Greystoke CB Limited v Secretary of State for Communities, Housing and Local Government & Anor [2026] EWHC 1997 (Admin)

[2026] EWHC 1997 (Admin)Case No AC-2025-LON-002873
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Venue Royal Courts of Justice,Date 31 July 2026
Strand,
London,
WC2A 2LL
Before
MR JUSTICE COPPEL
Between
GREYSTOKE CB LIMITEDClaimantDavid Elvin KC (instructed by Weightmans LLP) for ClaimantRichard Moules KC and Nick Grant (instructed by Government Legal Department) for First Defendant for The Second Defendant was not represented for The Interested Party was not representedHearing Hearing dates: Tuesday 16 June 2026
Approved JudgmentThis judgment was handed down remotely at 10am on Friday 31 July 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

The Claim:

[1]This is an application for statutory review pursuant to s. 288 of the Town and Country Planning Act 1990 (“TCPA”) in respect of a decision dated 22 July 2025 of an Inspector appointed by the First Defendant (“the Inspector”, “the Secretary of State”), to dismiss the Claimant’s appeal against the refusal by the Second Defendant (“the Council”) of its application for planning permission for the development into business premises of agricultural land east of Junction 11 of the M40 and southwest of Huscote Farm, Banbury, Oxfordshire, OX17 2BH.[2]Permission for the application was granted by Mould J on 24 March 2026 on Grounds 1, 2 and 4 of the Claimant’s pleaded claim.

