Wayne Ward & Anor v Secretary of State for Housing, Communities and Local Government & Anor

The Claimants seek to quash the decision dated 30 May 2023 of the Defendant’s Planning Inspector to dismiss their appeal against the Second Defendant’s refusal of planning permission for development described as “one residential unit and stable block” at land east of Coolham Road, West Chiltington, West Sussex (“the Site”).

There are three grounds of challenge. Grounds 1 and 2 concern the Inspector’s approach to water neutrality and its effect on the Arun Valley Special Protection Area (applying the requirements of regulation 63 of the Conservation of Habitats and Species Regulations 2017 (“the Habitats Regulations 2017”)). Ground 3 concerns whether the Inspector should have granted planning permission for the proposed stable block (making a split decision to grant planning permission for part of the proposed development applied for).

The Claimants were granted permission to proceed with their claim at an oral renewal hearing by HHJ Walden Smith on 16 January 2024. The scope of ground 2 was reduced from the pleaded case to focus on whether the Inspector erred in failing to address whether the planning appeal should be held in abeyance.

This judgment is structured as follows.

The Claimants applied for planning permission for “one residential unit and stable block” at the Site on 17 July 2018. The submitted plans identify the location of the proposed residential unit (on the northern part of the Site). Proposed elevation plans were submitted showing the appearance and scale of the proposed mobile home. The location of the proposed stable block shown on the proposed plans (on the western part of the Site) and details of the proposed elevations were indicated in the plans.

The existing use of the Site was indicated on the planning application form as being agriculture.

On 4 March 2019, the Second Defendant refused planning permission on the ground that the development was in an unsustainable location and was not readily accessible by sustainable methods of transport. This decision was made by the Second Defendant’s members against the recommendation of planning officers.

The Claimants appealed to the Planning Inspectorate on 19 May 2019. At the appeal stage, the Claimants were represented by experienced planning consultants (Green Planning Studio Limited since July 2019). A hearing was scheduled for June 2020 but was postponed due to the COVID-19 pandemic.

In their appeal statement, the Claimants submitted that the Site was in a sustainable location and that the development complied with the development plan and should be granted permission.

In December 2020, the Claimants moved onto the Site with their son. This fact was notified to the Planning Inspectorate in an email dated 23 December 2020. The explanation for the Claimants moving onto the Site was said to be necessitated by personal circumstances which were exacerbated by the pandemic. In the email, it was explained as follows:

In evidence (before the Inspector and the Court) those personal circumstances were explained in more detail. This evidence confirms the fact that Mrs Ward had undergone surgery on her ankle in 2020 which caused mobility issues. Further, the Claimants’ son, who was 9 years old when they moved onto the Site, has medical and developmental needs. He was receiving outpatient care from a local hospital and attending a local primary school.

The occupation of the Site by the Claimants differs from the proposed development. The Claimants are living in a touring caravan which is stationed on the southern part of the Site. A stable block was erected on the southern part of the Site (i.e. in a different location to the proposed development). I was told at the hearing that the stable was a temporary structure which is capable of being moved.

The rescheduled planning appeal hearing took place on 17 May 2022. The length of the delay in rescheduling this was due to the appeal requiring an in person hearing (as it was not suitable for a remote hearing).

The Inspector’s appeal decision (“DL”) was issued on 30 May 2023 (over a year after the hearing). This delay was due to the sequential submissions which took place after the hearing addressing the water neutrality issue which I discuss further below.

Before turning to the issue of water neutrality (which is the focus of grounds 1 and 2 of the claim), it is helpful to explain how the other planning issues were addressed by the Inspector.

In paragraph 6 of DL, the Inspector identified three main issues. These were:

On the first main issue, the Inspector found that the Second Defendant could not demonstrate a five-year supply of gypsy and traveller sites and that considerable weight should be attached to this factor (DL12).

On the second main issue, the Inspector considered that the Site was located in a sustainable location, given its small scale and the need for additional gypsy and traveller sites in rural locations (DL20).

Thus, the planning objections to the proposed development which had been raised by the Second Defendant in its reason for refusal were, on the Inspector’s reasoning, overcome.

