Reasoning behind planning inspector decision on 475-home scheme “failed to meet the standard required”, Court of Appeal finds

The Court of Appeal has found the reasons given by a planning inspector in their decision to allow an appeal of Worthing Borough Council's planning refusal of a 475-home development "failed to meet the standard required".

In Persimmon Homes (Thames Valley) Ltd v Worthing Borough Council [2023] EWCA Civ 762, the Senior President of Tribunals, Sir Keith Lindblom, sitting with Lady Justice Andrews and The Master of the Rolls, Sir Geoffrey Vos, considered the High Court's quashing of the inspector's decision to allow the developer's appeal.

The developer had applied for planning permission to build the housing development, which would be situated on a 'green gap' between Goring and Ferring and within the setting of the South Downs National Park, in early 2021. Worthing then refused permission in March 2021.

But a planning inspector who was later tasked with considering the refusal allowed the developer's appeal.

Worthing then appealed the decision to the High Court, which held that the inspector had made errors of law by failing to deal with the proposal's conflict with two draft strategic policies in an emerging local plan, and in misapplying the Government's policy for development that would affect the setting of a National Park.

The Court of Appeal decision turned on the inspector's consideration of the effect of the development on the setting of the national park.

At paragraph 47 of his decision letter, he concluded that the development would impart "moderate adverse and not significant" harm to views from the National Park. But two paragraphs later, he also concluded that there would be no adverse effects at all.

On this point, the High Court judge, Mrs Justice Lang, said: "I consider it would be irrational for him to conclude […] that there were no adverse effects at all."

Lang J also concluded that the inspector did not explain his reasons for the inconsistency between these two positions.

As a result, when conducting the overall planning balance, "he failed to give any weight to the moderate adverse effects he had found, which was in breach of the policy requirement in paragraph 176 of the [National Planning Policy Framework] to give them 'great weight'", the High Court judge said. 

Paragraph 176 of the NPPF states that:

"Great weight should be given to conserving and enhancing landscape and scenic beauty in National Parks, the Broads and Areas of Outstanding Natural Beauty which have the highest status of protection in relation to these issues."

At the Court of Appeal, the developer submitted that Lang J's conclusions were mistaken, arguing that it was clear that the inspector gave "great weight" to the conservation and enhancement of landscape and scenic beauty in the national park despite the inspector not using the words "great weight".

Sir Keith Lindblom found that he did not have to go as far as Lang J and find that the inspector's conclusion that there were no adverse effects at all to the national park was irrational.

"It is enough to conclude, as I think we must, that in this part of his decision-making the reasons he gave failed to meet the standard required", Sir Keith said.

"Even for an audience familiar with this 'principal important controversial [issue]' – as Lord Brown put it in South Bucks District Council v Porter (No.2) (at paragraph 36) – and with the parties' evidence and submissions about the effects of the development on the setting of the National Park, it is not clear how, or even if, the inspector has resolved that controversy."

He added: "It is not clear whether he gave any weight, or conceivably no weight at all, to the harm he identified in paragraph 47 of the decision letter. And it is not clear how that degree of weight can be reconciled with the whole policy in paragraph 176 of the NPPF, including the requirement to give 'great weight' to 'conserving and enhancing landscape and scenic beauty in National Parks'."

The Senior President continued: "Clarity on those matters is not too much to expect of the reasons given on one of the main issues in the section 78 appeal. The level of harm identified by the inspector in paragraph 47 of the decision letter – 'moderate adverse and not significant' – was not merely negligible. And it is not obvious how that finding of harm can be squared with the conclusion in the final sentence of paragraph 49 that the setting of the National Park would not be "materially affected".

"Even if those two conclusions could be regarded as consistent with each other, it would still be unclear whether the harm identified by the inspector carried any weight in his planning balance, or, if it did, how that amount of weight could be seen as compatible with the 'great weight' principle in the Government's planning policy for National Parks."

Sir Keith accepted that the inspector did not have to voice the words "great weight" in his decision, "but he did have to show how he had applied that part of the paragraph 176 policy, and how it had influenced the planning balance, if it did", he noted.

As a result, Sir Keith found the council's complaint on this ground to be justified and the inspector's reasons "defective". He dismissed the appeal.

Lady Justice Andrews and The Master of the Rolls, Sir Geoffrey Vos, agreed.

Commenting on the decision, the leader of Worthing Borough Council, Cllr Dr Beccy Cooper, said: "Our communities have been united in their desire to keep this green land as part of our coastal environment and I am absolutely delighted by the Court of Appeal's decision.

"We are very mindful of the need to balance our acute housing need, particularly for local residents currently struggling to afford homes here, with our need for green space. Both are essential for our community wellbeing and we will continue to balance these needs as we move forward with building new homes in Worthing and along our coastline."

Cllr Cooper added: "I would like to congratulate and thank all the local residents, politicians and outstanding Council officers who worked hard and stood together to speak up for Chatsmore Farm.

"In the middle of a climate emergency, protecting our green land is essential to ensure our children and grandchildren can thrive."

Adam Carey