Factual background

[3]The Claimant’s application for planning permission was described in summary as being for:
“Outline planning application for the construction of up to 140,000sqm of employment floorspace (use class B8) with ancillary offices and facilities and servicing and infrastructure including new site accesses. Internal roads and footpaths, landscaping including earthworks to create development platforms and bunds, drainage features and other associated works including demolition of the existing farmhouse.”
[4]The application was refused by the Council on 26 March 2024. No less than 15 reasons were given for the refusal. Highways-related objections to the Scheme featured prominently:
“4. The proximity of the access roundabout to M40 Junction 11 is likely to lead to severe congestion and potential safety issues arising from queuing on the M40 off slip. The proposal is therefore contrary to policies SLE1 and SLE4 contained within the Cherwell Local Plan 2011-2031 Part 1 (CLP 2031 Part 1), saved policy TR1 contained within the Cherwell Local Plan 1996 (CLP 1996) and Government guidance within the National Planning Policy Framework. 5. Any further development around Junction 11 of the M40 would add to the severe congestion and air quality problems on the A422, particularly along Hennef Way. This development does not demonstrate how it would mitigate its impact on these issues through adequate sustainable travel connections or by highway improvements. The proposal is therefore contrary to policies SLE1 and SLE4 contained within the Cherwell Local Plan 2011-2031 Part 1 (CLP 2031 Part 1), saved policies TR1 and ENV7 contained within the Cherwell Local Plan 1996 (CLP 1996) and Government guidance within the National Planning Policy Framework. 6. Safe and suitable operation of affected highway junctions has not been demonstrated by use of a suitable analysis tool. It has been agreed with the Applicant’s transport consultant and National Highways that microsimulation modelling (such as VISSIM) is required to accurately represent the flow of vehicles at all primary local junctions and the interaction between them. Without agreed results of such analysis and resultant appropriate mitigation, the proposal is contrary to policies SLE1, SLE4 and INF1 contained within the Cherwell Local Plan 2011-2031 Part 1 (CLP 2031 Part 1), saved policy TR1 contained within the Cherwell Local Plan 1996 (CLP 1996) and Government guidance within the National Planning Policy Framework.”
A range of other matters were relied upon, including the adverse impact of the Scheme upon landscape, ecology and air quality.[5]The Claimant appealed to the Secretary of State under s. 78 of the TCPA and an inquiry was held over nine days between 4 and 20 February 2025 (“the Inquiry”). At the Inquiry, the Council abandoned one of its highways objections, which had been set out in §4 of its refusal of the planning application, and various other objections. In light of what remained in dispute, the Inspector identified the main issues as follows:
“• whether or not the proposed development is in a suitable location with regard to local and national policies for employment sites, need, sustainable transport and accessibility to services and facilities; • the effect of the proposal on the character and appearance of the site and surrounding area; • the effect of the proposal on the operation, capacity and safety of the highway network, with particular regard to junction 11 of the M40, the A422 and the access roundabout; • whether the proposal would comply with national policy which seeks to steer new development away from areas at the highest risk of flooding; and • whether the proposal would make suitable provision for infrastructure.”
[6]The highways-related issues required the Inspector to consider (inter alia) §§115-116 of the National Policy Planning Framework (“NPPF”): “115. In assessing sites that may be allocated for development in plans, or specific applications for development, it should be ensured that: a) sustainable transport modes are prioritised taking account of the vision for the site, the type of development and its location; b) safe and suitable access to the site can be achieved for all users; c) the design of streets, parking areas, other transport elements and the content of associated standards reflects current national guidance, including the National Design Guide and the National Model Design Code; and d) any significant impacts from the development on the transport network (in terms of capacity and congestion), or on highway safety, can be cost effectively mitigated to an acceptable degree through a vision-led approach. 116. Development should only be prevented or refused on highways grounds if there would be an unacceptable impact on highway safety, or the residual cumulative impacts on the road network, following mitigation, would be severe, taking into account all reasonable future scenarios.” a) sustainable transport modes are prioritised taking account of the vision for the site, the type of development and its location; b) safe and suitable access to the site can be achieved for all users; c) the design of streets, parking areas, other transport elements and the content of associated standards reflects current national guidance, including the National Design Guide and the National Model Design Code; and d) any significant impacts from the development on the transport network (in terms of capacity and congestion), or on highway safety, can be cost effectively mitigated to an acceptable degree through a vision-led approach.[7]By the end of the Inquiry, the Claimant and the Council remained in dispute about whether the proposed development would give rise to an unacceptable impact on highway safety (within §116 of the NPPF). This issue concerned the effect of development on junction 11 of the M40. It was determined in favour of the Claimant by the Inspector, who decided that “the slip road queue lengths [at that junction] are predicted to be within suitable limits and are not anticipated to cause an unacceptable safety issue” (Decision Letter (“DL”), §72).[8]There also remained a dispute about whether the impact of the proposed development on the road network would be “severe”, the other criterion set out in §116 of the NPPF, which concerned the risk of increased congestion within Banbury and in particular along the A422 Hennef Way and Southam Road. The Inspector again agreed with the Claimant, deciding that the likely impacts would be “significant” but not “severe” (DL, §78).[9]This meant, however, that mitigation of highways impacts was required by §115d of the NPPF. The Claimant had proposed a strategic transport contribution of £907,709, which had originally been requested by the Oxfordshire County Council, as a contribution towards highway improvements to relieve congestion on Hennef Way. An analogous contribution had been secured from the developer of “Frontier Park”, a nearby development of business premises. The Inspector directed himself that it was necessary that the Claimant’s proposed development mitigates against the traffic that was predicted to be generated by it. However, “no specific scheme of mitigation works has been proposed and, consequently, it is not clear if any provided mitigation would be effective” (DL, §79). The Inspector concluded on the issue of mitigation (DL, §83):