However, by the time that the appeal was determined, the issue of water neutrality had become a material planning consideration. It is necessary to set out the background to this in some detail.

On 14 September 2021, Natural England (“NE”) issued a Position Statement for Applications within the Sussex North Water Supply Zone (“the NE Position Statement”). The NE Position Statement explained:

The guidance was updated in February 2022 to “expand upon and clarify” the version published in September 2021.

In March 2022, NE published a “frequently asked questions” guidance note. It explained water neutrality as: “For every new development, total water use in the region after the development must be equal to or less than the total water use in the region before the new development”. In response to the question: “Does the Statement apply to existing public water supply uses?”, it stated: “Existing water uses are not covered by the Statement as they are covered by the existing permissions and the abstraction licence which are being dealt with separately via Southern Water’s licence amendments. These existing uses can only be used to offset new development if they are supplied by

The Second Defendant drew the Claimants’ attention to the NE Position Statement by an email dated 14 February 2022. In a letter to the Planning Inspectorate dated 13 April 2022, the Second Defendant submitted that there was currently no evidence that the development could achieve water neutrality and therefore it could not be concluded with sufficient certainty that the development would not have a likely significant effect on the Arun Valley protected sites.

The Claimants responded by filing a Supplementary Appeal Statement which addressed the issue of water neutrality. Having referred to the NE guidance, the Claimants contended as follows:

The Claimants relied upon two appeal decisions in which, they contended, Planning Inspectors had adopted essentially the same approach for which the Claimants’ consultants were contending (i.e. that the status quo was preserved because the use was already taking place).

The Second Defendant’s response disputed this approach. It contended:

On 8 August 2022 (subsequent to the appeal hearing on 17 May 2022), the Inspector (through his case officer) sent an email to the parties with his further reflections on the water neutrality issue. He referred to the discussion which had taken place at the hearing about whether this issue could be addressed by condition and stated as follows:

In response to this direction, the Claimants’ representatives filed a Water Neutrality Statement on 11 August 2022. In that statement, the Claimants maintained their earlier position that their occupation of the Site prior to the publication of the NE Position Statement obviated the need for an appropriate assessment because the development would simply maintain the status quo with regard to water consumption. Nonetheless, the statement calculated that development would be water neutral because its total water usage would be the same (85.5L per person per day) as it was when the Claimants moved onto the Site in December 2020.

In paragraph 37, the Claimants’ Water Neutrality Statement submitted as follows:

The Second Defendant provided a response dated 23 August 2022 challenging the Claimants’ calculation of the baseline water usage with reference to the date on which they began to occupy the Site:

By an email dated 12 September 2022, the Claimants provided a further appeal decision dated 5 September 2022 said to support their approach to the water neutrality issue. This appeal decision (Hillside View) related to a gypsy site in the zone of influence of the Cotswold Beechwood Special Area of Conservation (CBSAC). The site had been occupied for six years and before restrictions applied. The Inspector found that the Council had no intention of enforcing against the use and accordingly the proposal did not add to the resident population and would have an overall neutral impact. He therefore concluded that the proposal would not cause any significant harm to the CBSAC.

On 16 November 2022, the Planning Inspectorate consulted NE for advice on the correct approach to take in the appeal. NE responded in a letter dated 7 December 2022:

The Claimants commented on NE’s consultation response in an email dated 9 December 2022.

The Inspector addressed the issue of water neutrality in DL paras 21-35.

His decision summarised the applicable legal framework in paras 24-26 as follows:

It is not suggested by the Claimants that the Inspector mischaracterised the legal framework or misunderstood it in any material respect. The above paragraphs are accepted as being an accurate encapsulation of the approach required under the Habitats Regulations 2017.

In applying this legal framework, the Inspector concluded:

The Inspector acknowledged that the Claimants had been residing on the Site since December 2020, prior to the publication of the NE Position Statement (DL27). He recorded their contention that the development would not increase water usage above the levels that existed prior to the publication of the NE Position Statement in September 2021 and therefore “their continued residence does not increase any water usage and would merely maintain the status quo” (DL28).

