Project Genesis Ltd v Secretary of State for Levelling Up, Housing and Communities [2024] EWHC 368 (Admin)

Jack represented the SoS throughout the proceedings in the High Court. The section 288 claim was brought on the basis that as the Minister had not undertaken a site visit it was wrong of him to “recalibrate” the weight attached to the landscape harm found by the Inspector after days of evidence and a lengthy, accompanied site visit. The Court rejected that submission. In doing so, Fordham J drew attention to practical difficulties if site visits were undertaken by Ministers to supplement the lengthy report of the Inspector and the extracts of the evidence prepared by officials. He noted at para 31:

“Mr Smyth is right to say that this would not – in reality – be the decision-maker getting in a car and driving or looking around. There are reasons why site visits are structured, with routes and precision and accompaniment. If it were needed, it needed to be done properly.”

The Judge also found that the Minister was entitled to disregard the proposed local fuel poverty fund which was included within the Unilateral Undertaking (UU). He found that this did not meet the CIL test. At para 55, he noted:

“The UU Schedule 8 scheme involved no direct supply of electricity or heat. It involved no discount for electricity or heat actually supplied. The households were not neighbouring to the development site; nor even in the close vicinity. They were not joining as a household would. Rather, they were to be making applications tested through the prism of fuel poverty eligibility criteria. This was in essence a self-levy (described as an arbitrary financial decision with no calculation basis in planning policy), to create a fund, distributed through a trust, with an application mechanism. It was a construct…The Inspector spoke of the financial contribution as an arbitrary financial decision and spoke of the planning obligation scheme as one without a planning policy basis, emphasising that households could be some distance away, and emphasising the implementation through the fuel poverty criteria and application mechanism (IR11.22). As a matter of planning judgment, and remembering that the ‘relationship’ between planning obligation and development must be “directly” related – and not therefore simply “indirectly” related – this planning obligation was, in my judgment, reasonably assessed as failing to meet the direct relationship test.”

At para 57, the Judge turned the argument on its head and asked: Would the UU – on the basis of this evaluation and these features – be an obligation which the planning decision-maker could require of the applicant as a planning condition or obligation? The answer was no.

Jack says:

This illustrates the difficulty developers face when trying to create or reformulate imaginative new benefits to maximise the prospect of obtaining planning permission. There is little sign of flexible or relaxed approach to the application of the CIL test by the Planning Court.

The Judgment provides a useful summary of the legal principles and guidance as to how decision makers ought to approach the issue of assessing the “directness” of the relationship between the obligation and the development itself.