“In the absence of adequate details of the services or infrastructure on which the financial contribution would be spent, and up-to-date quantified evidence of the extent to which they are able to mitigate impacts, it has not been demonstrated that the proposed contribution is effective mitigation for the harm that would be caused as a result of the development.”
[10]The Inspector summarised his conclusions on highways issues as follows:
“86. Traffic queues on the M40 slip road are predicted to be within acceptable limits when guidance on average seed runs is adopted, notwithstanding the outcomes of individual seed runs. The proposal is therefore not predicted to have a significant adverse impact on this part of the strategic road network. The design of the new accesses and link road are matters that could be satisfactorily addressed at reserved matters stage, such that the safety of road users using the A361 would not be affected. Whilst the residual cumulative impact of the proposal on parts of the local road network would not be severe, it would result in some significant additional congestion within Banbury, notably at particular junctions on Southam Road and Hennef Way, which are agreed to require mitigation. However, I have found that there is insufficient certainty that that adequate mitigation could be provided and be sufficiently effective. 87. Taken together, the proposal would have an adverse effect on the operation and capacity of the highway network, with particular regard to the A422 Hennef Way and Southam Road. The proposal would therefore not accord with policies SLE1 and SLE4 of the [Cherwell Local Plan 2015], TR1 of the [Cherwell Local Plan 1996] and the [NPPF]. Together, these policies require proposals to ensure that any significant impact on the road network in terms of capacity and congestion can be mitigated to an acceptable degree.”
[11]On the other main planning issues, the Inspector decided as follows: i) There was a demonstrable need for the proposal, which was in a suitably accessible location, in accordance with various aspects of policies set by the Local Plan. However, the proposal did not fully comply with the locational requirements of policy SLE1 of the Cherwell Local Plan 2015, due to not being located within the built-up limits of Banbury (DL, §§13, 38). ii) On landscape, the proposed development would cause some landscape harm (DL, §48). iii) On flooding, the proposed development would be safe for its lifetime and would not lead to increased flood risk elsewhere (DL, §93). iv) On infrastructure, various improvements and mitigations would be secured, including in relation to open space, drainage, air quality, bin collection and bus services (DL, §§94-98). However, the proposed highways contribution did not give sufficient certainty as to what the contribution would be spent on and its effectiveness. This proposal failed the tests in reg. 122 of the Community Infrastructure Levy Regulations 2010 (SI 2010/948), which provides that a planning obligation which a developer proposes to enter into may only be taken into account as a reason for granting planning permission for a development if the obligation is necessary to make the development acceptable in planning terms, is directly related to the development and is fairly and reasonably related in scale and kind to the development (DL, §99). v) On heritage, there would be limited harm caused by loss of ridge and furrow earthworks and very limited harm caused by loss of Huscote Farm farmhouse (DL, §§100-101). vi) On ecology, there would be a biodiversity net gain (“BNG”) of 23% for habitats and 10% for hedgerows and tree lines (DL, §103).[12]The Inspector analysed the planning balance and summarised his reasons for dismissing the appeal in §§104-108 of the DL:
“104. Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires that applications for planning permission must be determined in accordance with the development plan unless material considerations indicate otherwise. The [NPPF] is a material consideration. In assessing harms and benefits, the following scale is used; substantial, significant, moderate, limited. 105. In terms of harms, in the absence of an identified suitable mitigation scheme, the impacts on the highway network in terms of capacity and congestion, with particular regard to Hennef Way and Southam Road, cannot be satisfactorily addressed. This matter attracts substantial weight. The conflict with the locational aspects of policy SLE1 as a result of the site not being within the built-up limits of Banbury attracts significant weight. Landscape and visual harm would be caused, albeit that this would be highly localised, such that I afford this moderate weight. Heritage harm, caused principally by the loss of ridge and furrow, is limited. 106. Turning to the benefits, the proposal would meet the distinct locational need for smaller sized units in the shorter term, generating some 1,838 full time equivalent permanent direct jobs and contributing to the local economy both directly and indirectly. The combined economic benefits would be substantial. In terms of accessibility, the site is in a suitable location for the reasons given above, and there are no reasonably appropriate alternative sites, such that this attracts limited weight in support of the proposal. The contribution towards improved bus services would potentially benefit the wider public, attracting limited weight, but other infrastructure and service obligations are necessary to mitigate adverse impacts from the development and attract no weight. 107. Drawing together the harms and the benefits, the adverse impacts of the proposal are not outweighed by the benefits. The proposal would conflict with the identified development plan policies and with the plan as a whole, and there are no material considerations to indicate a decision other than in accordance with it. Even if the locational policies of the LP were deemed out of date such that the tilted balance were to be engaged, my conclusion would remain unaltered. 108. For the reasons given above the appeal is dismissed.”

