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High Court rejects challenge to decision by planning inspector despite errors

An inspector made minor errors when considering a planning dispute in Essex but these were not significant enough to invalidate her decision letter, the High Court has ruled.

In Thorpe Hall Leisure Ltd v Secretary of State for Housing, Communities And Local Government & Anor [2020] EWHC 44 (Admin) Sir Duncan Ouseley sitting as a High Court judge, said: “Although I consider that the inspector erred in certain minor respects, they could not have affected her decision. This application is dismissed.”

Developer Thorpe Hall Leisure took the action against the Secretary of State for Housing, Communities and Local Government, with Tendring District Council as an interested party.

Thorpe Hall Leisure (THL) applied to Tendring for planning permission on 22 hectares of land in Thorpe-le-Soken for up to 200 homes, a three hectare park, landscaping and associated infrastructure.

The council refused and THL appealed but the inspector dismissed this in June 2019.

THL appealed to the High Court on the grounds that the inspector erred in law in finding that she could not conclude that there would be no adverse effect on the Hamford Water Special Protection Area, or the Hamford Water Special Area of Conservation, some 2.4km to the north of the appeal site.

It said she had reached that conclusion relying on an erroneous interpretation of Natural England's interim advice.

It also contended the inspector was wrong to conclude that the possible adverse effects could not be overcome at least in part by a condition, which she could and should have imposed.

THL also argued that the inspector erred in law in reducing the weight she gave to the affordable housing element of the proposal, by taking immaterial factors into account and misinterpreted paragraph 80 of the National Planning Policy Framework, giving less weight than she ought to the advantage that the development would bring to the local economy by extending the commercial life of the adjacent Lifehouse Hotel.

Sir Duncan said: “In the upshot, there was one error in her interpretation of the interim advice [from Natural England], in relation to the specificity of the list of mitigation measures.

“But the inspector's decision would not have been different on that account because I have concluded that she was right, and her decision was adequately reasoned.”

He added: “She would still have not been satisfied that there would be no adverse effect, and would still have had to dismiss the appeal.”

On the affordable housing point he concluded: “The inspector has erred in my judgment in relation to two ‘caveats’ which affected, to some but to no very great degree, the weight she gave to the provision of affordable housing.”

He said arguments about the tilted balance of the NPPF - since Tendring lacked a five year housing land supply - did not apply as policies in the NPPF protecting designated heritage assets or habitat sites provided a clear reason for refusing the development.

The inspector analysed the financial evidence concerning the hotel “in a manner which has drawn no criticism”, Sir Duncan said.

She found no planning mechanism linking the housing development to investment in the hotel.

Mark Smulian

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