In R (on the application of Samuel Smith Old Brewery (Tadcaster) and others) v North Yorkshire County Council [2020] UKSC 3; [2020] PLSCS 16, the Supreme Court has overturned a Court of Appeal ruling in December 2017 and upheld both the earlier judgment of the Planning Court and the original planning permission.
The facts can be shortly stated. A 25-hectare site had been used for quarrying since 1948. An application was made in October 2009 to extend it by six hectares. The council was happy, and granted permission in January 2013. Others were not happy, and successfully quashed the permission on the grounds that there were failings in the environmental impact assessment. The matter was sent back to the council, which granted a second permission in February 2016. This prompted a new challenge, this time on the ground that the planning officer (and so the committee) had failed to consider the visual impact of the development when considering its effect on the “openness” of the green belt, under paragraph 90 of the National Planning Policy Framework (NPPF).
In March 2013, Higginbottom J rejected the challenge, and upheld the planning permission. In May 2017, the challengers were given leave to appeal. In December 2017, the Court of Appeal overturned the Planning Court decision, and quashed the planning permission – ruling that paragraph 90 of the NPPF implicitly required an assessment of the visual effects on the green belt as part of the assessment of openness, and that this had not been explicitly addressed in the officer’s report to committee.
More than two years later (and more than 10 years since the original planning application) the Supreme Court has reinstated the planning permission.
The essence of the decision appears in the final three, admirably succinct paragraphs. The issue was whether the quarrying would preserve the openness of the green belt. The officer had adequately considered that. Paragraph 90 of the NPPF does not expressly require visual impact assessment; and it is not implicit that one should be carried out. The officer was entitled to take the view that a six-hectare extension of an existing 25-hectare quarry was acceptable, especially as she had clearly addressed some visual effects, for example in considering the need of remediation after quarrying had finished. The conclusions as to openness were a matter of planning judgment, not law. Similarly, the view that this was an extension was a matter of planning judgment.
These conclusions are not surprising. It has taken seven years since the first permission was granted in 2013 for a final legal ruling that quarrying can proceed. We need a way to limit the ability of Nimbys to frustrate development like this.
Carl Dyer is a partner at Irwin Mitchell