The Inspector discussed the appeal decisions relied upon by the Claimants (DL29-32) noting that two of the three decisions “preceded Natural England’s recent advice” (DL30) and that the more recent decision involved prior occupation of more than six years (DL31) and that Natural England had taken little, if any, part in the appeal process (DL32).

The Inspector concluded as follows (DL 33-35).

In his overall planning balance (DL41-44), the Inspector noted that although the development was otherwise acceptable in planning terms, allowing the appeal would be contrary to paragraph 180(a) of the NPPF (DL42) (as it then was; currently para 186(a)).

The Habitats Regulations 2017 transpose the requirements of Council Directive 92/EEC of 21 May 1992 on the Conservation of Natural Habitats and of Wild Flora and Fauna (“the Habitats Directive”). The Habitats Directive was first implemented in UK law by the Conservation (Natural Habitats etc) Regulations 1994 (SI 1994/2716). The 2017 Habitats Regulations continue in English law under s.2(1) of the European Union (Withdrawal) Act 2018. The Habitats Regulations were amended by the Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019. As the Court of Appeal noted in para 23 of CG Fry Limited v SSLUHC [2024] Civ 730, the Memorandum to those regulations made it clear that they were not intended to introduce any change in policy (paragraph 2.4).

The key provision for present purposes is regulation 63 of the Habitats Regulations 2017. It provides (so far as is material) as follows:

An exception to the obligation in para (5) arises under regulation 64, where the authority is satisfied that there are “no alternative solutions” and that there are “imperative reasons of overriding public interest” for the project to be caried out. It is common ground that this exception does not arise in the present case.

The Court of Appeal’s decision in R (Wyatt) v Fareham Borough Council [2023] PTSR 1952 at para 9 draws together key points of approach to the duty under regulation 63. For present purposes, the most material points are:

Wyatt concerned an unsuccessful challenge to the approach in NE’s nutrient budget calculation guidance. The specific point was the method of calculating water waste use per dwelling within the calculation set out in that guidance. In giving its judgment, the Court of Appeal made the following observations on approach which are relevant for present purposes:

The focus of ground 1 is the Inspector’s approach to water neutrality. In their pleaded case, the Claimants contend that the Inspector failed to “adequately and fully” address their case in respect of water neutrality. As pleaded, a central criticism was that the Inspector had simply adopted NE’s advice.

The focus of this ground of challenge was refined in written and oral submissions. Mr Rudd’s essential contention was that the Inspector had failed to appreciate that the Claimants’ contentions were not inconsistent with NE’s advice. Mr Rudd submitted that approach in the appeal decisions was compatible with NE’s guidance. He submitted that the fact that water use was in fact taking place on the Site in September 2021 (following from the commencement of occupation in the mobile caravan in December 2020) meant that the water use was “otherwise accounted for” (applying the phrase used by NE in its representations to the Planning Inspector dated 7 December 2022) when NE’s guidance was published in September 2021. The concept of “otherwise accounted for” was, he contended, consistent with a use which was in fact taking place when the guidance was published.

Mr Rudd submitted that the Inspector gave no reasons for adopting a restrictive approach to the meaning of “otherwise accounted for” by treating it as meaning that the use taking place had to have acquired immunity from planning control. This part of Mr Rudd’s argument focuses on the first sentence of para 35 of DL where the Inspector indicated that the development does not “enjoy planning permission” and “neither is it immune from planning control”.

On behalf of the Secretary of State, Mr Lewin contended that the Inspector’s approach was consistent with NE’s advice to the Planning Inspector read fairly and as a whole. He emphasised in particular the second sentence of NE’s response to the Inspector on issue 1 (see para 33 above) which stated that the “impacts of currently permitted” water usage are not covered by NE’s guidance. He submitted that this was a strong indicator that the Inspector’s approach was consistent with NE’s recommendation.

Moreover, Mr Lewin stressed that NE was advising the Inspector (as the competent authority). The decision of the competent authority was one which the Court would not ordinarily interfere with other than on Wednesbury grounds. Applying the legal framework summarised in para 9 of Wyatt, Mr Lewin submitted that the Court needed only to be satisfied that the Inspector’s approach was within the reasonable range of approaches lawfully open to the Inspector (as the competent authority).

