Quarry – Development – Ancient monument – Interested party working quarry close to ancient monument of national importance – Defendant planning authority granting permission to extend quarry – Claimant objector seeking to quash decision – Whether defendants erring in concluding extension small-scale – Whether defendants taking account of effect on setting of ancient monument – Directive 85/337/EEC – Whether defendants considering environmental effects of restoration of site to wetland – Application dismissed
The interested party had worked a large sand and gravel quarry since 1995. it was situated close to an ancient monument of national importance comprising three prehistoric architectural structures (henges) linked by a causeway. The claimant was a local resident and a member of a pressure group opposed to quarrying near the henges.
In 2008, the defendants granted the interested party planning permission to extend the quarry over an area of farmland to provide an additional extraction area of more than 25 ha. The permission was conditional on the extended quarry being returned to a wetland once the deposits has been worked out and an agreement under section 106 of the Town and Country Planning Act 1990. The defendants took the view that, in the light of policies set out in the minerals local plan, the proposed development was a small-scale extension to an existing site and it was therefore appropriate to grant planning permission even though the site lay outside the preferred areas identified in the plan.
The claimant applied to quash that decision contending, inter alia, that the defendants had: (i) misapplied the minerals local plan by determining that the extension was small-scale; (ii) adopted the wrong approach to their assessment of the effect of the extension on the setting of the ancient monument; and (iii) breached Directive 85/337/EEC in failing properly to consider, with regard to the restoration scheme, certain strategies and ecological advice regarding bird management on the site and possible risks to a nearby airfield by birds attracted to a wetland landscape.
Held: The application was dismissed.
(1) The defendants were entitled to conclude that the extension was small-scale. The planning committee had exercised its collective judgment and the planning officer had produced a report that properly reflected the issues and evidence and gave a clear appraisal of all material considerations.
The minerals local plan was a policy document drafted by the defendants for the guidance of their planning committee. In construing its provisions, the planning committee was interpreting the defendants’ own policy. Thus, the courts would pay considerable deference to the interpretation adopted and would interfere only where that interpretation was perverse.
Words in policy documents should not be interpreted with the detailed scrutiny demanded by the a statute or a commercial contract. They were often loosely drafted by planners for planners, without the strict intention of being legally binding documents. It was important for words to be construed in their full context and to recognise that most planning decisions turned on the exercise of planning judgment on a unique set of facts and circumstances, rather than a point of law. That was particularly the case in respect of mineral planning applications, in which, uniquely, the planning authority had to take into account production requirements for their area as well as criteria relevant to other types of planning decision. It was particularly important for planning authorities and courts to recognise their respective roles; the courts would be cautious when asked to condemn a mineral planning authority’s interpretation of its own planning policy as being perverse.
Although the planning committee was obliged to consider which matters were relevant for the purposes of a planning decision, the planning officer also had a filtering role and exercised an expert function to ensure that only matters that might realistically bear on the relevant decision were brought to the attention of the committee. A planning officer’s duty went beyond that of misleading the committee; it included a positive duty to provide sufficient information and guidance to enable members to reach a decision by applying the relevant statutory criteria. The necessary judgment in that role deserved some respect: R v Selby District Council ex parte Oxton Farms [1997] EGCS 60 considered.
(2) As regards to the henges and their setting, even if the committee had not considered the issue on the correct legal test, on the basis of the evidence before it, its decision could not sensibly have been different. The planning committee had before it all relevant evidence on the setting; professional advice indicated that the development would not significantly affect it. That advice was based on a consideration of all relevant views and was tested at the committee meeting. The claimant had not put forward any compelling evidence or particularised submission that the setting would be so affected.
(3) There was no evidence to suggest that the development would realistically give rise to significant environmental effects from birdstrike or its proposed management. The statutory consultees acting for the airfield had not objected to the proposal in principle subject to an amendment to the design of the restoration scheme to ensure that the site’s attractiveness to hazardous birds was minimised and confirmation that a bird-management plan would be incorporated into the section 106 agreement, which had been a condition of the grant of permission.
Richard Harwood and James Burton (instructed by Richard Buxton, of Cambridge) appeared for the claimant; Frances Patterson QC (instructed by the legal department of North Yorkshire County Council) appeared for the defendants; Jeremy Cahill QC and Richard Kimblin (instructed by Eversheds) appeared for the interested party.
Eileen O’Grady, barrister
