In Project Genesis Ltd v Secretary of State for Levelling up, Housing and Communities, the claimant developer sought to quash the first defendant Secretary of State's decision upholding the second defendant local authority's refusal to grant planning permission for an "energy from waste" facility.
The proposed development site lay 2.3km from an Area of Outstanding Natural Beauty (AONB), 500m from an Area of Higher Landscape Value (AHLV), designated in the County Durham Plan (CDP), and 650m from grade II listed buildings. The claimant gave a unilateral undertaking (UU) pursuant to the Town and Country Planning Act 1990, to make an annual financial contribution of £120,000 for distribution to households experiencing fuel poverty.
The local authority refused planning permission on the basis that the scale, location and appearance of the development would cause harm to the character and quality of the landscape (both the AONB and the AHLV) and the setting of designated heritage assets which would not be outweighed by the proposal's benefits. The CDP provided that "development affecting AHLV will only be permitted where it conserves, and where appropriate enhances, the special qualities of the landscape, unless the benefits of the development in that location clearly outweigh the harm".
The claimant's appeal against that decision was recovered for the Secretary of State's determination because it was assessed as involving proposals giving rise to substantial regional or national controversy. The planning inspector's report for the Secretary of State concluded that, on balance, the adverse impacts of the proposed development would be significantly and demonstrably outweighed by its benefits related to waste disposal and discounted energy provision, and the proposal would accord with the development plan, the National Planning Policy for Waste, and the National Planning Policy Framework, and would therefore constitute sustainable development.
In reaching that decision, the inspector disregarded the UU on the basis that it failed to comply with the Community Infrastructure Levy Regulations SI 2010/948, which placed limitations on the use of planning obligations, as the existence of fuel poverty was an existing situation unrelated to, and having no association with, the proposed development, and there was no planning policy basis for establishing such a scheme. By his decision, the Secretary of State agreed that the UU should be disregarded. He acknowledged the proposal's benefits, but he considered that its detriment to the character and appearance of the landscape carried very significant weight against it. He concluded that the appeal should be dismissed.
The claimant argued that the Secretary of State had erred in:
During this claim the meaning of the words used in CDP was concluded that the policy was engaged by a development "affecting" an AHLV. The word "affecting" was clear and unambiguous and it would have been very easy to draft the policy by reference to "within" or "in". The proposed development would not be within the AHLB, but it would affect the AHLV. The Secretary of State had considered that the proposed development would not conserve the special qualities of the AHLV, and that its benefits did not outweigh that harm. The was a matter of planning judgement. Therefore there was no misinterpretation of CDP, the policy straightforwardly meant what it said.
It was also concluded that there was no duty on the Secretary of State, in fairness or reasonableness, or to ensure a reasonable sufficiency of enquiry, to go and see the view from the viewpoints. The decision not to conduct a site visit fell squarely within the decision-maker's latitude as to reasonable sufficiency or enquiry. Moreover, the planning decision had been "recovered" and the inspector was making a recommendation, not taking a decision. Part of the function of the inspector's report was to provide information for the decision-maker. If measuring a vital impact had been called for, or been susceptible to more precise language, the inspector would have used it.
Furthermore, there was no development to view. In respect of the photos, plans and photomontages, it was entirely appropriate that the decision-maker should have a selection of materials. The selection of those materials had to be made from the entirety of the body of evidence and submissions considered by the inspector. There was clearly a conscientious exercise in extracting a workable volume of materials for the decision-maker. It was an exercise which fell squarely within the latitude of gathering a sufficiency of material for a reasonable sufficiency of enquiry. There was no vitiating flaw in the process or lack of reasonable sufficiency in the enquiry.
Under SI 2010/948, a planning obligation might only constitute a reason for granting planning permission for the development if the obligation was:
Since the "relationship" between a planning obligation and a development had to be "directly" related the planning obligation provided by the UU had been reasonably assessed as failing to meet the direct relationship test.
"In all the circumstances and for all these reasons, I have not been persuaded by the Developer's claim, on any of the four issues, and I will dismiss the claim for statutory review".
The claim was dismissed.