The grounds of challenge

[13]The grounds of challenge to the Inspector’s decision to dismiss the appeal are in short: i) Ground 1: the Inspector misinterpreted or misapplied §§115-116 of the NPPF because he dismissed the appeal essentially because of the highways impact of the proposed development, which was the most important factor in the planning balance, in circumstances where he had found the criteria in §116 of the NPPF not to be satisfied. The Inspector should have considered the implications of §116 at the planning balance stage of his analysis. ii) Ground 2: the Inspector acted in a procedurally unfair manner when he rejected the Council’s case that the criteria in §116 for refusal of planning permission on highways grounds were satisfied but then proceeded to refuse planning permission in reliance upon §115d, when it had never been the Council’s position that this provided a separate and distinct basis for refusing permission. iii) Ground 4: the Inspector failed to take account of the development’s BNG when assessing the planning balance. This was a mandatory material consideration which supported the grant of permission.

Legal principles

[14]There was no dispute between the parties as to the handful of legal principles which were relevant to the assessment of the Inspector’s decision. These were in summary: i) Inspectors’ decision letters are to be construed in a reasonably flexible way and not legalistically. They are written principally for the parties who know what the issues are between them and what evidence and argument has been deployed: St Modwen Developments Ltd v Secretary of State for Communities and Local Government [2017] EWCA Civ 1643, [2018] PTSR 746, §§6(1) and 7. ii) The interpretation of planning policy is a matter of law for the courts to determine. Planning policy is to be interpreted objectively in accordance with the language used and in its proper context: St Modwen, §6(4). The application of planning policy is a matter of judgment, subject to review on conventional public law grounds. However, a failure properly to understand and apply relevant policy will constitute a failure to have regard to a material consideration or will amount to having regard to an immaterial consideration: St Modwen, §6(4). iii) If a policy is referred to expressly in a planning decision the starting point is that that policy was properly understood and taken into account, and it is for the claimant to identify sufficient ‘contra-indications’ to displace that presumption: Jones v Mordue [2016] 1 WLR 2682, §28. iv) The principles of natural justice require that a party to a planning appeal is entitled(a) to know the case he needs to meet and(b) to have adequate time to make submissions and adduce evidence in response: Secretary of State for Communities and Local Governmentv Hopkins Developments Ltd [2014] EWCA Civ 470, [2014] PTSR 1145, §47. However, a party will be taken to know of issues of which it ought reasonably to have been aware: Hopkins Developments at §§52, 69.

