Developer wins High Court statutory review challenge over highways impacts

The case was brought by Greystoke CB against both the Secretary of State for Communities, Housing and Local Government and Cherwell District Council.

Mr Justice Coppel said the case was an application for statutory review under s. 288 of the Town and Country Planning Act 1990 following the inspector’s decision to dismiss Greystoke’s appeal against Cherwell’s refusal of its application to develop business premises on agricultural land east of Junction 11 of the M40 in Oxfordshire.

Cherwell gave 15 reasons for refusing the application, most of which related to highways issues.

These included the proximity of an access roundabout to the M40, where it said severe congestion was likely, and air quality problems on the adjacent A422.

The inspector concluded on the issue of contributions towards mitigation: “In the absence of adequate details of the services or infrastructure on which the financial contribution would be spent, and up-to-date quantified evidence of the extent to which they are able to mitigate impacts, it has not been demonstrated that the proposed contribution is effective mitigation for the harm that would be caused as a result of the development.”

Adverse impacts of the proposal were not outweighed by the benefits, the inspector concluded.

Greystoke argued the inspector misinterpreted or misapplied sections 115-116 of the National Planning Policy Framework (NPPF) because he dismissed the appeal in circumstances where he had found the criteria in s116 of the NPPF not satisfied and should have considered the implications of this at the planning balance stage of his analysis.

It further argued the inspector failed to take account of the development's biodiversity net gain.

Coppel J said: “S115, read in isolation, would suggest that planning permission may be refused where significant impacts on highways capacity/congestion will not be appropriately mitigated.

“However, it is clear, and common ground, that s115 must be read together with s116. Hence, where it applies, s116 supplements s115 and provides that planning permission should not be refused where s115 is not satisfied but the relevant highways impacts are not severe, following mitigation, in the case of capacity/congestion, or unacceptable in the case of highway safety.”

He went on to say he did not agree with the Secretary of State's interpretation of s116 that a refusal of permission will only be "on highways grounds" where highways impacts are the sole basis for refusal of permission.

“It will be far from a common occurrence that highways impacts are the sole basis or reason for refusing planning permission and it is unlikely that the draftsman of the NPPF intended to confine s116 to that narrow situation,” the judge said.

The effect of s116 was not to require the inspector to ignore highways impacts when striking the planning balance.

How much weight to give to highways impacts remained a matter for the inspector.

HHJ Coppel explained: “The inspector should have asked himself whether he was intending to refuse planning permission on highways grounds and, if so, whether the threshold for highways impacts set by s116 was satisfied.

“The answer to those questions was ‘yes’ and ‘no' respectively. The inspector should then have taken into account that s116 provides that permission should not be refused on the basis on which he was intending to refuse it.”

He said this meant the decision letter must be quashed and the inspector required to reconsider his decision on a lawful basis.

Greystoke also won on the ground concerning biodiversity net gain, but HHJ Coppel said no additional relief resulted.

HHJ Coppel dismissed as academic a ground concerning procedural unfairness.

Mark Smulian