On Thursday last week we had a hearing. We were expecting one hearing but the court split the two issues in to two hearings. The second is later this month after which the judgement is reached.
The first hearing was a threshold for a permission hearing to decide if all the points are arguable or not. That is a low bar ie likely to proceed.
The second is a substantive hearing to see if the inspectors decision was ‘unlawful’ and/or ‘irrational’. This is a much harder thing to win.
If the decision is found to be unlawful and/or irrational, it is likely that the decision of the inspector will be quashed.
At the hearing on 28th September there were 3 grounds NRS were trying to get to the later hearing.
NRS were granted permission on the papers to hear oral argument at a substantive hearing on Ground 1 of the Claim relating to Biodiversity Net Gain. This was already agreed by the court. The allegation is that the Inspector retrospectively applied future requirements for BNG in his planning balance which it is said he ought not to have done and that it was unlawful. The substantive hearing is listed for 31 October – I think it will be in Birmingham. Eyre J described that ground as ‘just’ arguable. This Ground was not discussed at yesterday’s hearing.
Eyre J had decided on the papers that Ground 2 of the Claim was unarguable. This ground was to do with whether or not the Inspector approached the planning balance in s.38(6) of the Planning and Compulsory Purchase Act 2004 in an unlawful way. On the 28th September, the Claimant orally renewed that Ground before HHJ Jarman KC in the Administrative Court in Cardiff. Unfortunately, they were granted permission to proceed to oral argument on Ground 2. So, Ground 2 will now be argued at the substantive hearing on 31 October 2023 as well as Ground 1. The Judge said that he was granting permission having regard to the fact that this was a ‘low bar’ to have the argument heard more fully.
Ground 3 of the Claim has fallen away. This is because Eyre J refused permission on the papers, and the Claimant did not orally renew that Ground before HHJ Jarman on 28th September.
It is unfortunate that we couldn’t knock Ground 2 out as being unarguable on the 28th September, but overall, our Barristers opinion is that prospects remain relatively good that we can defend the Claim at the substantive hearing. Of course, the task, at that hearing, of showing that the decision was unlawful is a much bigger one than just demonstrating that the ground is arguable.
Each of the SoS, WCC, and us were represented and that will also be the case at the substantive hearing at the end of October.
- Mike Lord