Mr Lewin also submitted that the Inspector had sufficiently addressed the Claimant’s case and was not obliged to follow the decisions of previous Inspectors (applying North Wiltshire District Council v Secretary of State for the Environment (1992) 65 P&CR 137 at 145).

It is clear in my judgment that the Inspector grasped the argument which the Claimants were advancing. The Inspector encapsulates it accurately in DL 27 and 28 – namely that because they were already occupying the Site, there was no increase in water usage from the development. It would simply maintain the status quo.

It is clear from the chronology of the appeal process that the Inspector grappled with this point with some care. He issued a direction after the hearing (on 8 August 2022) asking for a water neutrality statement to be prepared and indicating that “it is not sufficient to take the stance that, as the matter is retrospective, the status quo is being maintained and the need for such a statement is obviated”.

That fairly put the Claimants on notice that the Inspector was minded to the view that a mitigation strategy would be needed.

The Claimants’ response was to maintain their position. In form they submitted a water neutrality statement. In substance, they continued to contend that there would be no impact on the status quo.

The Inspector consulted NE on whether the Claimants’ approach was correct. It is fair to acknowledge that he did not receive an unequivocal answer from NE to this enquiry. However, I agree with Mr Lewin’s submission that, read as a whole, the thrust of NE’s guidance was that the competent authority has to decide whether the proposed residential occupancy has already been granted planning permission (which, I interpose it plainly had not) or whether it was “otherwise accounted for”. In the second sentence of NE’s response there is an indication (albeit not conclusive) that the focus should be on the impacts of water use “not currently permitted”.

In the light of NE’s response, I do not consider that the Inspector’s approach of treating “otherwise accounted for” as akin to “immune from planning control” was outside of the range of reasonable approaches open to him. It reflected the Inspector’s judgment (as the competent authority) as to how NE’s guidance best applied to the circumstances of this case.

The Inspector had well in mind that in the three appeal decisions relied on long standing uses (which did not have immunity from planning control) had been taken into account as part of the baseline for assessing impact in those cases. However, those cases were factually distinguishable from the present case because of the long standing nature of occupation in each such case. Moreover, the precise circumstances of the relationship of the development with the protective habitats differed in each case. The Inspector acknowledged that he was taking a different approach from the previous Inspectors but grounded his approach in the specific circumstances of this case.

In my judgment, the Inspector gave an adequate explanation of the approach that he was adopting. He understood and addressed in sufficient detail the Claimant’s case and his approach cannot be characterised as an irrational application of the guidance given to him by NE.

In my judgment, the Inspector’s approach to water neutrality was consistent with NE’s guidance and represented a lawful approach to his duties under regulation 63(5) of the Habitats Regulations 2017.

I therefore reject the Claimants’ first ground of challenge.

The second ground of challenge is that it was unlawful for the Inspector not to address the Claimants’ request in paragraphs 37 and 51 of the Water Neutrality Statement that the appeal should be held in abeyance.

It is common ground that this request was not referred to in the DL.

Mr Rudd submits that, once it had become clear to the Inspector that water neutrality was the only issue preventing the grant of planning permission, the abeyance request became an obviously important part of the Claimants’ case which needed to be addressed. The failure to address it was, he submitted, a flaw in the Inspector’s approach which prejudiced the Claimants.

Mr Rudd also sought to draw support from the general guidance published by NE in September 2021 which supported decisions on planning applications awaiting the production of a water neutrality strategy (as discussed in para 21 above).

Mr Lewin submitted that this request to hold the appeal in abeyance was not a principal important issue and so the Inspector was not obliged to give reasons addressing it.

Mr Lewin also submitted that because a residential use was taking place, holding the appeal in abeyance (and thereby, he submitted, practically enabling the continuing use of water from the unauthorised use) would be contrary to the Habitats Regulations 2017.

As I have said, it is common ground that there is no indication in the Inspector’s decision (or otherwise) as to how the abeyance request was considered.

