Planning Inspector misunderstood proposed planning condition in appeal, High Court rules
A High Court judge has quashed a planning inspector's decision to refuse planning permission for a data centre on green belt land after finding the inspector made an error in law either by misunderstanding the effect of a planning condition or failing to take it into account in his decision.
The disputed planning application in Link Park Heathrow LLP v Secretary of State for Levelling Up, Housing and Communities & Ors [2023] EWHC 1356 (Admin) was for a proposed development on green belt land that covers both Buckinghamshire Council and Hillingdon Council's areas.
The developer appealed to the Planning Inspectorate due to the two councils' non-determination of the claimant's planning application for the data centre.
But in a decision letter published last year (December 2022), the inspector dismissed the appeal, stating that the proposed development would be inappropriate development and would harm the green belt.
He found harm to the openness of the green belt, significant harm to the character and appearance of the immediate surroundings and some harm to the wider area.
He also found that the development would have an adverse effect on the air quality in Buckinghamshire and Hillingdon and would fail to provide appropriate employment opportunities for residents of Buckinghamshire.
Link Park Heathrow then sought a judicial review of the decision. It advanced three grounds at the High Court, the first contending that the inspector's conclusions as to the lack of employment opportunities offered by Link Park Heathrow were inconsistent and/or irrational.
The second ground alleged that the inspector erred in law as to the effect of a planning condition, and/or he did not take it into account, although it was a material consideration.
Ground three argued that the inspector wrongly interpreted paragraph 138(c) of the National Planning Policy Framework (NPPF) and so erred in law.
Paragraph 138(c) says:
Green Belt serves five purposes:
(c) to assist in safeguarding the countryside from encroachment.
Waksman J tackled the second ground first.
He explained the issue in ground two arose because some of the land involved in the development was leased to tenants who were not included in the draft unilateral undertaking.
At the inspector's hearing, there was discussion about amending the undertaking or pursuing a solution called an 'Arsenal' planning condition, which would prevent any development until all parties, including the leaseholders, had entered into the undertaking.
But the inspector rejected the 'Arsenal' condition approach, preferring the approach of having all the interested parties sign the unilateral undertaking.
Waksman J concluded that either the inspector misunderstood the effect of this condition, which was an error of law, "or if he did understand it, he did not take it into account in reaching his conclusion".
"Either way, this rendered his decision unlawful," he concluded.
Despite finding the decision unlawful on ground two, he went on to deal with grounds one and three.
He found in favour of Link Park Heathrow on the first ground, concluding that it was irrational for the inspector in to give specific weight to the supposed harm caused by the removal of the financial contribution.
On the third ground, the judge found that the inspector made an error of law in his interpretation of "encroachment" in the context of para.138(c) of the NPPF. "That would have provided, had it been necessary, a yet further basis for quashing his decision," he noted.
Adam Carey
