Town and country planning – Planning permission – Green belt – Ash disposal site — Defendant local authority granting interested party planning permission for extraction of pulverised fuel ash from green belt – Claimant applying for judicial review — Whether proposal acceptable where only part constituting appropriate development – Application dismissed
Pulverised fuel ash (PFA) was generated by the burning of coal in coal-fired power stations. It could be used as a building product, including as an aggregate in producing cement and concrete. PFA was classed as a sustainable/recycled aggregate in the United Kingdom and using it as an aggregate reduced the need for virgin/raw materials, which would otherwise need to be extracted.
In April 2021, the defendant local authority granted planning permission to the interested party for the extraction of PFA from the Gale Common Ash Disposal Site, near Wakefield in the green belt. As well as permitting the extraction and export of PFA, the grant included the provision of processing plants and other associated and ancillary development. It also permitted highway improvement works, a new site access, car parking and ancillary development in connection with proposals for public access.
The claimant parish council applied for judicial review of the grant. It contended, amongst other things, that the officer’s report which comprised the reasons for the grant of permission, was contrary to the decision in Kemnal Manor Memorial Gardens Ltd v First Secretary of State [2005] EWCA Civ 835; [2005] PLSCS 108; [2006] 1 P & CR 10. In terms of green belt policy, it was not appropriate to divide up the development into parts which would be appropriate and inappropriate development in the green belt. A proposed development was not acceptable merely because part of it was appropriate.
Held: The application was dismissed.
(1) The decision of the Court of Appeal in Kemnal Manor was authority for the principle that, in deciding whether development in the green belt was inappropriate development, the development had to be considered as a whole and not by reference to any part or parts thereof. There was no doubt that the officer’s report did not fall foul of the Kemnal Manor principle. It correctly recorded the provisions of paragraphs 143 and 144 of the National Planning Policy Framework (NPPF) and correctly applied those paragraphs to the proposed development, concluding that it was necessary to consider whether very special circumstances existed. The report expressly stated that the fact that PFA extraction was not “mineral extraction” meant that the proposed development was “inappropriate” and should not be approved except in very special circumstances. The paragraph ended with a correct recitation of what “very special circumstances” entailed, making express reference not only to potential harm to the green belt but to any other harm resulting from the proposal. That was far removed from Kemnal Manor.
(2) Although the “very special circumstances” requirement meant the overall balance remained loaded against inappropriate development in the green belt, it made sense for the officer’s report to examine the issue of harm arising from the built element of the proposals, by considering whether, in the light of the buildings etc already on the site, some of which would be demolished, that element could be said to have a greater impact on the openness of the green belt than the existing development. It was clear from the officer’s report that it was not being suggested that the built element was being given a “free go”. The overarching question remained whether there were “very special circumstances”. However, the ascertainment of whether such circumstances existed could only properly be achieved by understanding the overall nature of the harms. So far as the built element was concerned, its overall impact fell to be assessed in the light of the existing buildings etc: whether the built development, viewed in its own terms, would be inappropriate development in terms of paragraph 145 of the NPPF, was relevant to the overall assessment of whether the “very special circumstances” test was met.
(3) The claimant asserted that the officer’s report failed to recognise that “any other harm” arising from the development could include all harm, including non-green belt harm. However, the fact that a particular harm was assessed as being capable of amelioration by reason of a planning condition did not mean that the harm in question was being left out of account; the report expressly recognised that the harms there mentioned were relevant to the “very special circumstances” assessment. There was nothing to support the suggestion that the report failed to bring the relevant harms into account. There were many places in the report that made express reference to “any other harm”. One should not expect a decision of a planning inspector necessarily to flow in a linear manor, part by part, paragraph by paragraph, with the conclusion at the end. A particular part of a decision might be based not only on what came before it but it might anticipate what followed. It was an inescapable feature of human communication that one could not say everything at once and that one had to start somewhere: Arsenal Football Club PLC v Secretary of State for Communities and Local Government [2014] EWHC 2620 (Admin); [2014] PLSCS 231 considered.
(4) There were plainly limits to reliance on any interpretative principle that was based on considering the report as a whole. There might be a conclusion that was so definite and final as to make it plain that the die had been cast at that point, thereby making it impossible to read any subsequent passages as having a material effect on that conclusion. The report in the present case was very far from being so categorised. Given the importance of the openness aspect of the green belt policies, it was entirely understandable that the officer’s report should analyse that before addressing the specifics of other non-green belt harms. In the face of all that, acceptance of the claimant’s challenge would be a departure from the approach to planning officers’ reports that had been repeatedly taken by the courts. It would have a chilling effect upon the way such reports were hereafter prepared, with no commensurate benefit to the elected members who had to take the ultimate decisions or to the public interest.
Richard Kimblin QC (instructed by Irwin Mitchell LLP) appeared for the claimant; Andrew Parkinson (instructed by North Yorkshire County Council) appeared for the defendant; Alexander Booth QC and Ned Westaway (instructed by Pinsent Masons LLP) appeared for the interested party.
Eileen O’Grady, barrister