed development.

“The reality of the situation is that he did not agree with the claimant's points of objection and considered that the concerns were not a proper basis for refusing planning permission…there was nothing irrational in that judgment, nor was any error of law made in reaching that conclusion.”

Mark Smulian