Ground 1: misinterpretation/misapplication of the NPPF

[15]There is no challenge to the Inspector’s conclusions, in §§86-87 of the DL(a) that the proposed development would cause significant additional congestion within Banbury, which required mitigation,(b) that it had not been shown that adequate mitigation would be provided, and(c) that this constituted a breach of Local Plan policies and of the NPPF (which I understand to be a reference to §115d of the NPPF).[16]The Inspector correctly recorded, in §104 of the DL, that an application for planning permission must be determined in accordance with the Local Plan unless material considerations indicate otherwise. Consistent with that self-direction, it is clear from §107 of the DL that conflict with the Local Plan, both in relation to highways (to which he accorded substantial weight) and location (to which he accorded significant weight) were key to the dismissal of the appeal. The Inspector concluded that there were no material considerations to indicate a decision other than in accordance with the Local Plan.[17]The short point made by the Claimant under Ground 1 is that §116 of the NPPF was a highly material consideration, which indicated a decision other than in accordance with the Local Plan, but which the Inspector left out of account. Namely that development should not be refused on highways grounds in circumstances where, as he had decided, it would not cause an unacceptable impact on highway safety or severe impacts on the road network. The Inspector applied §116 earlier in the DL, reaching conclusions in accordance with the Claimant’s position, but then had failed to apply §116 at the critical, planning balance, stage of the DL.[18]This ground of challenge turns on whether the Inspector decided to refuse development “on highways grounds”. The Claimant submitted that the refusal was on highways grounds because highways considerations were, in the Inspector’s view, the most significant factor counting against the grant of permission (and the only factor given “substantial” weight). In his oral submissions, Mr Elvin KC for the Claimant also characterised the congestion impact of the proposed development as “the key point” weighing against the grant of permission, and “the dominant factor” against allowing the appeal.[19]The Secretary of State submitted that the Inspector’s refusal was not “on highways grounds” and hence §116 did not need to be considered at the planning balance stage because the refusal was not solely on highways grounds but rested on a broader basket of considerations, including locational harm, landscape and visual harm and heritage harm. If the Claimant’s approach were correct, it was submitted, then §116 would have the effect of requiring decision-makers either to ignore non-severe adverse traffic impacts in the planning balance or to not attribute significant weight to those impacts, when (as in this case) they could be an obviously material consideration and when it is well-established in planning law that the weight to be given to material considerations is for the decision-maker alone, subject only to rationality challenge.[20]In my judgment, Ground 1 is well-founded, for the following reasons.[21]§115, read in isolation, would suggest that planning permission may be refused where significant impacts on highways capacity/congestion will not be appropriately mitigated. §115 applies equally to decisions regarding the allocation of land for development in a development plan and §116 to decisions to prevent development, which I understand to mean by not allocating land for development. For simplicity, I refer in this judgment only to specific applications for development and the refusal of such applications. However, it is clear, and common ground, that §115 must be read together with §116. Hence, where it applies, §116 supplements §115 and provides that planning permission should not be refused where §115d is not satisfied but the relevant highways impacts are not severe, following mitigation, in the case of capacity/congestion, or unacceptable in the case of highway safety. This was the interpretation of the predecessors of these paragraphs which was adopted in R (Hawkhurst Parish Council) v Tunbridge Wells Borough Council and others [2020] EWHC 3019 (Admin), §110.[22]Many of the terms used in the NPPF are matters of planning judgment and are not suitable for precise legal definition (see R (Samuel Smith Old Brewery (Tadcaster) & Ors v North Yorkshire County Council [2020] UKSC 3, [2020] PTSR 221, §§21-25); other terms, however, do raise issues of legal principle. The phrase “on highways grounds” falls into that latter category. Analogous phrases have given rise to a considerable body of jurisprudence in other areas of law: see, for example, “on the ground of” sex and “because of” a protected characteristic in s. 1(1)(a) of the Sex Discrimination Act 1975 and s. 13(1) of the Equality Act 2010 respectively.[23]I do not agree with the Secretary of State’s interpretation of §116 that a refusal of permission will only be “on highways grounds” where highways impacts are the sole basis for refusal of permission. Decisions to grant or refuse planning permission are conventionally taken having regard to a range of different considerations. There will likely be other factors against permission being granted, even if, as in the present case, these are of lesser significance than highways impacts. Factors in favour of the grant of permission may be insignificant in the circumstances, or of lesser weight than highways impacts, with the result that they are outweighed in the planning balance by highways impacts. But in that situation, highways impacts would not be the sole basis for refusing permission. Permission would be refused because of highways impacts taken together with the factors in favour of the grant of permission being of lesser weight than highways impacts. It will be far from a common occurrence that highways impacts are the sole basis or reason for refusing planning permission and it is unlikely that the draftsman of the NPPF intended to confine §116 to that narrow situation.[24]Further, it is not easy to identify why, as a matter of policy, a high threshold – unacceptable impact on highway safety or capacity/congestion impacts which are severe – must be satisfied before permission may be refused where highways impacts are the sole basis for refusing permission but not, for example, where highways impacts are the principal or dominant reason for refusing permission, albeit that there are other much less important reasons, which would not be sufficient to justify refusal in the absence of highways impacts.[25]There is a range of different possible legal thresholds which could have to be satisfied before it may be said that a refusal of permission would be “on highways grounds”. To name just some of the possibilities, a refusal of permission could sensibly be said to be “on highways grounds” where highways impacts are the principal or dominant reason for refusal, or where they are a key factor or are a significant influence upon refusal, or where they are causative of refusal on a “but for” test or otherwise. In the latter situation, §116 could apply where there are a number of negative impacts tending against the grant of permission, each of equal weight, but where the removal of any one of them from the planning balance would tip the balance in favour of permission being granted. It is a difficult question whether a refusal of permission in that scenario would be “on highways grounds”.[26]However, it is not necessary for me to identify a legal test which may be applied in every case in order to determine whether highways impacts have an influence on a refusal of permission which triggers the application of §116. It is clear to me that, as a minimum, §116 is applicable, in the sense that a refusal of permission would be “on highways grounds”, where highways impacts are treated by a decision-maker as the principal or main reason for refusing permission and it is likely that the planning balance would have been struck differently but for highways impacts. Further, it is clear to me that the Inspector in the present case did treat highways impacts as the principal or main reason for refusing permission, and that it is likely that his decision would have been different if he had not afforded substantial weight to highways impacts. That is sufficient to trigger the application of §116 at the planning balance stage of the Inspector’s analysis in this case.[27]That highways impacts were the principal or main reason for refusing permission in the present case is demonstrated by: i) Highways impacts, which had been the main subject of evidence and submissions at the Inquiry, were the only matter weighing against allowing the appeal to which the Inspector accorded substantial weight, with locational impacts attracting significant weight, landscape and visual harm moderate weight and heritage harm limited weight. These factors were weighed against a substantial economic benefit and limited benefits from accessibility and improvement in bus services. The conflict with Local Plan policies identified by the Inspector (see DL, §107) was primarily with highways aspects of those policies and secondarily with locational aspects. ii) The Inspector’s statement that his decision would be the same if the locational aspects of the Local Plan were out of date, so that the tilted balance should be applied (DL, §107). The tilted balance is the test in §11(d) of the NPPF whereby permission should be granted unless “any adverse impacts of doing so would significantly and demonstrably outweigh the benefits”. In other words, even if the locational policies in the Local Plan were out of date, which would materially reduce the weight that could be attributed to locational impacts, the remaining adverse impacts, of which highways impacts were far and away the most significant, would significantly and demonstrably outweigh the benefits of development. This statement confirms the central role which highways impacts played in the Inspector’s thinking.[28]In these circumstances, the effect of §116 was not to require the Inspector to ignore highways impacts when striking the planning balance. Where highways impacts are material to the planning balance they must be taken into account (ss. 70(2)(c) and 79(4) of the TCPA) and §116 cannot displace the statutory rules. How much weight to give to highways impacts remained a matter for the Inspector. Where it applies, §116 operates as a material consideration which should be taken into account at the planning balance stage (see §2 of the NPPF). The Inspector should have asked himself whether he was intending to refuse planning permission on highways grounds and, if so, whether the threshold for highways impacts set by §116 was satisfied. The answer to those questions was “yes” and “no” respectively. The Inspector should then have taken into account that §116 provides that permission should not be refused on the basis on which he was intending to refuse it. In the usual way so far as the NPPF is concerned, the Inspector would not have been bound by §116 and could have departed from it if there was a rational planning basis on which to do so. In the event, however, he erred in law by failing to consider the effect of §116 at the planning balance stage of his analysis.[29]It follows that the DL must be quashed, and that the Inspector will be required to reconsider his decision on a lawful basis.

