Town and country planning – Waste facility – Green belt – Claimants applying for judicial review of grant of planning permission for waste recycling facility in green belt – Whether defendants failing to comply with obligation to give clear and precise full reasons for opinion that proposal not EIA development – Whether defendants wrongly interpreting or failing rationally to apply waste site allocation document – Whether defendants misinterpreting or failing rationally to apply green belt policy – Application dismissed
The claimants applied for judicial review of the decision of the defendant local authority to grant planning permission to the first interested party developer for an inert waste recycling facility on land lying to the south of Birchall Lane, Cole Green, Welwyn Garden City, Hertfordshire. The application site lay in the green belt and had been allocated in the defendants’ waste site allocations document (WSAD) as being potentially suitable for a range of waste management uses. The WSAD was a development plan document which formed part of the statutory development plan for that area.
The defendants issued a screening opinion which concluded that an environmental impact assessment (EIA) was not needed because it was unlikely that the proposed development would cause any significant harm, given its size and the fact that only inert waste was to be imported. The defendants granted planning permission accepting their planning officers’ advice that, although the application represented inappropriate development in the green belt, the waste management benefits of the proposal and its location in the WSAD constituted very special circumstances outweighing the harm to the green belt or any other harm.
The first claimant company owned land close to the application site, identified for potential residential development. The second claimant company had agreed to promote the potential housing land. The second and third interested party local authorities had objected to the planning application but did not take any part in the judicial review proceedings.
The claimants contended, among other things, that: (1) the screening opinion was unlawful because the defendants had failed to comply with their obligation under regulation 4(7) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 to give clearly and precisely full reasons for their opinion that the proposed development did not constitute EIA development; (2) the defendants had wrongly interpreted and/or failed rationally to apply the WSAD by not requiring a detailed assessment of the proposed development’s impact on future housing on nearby sites; (3) the defendants had misinterpreted and/or failed rationally to apply green belt policy.
Held: The application was dismissed.
The issue of whether there was sufficient information before the planning authority for them to issue a screening opinion, and whether a development was likely to have significant environmental effects, were both matters of judgment for the planning authority. Such decisions might only be challenged in the courts on grounds of irrationality or other public law error. The obligation to give reasons in regulation 4 of the 2011 Regulations was to enable a participant to understand why a negative screening opinion had been issued so that representations might be made to the secretary of state in an attempt to persuade him to come to the opposite conclusion; and so that the participant could see whether the screening opinion was tainted by a public law error and a legal challenge might be brought. In judging the adequacy of stated reasons, the context in which the screening opinion was prepared was relevant, including any request for a screening opinion. The reasoning given in the screening opinion was, in the context of the present case, legally adequate and the challenge had to be rejected. Even if the defendants had failed to give adequate reasons so that the screening opinion had to be quashed, it was inevitable that the defendants would have issued a further screening opinion with more detailed reasoning to the effect that an EIA was unnecessary: R (on the application of Jones) v Mansfield District Council [2003] EWCA Civ 1408; [2003] PLSCS 227, R (on the application of Noble Organisation Ltd) v Thanet District Council [2005] EWCA Civ 782; [2005] PLSCS 123 and R (on the application of Lea Valley Regional Park Authority) v Epping Forest District Council [2015] EWHC 1471 (Admin); [2016] Env LR 8 followed. Save Britain’s Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153 and South Buckinghamshire District Council v Porter (No 2) [2004] UKHL 33; [2004] 1 WLR 1953 considered.
(2) The proper meaning of a planning policy was a matter of interpretation for determination by the courts, but a policy was not to be construed as if it were a statutory or contractual document. Many policies were framed in language the application of which required the exercise of judgment. Such matters fell within the jurisdiction of planning authorities and could only be challenged on the grounds that it was irrational. In the present case, the WSAD did not prescribe that a detailed assessment of a development’s impact on future housing sites was always required. Rather it stated that such an assessment might be required. No material had been put before the court to demonstrate that the defendants had acted irrationally as regards the extent of the information they obtained in order to assess the planning application: Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; [2012] PLSCS 69 followed.
(3) The question whether existence of very special circumstances justified allowing the proposal within the green belt was a matter of planning judgment for the defendants. The starting point was that the officers’ report was addressed to a committee with substantial local and background knowledge. It was a matter of planning judgment for the defendants to determine that the impact on residential amenity by locating the recycling facility on the application site would be unacceptable. Irrationality was high hurdle for the claimants to surmount and there was nothing irrational about the defendants’ judgment: R v Mendip District Council, ex parte Fabre (2000) 80 P & CR 500; [2000] PLSCS 6 and Newsmith Stainless Ltd v Secretary of State for the Environment, Transport and the Regions [2001] EWHC 74 (Admin); [2001] PLSCS 30 considered.
James Maurici QC and Richard Clarke (instructed by Nabarro LLP) appeared for the claimant; William Upton and Emmaline Lambert (instructed by Hertfordshire County Council) appeared for the defendants; David Forsdick QC (instructed by Fladgate LLP) appeared for the first interested party; the second and third interested parties did not appear and were not represented.
Eileen O’Grady, barrister