The legal approach to the duty to give reasons is encapsulated by the House of Lords in South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953 at para 36. The duty extends to addressing the “principal important controversial issues”. The reasons need refer only to the main issues in dispute, not every material consideration,

In considering whether the request for abeyance needed to be dealt with, it is necessary to reflect realistically on how the point was raised. The request to hold the appeal in abeyance in itself did not indicate what (exactly) the Inspector was being asked to do. The proposition that the appeal should be held in abeyance begs a number of questions. It was not clear from the request how long it was being suggested the appeal should be held in abeyance. It was not clear from the request what should happen if a mitigation scheme did not materialise. There was an inherent difficulty (not addressed in the request) of what would happen if circumstances changed in the period that the appeal was being held in abeyance. It was unclear from the request how the rationale for holding the appeal in abeyance would be communicated to the parties. For instance: (a) what would they be told about the stage of the analysis that the decision maker has reached to decide to hold the matter in abeyance? (b) would the Inspector (for example) be expected to publish some kind of interim decision indicating that he was minded to grant planning permission subject to mitigation or refuse planning permission only on grounds of water neutrality?

The answers to these questions were not obvious or necessarily straightforward. The Claimants did not advance any explanation of what “hold in abeyance” might have meant in practice or grapple with the questions which such a request would necessarily raise as to how to manage the decision making process if such a scenario were to be followed.

In raising this point, the Claimants did not formulate a clear proposition which the Inspector could consider and address in his decision.

I accept that, as it turned out, water neutrality can be seen to be the only unresolved planning issue in the case. However, that this was so only became apparent on the publication of the Inspector’s decision. Had the Inspector tried to follow the course suggested by the Claimants (so far as that course is capable of being understood), it is unclear how it would have become apparent to the Claimants and the Second Defendant (as local planning authority) that such a stage in the analysis had been reached. The determination of the appeal could have simply been deferred and the fact that water neutrality was the only unresolved issue may have remained obscured whilst the appeal was held in abeyance.

Moreover, there was no certainty (as articulated in the Claimants’ request) how long this period of abeyance should be for. It was unclear whether in this indeterminate period the Claimants or the Second Defendant could know what the status of the appeal was or what stage the Inspector’s analysis had reached.

In short, it was unclear that the Claimants’ proposition was workable in practice.

I acknowledge that it would have been more satisfactory if the Inspector had explained why he was rejecting the Claimants’ suggestion (or tried to flush out these inherent uncertainties and decide if there could be a workable proposition behind the request). However, I do not consider it was unlawful (applying the test in South Bucks DC v Porter (No 2) at para 36). for the Inspector to decide the appeal without expressly addressing this proposition. I accept Mr Lewin’s primary submission that this was not a principal important issue which needed to be addressed (given the uncertain way in which it had been raised).

On the same basis, I do not accept Mr Rudd’s argument that the request to hold the appeal in abeyance (without more detail) gave rise to a mandatory material consideration as explained by the Supreme Court in R ( Samuel Smith Old Brewery) v North Yorkshire CC [2020] PTSR 221 at para 32. I do not consider that this was a consideration which was expressly or impliedly identified in the applicable legislation or policy or that it was “so obviously material” as to require direct consideration.

I do not consider that the Claimants’ reliance on the general guidance of NE in its 2019 Position Statement adds anything to their argument. That guidance was not specific to the circumstances of this case. It did not have in mind cases where use had already commenced on the site. By contrast, NE had given specific guidance to the Inspector in respect of the appeal proposal which had not suggested or contemplated that the appeal should be put in abeyance.

In my assessment, ground 2 does not succeed because the proposition that the appeal should be put in abeyance was not sufficiently articulated to make it a practical suggestion. In this context, the Inspector’s failure to address it was neither unlawful nor a breach of his duty to give reasons for his decision.

Given that conclusion, it is unnecessary for me to address the question of prejudice.

I make two further observations in the light of the way this point was argued.

First, I observe that the Claimants may well have greater visibility of their planning position with the publication of the Inspector’s decision than they would have had if the appeal had been held in abeyance. It is now a matter of public record that, as at 30 May 2023, the only planning obstacle with their development proposal (on the Inspector’s analysis) was the issue of water neutrality. That may be of real assistance to them even if it means that they need to make a further planning application to secure a planning consent once this issue becomes resolvable. By contrast, holding the proposal in abeyance, would not necessarily inform them how the Inspector had resolved the other issues in the case, why the determination of their appeal had been delayed, what the delay meant and when it might reasonably be expected to be resolved.

