High Court to consider lawfulness of Inspectors’ treatment of new 10% BNG requirement in two linked section 288 challenges

09 Jul 2024

Public Law and Judicial Review, Planning and Environment, Local Government

Today begins a three-day hearing of two linked challenges under s 288 of the Town & Country Planning Act 1990 to Inspector decisions refusing planning permission for Green Belt residential development. The claims are brought by two housing developers, Vistry and Fairfax.

Robert Williams acts for the Secretary of State in both the Fairfax and Vistry Claims. Wayne Beglan and Olivia Davies act for Hertsmere Borough Council, the second defendant in the Fairfax claim.

The Vistry claim alleges that the Inspector erred in his application of national planning policy on the use of previously developed land (“PDL”). This ground of challenge raises the issue of when, if at all, it is appropriate to factor the PDL status of land into the very special circumstances balance; and whether this is a matter for the courts or decision-makers to determine.

Both the Vistry and Fairfax claims allege that the respective inspectors erred in their treatment of the new 10% Biodiversity Net Gain (BNG) requirement contained in the Environmental Act 2021 in circumstances where it was agreed that the requirement did not apply to the particular developments being determined.

The challenges come hot on the heels of the High Court judgment in Saredon Aggregates v SoS [2023] EWHC 2795, in which an Inspector was found to have unlawfully reduced the weight given to BNG because he wrongly thought that the 10% requirement actually applied to the development (in circumstances where it did not).