Unfortunately we just heard about the Judicial Review outcome and it isn’t favourable.
The judge ruled that the Inspector should not have referred to future legislation and that was a legal error.
We can take comfort from the fact that 95% of his judgement is left unblemished and this can only help if and when we get to another Inquiry.
I have pasted below a note from our Barrister that give a great explanation of what happened.
What is the decision?
Very frustratingly, the decision is quashed on the basis of the Biodiversity Net Gain Ground (Ground 1). This was not quashed on the basis of Ground 2 (relating to the Inspector’s treatment of the Development Plan).
The essence of the point is that the Inspector erred by reducing the weight to the biodiversity net gain to be delivered on the basis that it was a future legislative requirement. In other words, the court has found that the Inspector wrongly reduced the weight on the basis that the scheme would be required to meet a future requirement. The Court has found this was an error of law.
This is because those legal requirements for BNG delivery are not yet in force (and have since been delayed until Jan 2024). He ought not to have said that, and accordingly, because the decision was “very finely balanced”, the Judge couldn’t be sure that the inspector would come to the same decision had the weight not been reduced (wrongfully) on BNG grounds.
Whilst it is very frustrating that the Inspector said this, in my view this is a narrow point – it relates only to the weight to be given to the BNG elements of the restoration scheme. Helpfully, Ground 2 relating to the approach the Inspector took to the development plan as a whole did not succeed which would have had wider ramifications including on how the inspector approached the question of compliance or conflict with the Development plan and the overall planning balance.
What this means is that the Judge will order that the decision be remitted to the Secretary of State for redetermination. This will likely mean another inquiry before a different inspector. Technically, it can mean that all matters are open for redetermination again.However, plainly, last time we had an experienced minerals inspector who fully considered the evidence including many of the points that we raised. Whilst it would be open to another inspector to come to a different view, we would be saying that only a very small part of his decision was infected by error, and consequently, the majority of the decision ought to be persuasive to another inspector and/or the inspector must have good reason to depart from Mr Normington’s decision.
That isn’t just up to us. I think we need to take a few days and see how the Secretary of State responds and if they will appeal this or not. I strongly suspect tat we will be back to a Public Inquiry in due course albeit on a different basis to the last.
This is a setback, no doubt, but we fight on. We are in the right here and we will keep keep on this campaign until we finally get this nailed!