What counts as a benefit of development, according to the High Court and PINS

A very encouraging statement was recently issued by a senior planning judge, the Hon. Mr Justice Holgate regarding benefits of development.  In a recent judgment on the lawfulness of an appeal Decision Notice (DL) he noted:
“It is sometimes suggested that where a development makes provision for something which is required by a policy or by legislation, that cannot be regarded as a benefit at all. So, for example, DL 49 of the Fairfax decision states: “…measures that do no more than ensure compliance with development plan policies cannot be benefits.” There is no legal principle which supports statements of that kind.” (paragraph 150 in the Judgment Fairfax Acquisitions v SoS [2024] EWHC 2088 (Admin))

Wow. “There is no legal principle which supports statements of that kind.”  In other words, the planning Inspector in the above appeal decision was wrong in law to discount benefits of development just because they are required by policy. In this case, it was the benefit of biodiversity net gain (BNG). The same principle applies to all sorts of benefits, for example the much greater energy efficiency of new housing compared to older housing stock, or the provision of public open space and many other routine benefits of development. They may be necessary in order to comply with development plan policies, but they still count as 'benefits' of development.

It comes down to the distinction between facts and opinion. A fact is a fact. It’s not up for discussion. Admitedly, what you do with the fact, how you weigh it up, is a matter of opinion and at the decision maker’s discretion. But nevertheless a benefit is a benefit. Decision makers are not allowed to unilaterally change the meaning of words.

This legal basis is set out at the start of Mr Justice Holgate's High Court Judgment, in paragraph 8 where he quotes one of the key Judgments in planning law:

“what was said by Lord Hoffmann in Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759 at p.780 F-H: “The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority."

Focusing on the legal issue of what constitutes a material consideration in this case, Mr Justice Holdgate notes in paragraph 153, “But as the name and definition of BNG indicates, that term refers to an improvement in biodiversity. That goes beyond offsetting the adverse impacts of a development scheme. It increases biodiversity in order to help redress a general national problem, which is not caused by the development proposed. On any view, that would be a benefit of the proposed scheme. It is difficult to see how rationally anyone could say otherwise.”

It’s important to note this would not apply if the biodiversity measures were to mitigate harm. Proposals to offset a loss caused by the development do not qualify as ‘benefits’. Mitigation is in a different category altogether.

PINS internal guidance on counting (or not discounting) benefits

I find it frustrating that so many decision makers routinely discount benefits of development as merely complying with policy. Why do they so easily bat them away as if they don't matter?

A key pillar of planning law is that words are defined by the courts, but planning judgments are for the discretion of the decision maker. So while the law states that benefits are a material consideration, how much weight a decision maker gives to those benefits is a matter entirely at their discretion. And that’s the rub.

In PINS's Inspector Training Manual it notes under the section 'The approach to decision-making':

“The parties may refer to wider benefits in support of a proposed scheme including social, economic and environmental benefits. Some of these benefits will only be temporary lasting for the duration of construction works while others will be retained permanently. The benefits could be specific to the proposed scheme (for example the provision of a community centre or works to address existing highway safety) or they could be more general (for example construction jobs) meaning that the same benefits could apply to any proposed scheme that is similar in size or nature.

More general benefits should not be routinely discounted as they will add support in favour of a proposed scheme. However, the level of detail provided may affect the weight that can be attached, and each benefit will need to be considered on a case by case basis.”

For a copy of the Inspector Training Manual, google Zack Simon's post on LinkedIn on the subject from February 2024. But beware the issues in quoting it as discussed in the comments below his post and don't get on the wrong side of an Inspector by telling them how to do their job.

It’s encouraging PINS instruct Inspectors, “More general benefits should not be routinely discounted as they will add support in favour of a proposed scheme.” It’s unfortunate that this is negatively worded, to not discount general benefits. It's also a shame the legal Judgment above is likewise negatively worded.

Those making a planning case would be wise to remind Inspectors that a benefit is a benefit even if it is one required by planning policy. It's also worth applicants' and appellants' time to go on to explain the benefit in some detail in order to provide the decision maker with evidence to use when weighing up how important that benefit is.