Quarry business wins High Court statutory review over dismissal of appeal over planning refusal

A planning inspector erred in dismissing an appeal over Worcestershire County Council’s decision to refuse planning consent for the extension of a quarry, the High Court has ruled.

The case of NRS Saredon Aggregates Ltd v Secretary of State for Levelling Up, Housing and Communities & Anor [2023] EWHC 2795 (Admin) was brought by NRS Saredon Aggregates against Worcestershire and the Secretary of State for Levelling Up, Housing and Communities.

Mr Justice Eyre said this was a statutory review under s288 of the Town and Country Planning Act 1990 against the decision of planning inspector Stephen Normington to dismiss the quarry firm’s appeal against Worcestershire’s decision.

NRS Saredon Aggregates argued the inspector erred in law in the weight to be attached to biodiversity net gain and failed to comply with his duty under s70(2) of the 1990 Act and s38(6) of the Planning and Compulsory Purchase Act 2004 to make his determination in accordance with the development plan unless there were material considerations to the contrary.

The dispute concerned land at Lea Castle Farm, Kidderminster which is used as a sand and gravel quarry.

Once extraction is complete, the site is to due to be restored using inert material to provide new agricultural parkland and woodland with a biodiversity net gain of more than 39.31%BU for habitats and 107.51%HU for hedgerows.

NRS Saredon Aggregates’ first ground of challenge was that the inspector said some of the biodiversity net gain was “required to meet national policy and future legislative requirements".

It argued the phrase ‘and future legislative requirements’ showed that the inspector was proceeding on the mistaken basis that the requirement under the Environment Act 2021 for an increase in biodiversity value of at least 10% would apply retrospectively to a permission granted to it.

The company said the inspector regarded this as a consideration reducing the weight to be attached to the biodiversity net gain and so erred by basing his judgement on a mistaken understanding of the law.

Eyre J said in his judgment: “I am driven to the conclusion that the meaning and effect of [the decision letter] is that the inspector noted the extent of the biodiversity net gain but then decided that the weight to be attributed to that gain was to be reduced because some of the gain would be needed anyway in respect of the development at the site by reason of the future legislative requirements.

“I have concluded that this is the only interpretation which makes sense of the language used by the inspector and the way in which he structured that paragraph.”

The judge said this meant that when assessing the weight to be attributed to the biodiversity net gain in deciding whether there were very special circumstances outweighing the harm to the openness of the green belt “the inspector reduced that weight on the basis of a mistaken view as to the law.

“He did so believing incorrectly that some of the net gain would be required in any event by reason of the forthcoming legislation. That was an error of law and meant that the inspector exercised his planning judgement as to the weight to be given to that material consideration (namely the net gain) on a basis which was wrong in law.”

Eyre J said he could not be satisfied that the decision would necessarily have been the same but for the error as “the fact that the extent of the reduction made cannot be known means that we cannot know whether the result would have been the same if the inspector had not reduced the weight he attached to the biodiversity net gain”.

He quashed the decision but rejected a second ground over whether the inspector had regard to the development plan.

Mark Smulian