Green gaps and emerging Local Plans

The High Court has quashed the Secretary of State’s decision to grant permission for housing on land designated as a green gap in an emerging Local Plan. Hugh Flanagan, Isabella Tafur and Daisy Noble analyse the ruling.

In Worthing Borough Council v Secretary of State for Levelling Up, Housing And Communities & Anor [2022] EWHC 2044 (Admin) Mrs Justice Lang has allowed a s.288 challenge to the Secretary of State’s decision to grant planning permission on appeal to Persimmon Homes for the erection of up to 475 houses on land designated as a green gap in an emerging Local Plan.

Worthing Borough Council challenged the decision on four grounds, two of which were allowed.

The Court found that the Inspector had failed to take account of the development’s conflict with two policies, SS1 (spatial strategy) and SS4 (development in the countryside) of the emerging Local Plan and/or failed to give adequate reasons as to the assessment of the development against those policies. She distinguished the case from West Oxfordshire DC v Secretary of State for Housing, Communities and Local Government [2018] EWHC 3065 (Admin) and rejected the Defendants’ submissions that policies SS1 and SS4 had not formed a significant part of the Council’s case at the inquiry and that the emerging policies added nothing of substance to the adopted development plan policy 13, to which the Inspector gave full weight. Policies SS1 and SS4 were not merely another layer of policy which continued the effect of policy 13. They were the product of a new balancing exercise, carried out in the context of the NPPF and taking account of current housing needs. The Inspector should have assessed the development against the emerging policies and determined the appropriate weight to attribute to them. It was not possible for the Court to predict the Inspector’s conclusions on such a multi-faceted issue so as to conclude that the outcome would necessarily have been the same. The Simplex test was not met.

The proposed development was within the setting of the South Downs National Park. The Court found that the Inspector had erred in his treatment of the impact of the development on the National Park. Having found that there would be a moderate adverse impact on particular views from the National Park, the Inspector nonetheless concluded that the setting of the National Park would not be materially affected. In light of his finding of moderate adverse impacts on key views, and notwithstanding that he added the words “and not significant” when making that finding, the Judge found that it would be irrational for the Inspector to conclude that there would be no adverse effect at all on the National Park. The harm should have been attributed great weight in accordance with paragraph 176 of the NPPF, but was not mentioned or given any weight in the Inspector’s planning balance. The Inspector also failed to discharge his duty under s.11A of the National Parks and Access to Countryside Act 1949 in that he failed to have regard to the statutory purpose of conserving and enhancing the natural beauty of the National Park in his overall planning balance.

Isabella Tafur and Daisy Noble are barristers at Francis Taylor Building. They acted for the Claimant, Worthing Borough Council. 

Hugh Flanagan, also of FTB, acted for the First Defendant, the Secretary of State for Levelling up, Housing and Communities.