A Planning Inspector's decision has been quashed as a result of wrongly assessing an appeal against future BNG legislative obligations not yet in force.
An Inspector upheld a council's refusal to grant permission for a sand and gravel quarry. This refusal was challenged by the applicant in the High Court, one of the grounds being that the Inspector had erred in law in the weight to be attached to biodiversity net gain obligations.
The High Court Judge concluded that the Inspector had reduced the weight to be attributed to the biodiversity net gain generated by the proposed development, purely because some of that gain would have been required in any event pursuant to the Environment Act 2021 (when the provisions come into force). The Court confirmed this approach is an error of law.
The Judgment specifically references the DEFRA consultation document which indicates that the BNG provisions, when they do take effect, will not apply to planning applications submitted or planning permissions granted before the provisions come into force.
This case recognises the position that for the time being at least, the Environment Act provisions relating to BNG are not a relevant consideration in the determination of a planning application or planning appeal. That being said, developers should look to assess the deliverability of BNG for sites intended to be brought forward once the Environment Act provisions have taken effect.
NRS Saredon Aggregates Ltd v Secretary of State [2023] EWHC 2795 (Admin)
"If the inspector's assessment of the weight to be given to the biodiversity net gain was based on an incorrect view of the law or involved taking account of a matter which was not properly a material consideration that would have been an error of law causing him to exercise his planning judgement on an incorrect basis"
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