Second, I do not accept Mr Lewin’s argument that to hold the appeal in abeyance would conflict with regulation 63 of the Habitats Regulation 2017.I do not agree that delaying the determination of the appeal would be the equivalent of granting a consent in law or in practice. Mr Lewin’s argument to that effect was advanced without authority to support it. I do not accept that it would necessarily conflict with the Habitats Regulation 2017 to delay a decision to enable mitigation to be addressed. The fact that some use was taking place on the site which was not lawful does not change this analysis. Delaying the decision on the appeal does not authorise the unlawful use. The delay’s purpose would have been to allow for mitigation measures to be identified. I see no necessary conflict with the Habitats Regulation 2017 and reject this part of Mr Lewin’s argument.

The third ground of challenge relates to whether the Inspector should have made a split decision and granted planning permission for the proposed stable block.

The only discussion of the stable block in DL is contained in para 43 which states as follows.

There is a dispute between the parties as to whether a request for a split decision was made to the Inspector.

It is common ground that no request was articulated in the submissions prepared by the Claimants’ experienced planning consultant.

However, in his oral submissions, Mr Rudd on behalf the Claimants relied on paragraph 20 of Mr Ward’s supplementary witness statement (undated but submitted with the Supplementary appeal statement in April 2022). It stated as follows. “I need a place to stable my horses, the Appeal Site is perfect, even if permission is not granted for the pitch I will seek permission for the stabling of horses as I have no other site for that”.

The applicable law as to the making of split decisions is as follows.

The focus of the Claimants’ written submissions on ground 3 was that the Inspector was aware that he could grant a split decision. Mr Rudd submitted that, in addressing this issue in paragraph 43 of DL, the Inspector wrongly focused on the stables as they existed rather than the proposal for which the stables which was the subject of the planning application.

In oral submissions, Mr Rudd relied upon the paragraph of Mr Ward’s supplementary witness statement which is referred to above as constituting a request to make a split decision.

Mr Lewin submitted that there was no request. He relied on the fact that the request was not articulated in the Claimants’ submissions (made by their experienced planning consultants in support of the appeal). He contends that Mr Ward’s witness statement did not contain any clear request for the Inspector to make a split decision.

In the absence of any request, Mr Lewin submits there was no obligation on the part of the Inspector to make decision.

Further, Mr Lewin submits that there is nothing in paragraph 43 that renders the decision unlawful.

As pleaded, no reliance was placed on any request to the Inspector to make a split decision.

It is common ground that there is no explicit request in the submissions written by the Claimants’ planning consultant.

I reject Mr Rudd’s reliance in oral submissions on the passage of Mr Ward’s witness statement as constituting a sufficiently explicit request to the Inspector to make a split decision. The wording of this passage is unclear. It says, I “will seek permission”. It reads as a statement of future intention rather than a specific request to the Planning Inspector to make a split decision.

I consider that this case is similar to Langton Homes where no request was made. In those circumstances, there is no requirement on the Inspector to address the issue.

Moreover, I do not consider that the discussion in para 43 of DL renders the Inspector’s approach unlawful. It is true that in this paragraph the Inspector is commenting on the stable as it exists on the site. As Mr Rudd submitted, he did not have any application for such development before him. However, I do not consider that this paragraph provides a legal foundation for the contention that the Inspector was required to address whether a split decision should have been given for the stable block as proposed. As no clear request was made for him to do so, I consider that there was no legal error in his failure to address this.

I therefore reject ground 3.

I have rejected all three grounds of challenge. This claim is dismissed.

I express sympathy for Mr and Mrs Ward’s experience of the planning process in this case. Their application for permission was made over 5 years ago. They were refused planning permission by the Second Defendant against officer recommendation. In the meantime, the pandemic caused delays and during those delays an unexpected complication (water neutrality) arose which required a strategic solution – which, I was told, is not yet in place. Nevertheless, the Inspector’s task was to determine the appeal taking account of the circumstances as they existed at the date of his decision and based on the evidence before him. I have concluded that he did so lawfully.

I thank Counsel for their helpful oral and written submissions.