Ground 2: Procedural unfairness

[30]In light of my conclusions on Ground 1, Ground 2 is academic, and I express no view upon its merits. The Inspector will reconsider his decision and, prior to doing so, will receive submissions from both parties on the effect of my judgment and on the implications of §116 for the planning balance. The Claimant will have the opportunity to make the submissions which, it says, it was unable to make at the conclusion of the Inquiry.

Ground 4: Failure to consider BNG in the planning balance

[31]In §103 of the DL, under “Ecology”, the Inspector found that the development would achieve BNG of 23% for habitats and 10% for hedgerows and treelines. However, BNG was not listed in the factors which the Inspector stated that he was taking into account in the planning balance, each of which was afforded a particular weight (see §§105-106).[32]Mr Grant, who made measured and cogent submissions for the Secretary of State on this point, invited the Court to assume for the purposes of this case (without deciding) that BNG was a material consideration which the Inspector was required to take into account. I am content to proceed on that basis. Mr Grant maintained that the Inspector had clearly had BNG in mind, but he accepted that it would require a “very benevolent reading” of the DL for me to conclude that the Inspector had actually taken BNG into account in the planning balance. In my judgment, it is clear from §§105-106 of the DL that the Inspector did not do so.[33]Mr Grant’s primary submission was that even if the Inspector had failed to take BNG into account when striking the planning balance, this could have had no effect on his decision. However, he indicated that this argument would not be pursued if I were to find in favour of the Claimant on Grounds 1 or 2 (which I have done).[34]Accordingly, Ground 4 also succeeds, but gives rise to no separate or additional relief. The DL is to be quashed, and the Inspector will be required to take BNG into account when he revisits his decision on the planning balance.