Town and country planning – Planning permission – Exceptional circumstances – Claimant seeking judicial review of planning permission for relocation of facilities for nuclear power station – Whether defendant local authority failing to consider need for proposed development in deciding whether exceptional circumstances justified major development in area of outstanding natural beauty – whether defendant failing to conclude environmental information up to date – Application dismissed
The claimant lived about two miles from the Sizewell B nuclear power station (SZB). She was a member of an action group concerned about the sensitive nature of the environment around Sizewell and the effects of the proposed new Sizewell C nuclear power station (SZC), to which it was opposed.
The claimant applied for judicial review to quash the decision of the defendant local authority to grant planning permission to the first interested party, which was the owner and operator of SZB, for the relocation of various facilities for SZB. The development was proposed in order to facilitate the construction of SZC if it was approved in due course. The second interested party was the promoter of SZC.
The proposal was for the relocation works for facilities at SZB to begin in advance of a decision on whether to grant development consent for SZC, so as to reduce the delay to the SZC project that would occur if relocation works could not be carried out until the whole scheme was consented. That was said to be in the national interest because national policy supported the development and deployment of additional nuclear power capacity as soon as possible.
The claimant contended that the defendant had: (i) unlawfully failed to consider the need for, and alternatives to, the proposed development when addressing whether there were exceptional circumstances to justify major development in the Suffolk Coast and Heaths Area of Outstanding Natural Beauty (AONB); and (ii) failed to reach a lawful conclusion that the environmental information was “up to date”, contrary to regulation 26 of the Town and County Planning (Environmental Impact Assessment) Regulations 2017.
Held: The application was dismissed.
(1) Paragraph 172 of the national planning policy framework (NPPF) required the need for major development in an AONB to be assessed but did not stipulate how that assessment was to be carried out. The application of the word “need” to the circumstances of each case was essentially left to the judgment of the planning authority which could only be challenged on the grounds of irrationality. The issue for the court was whether the planning authority asked the right question and took reasonable steps to acquaint itself with the relevant information to enable it to give the correct answer. Accordingly, it was for the defendant to judge how far to go into the question of need and to obtain information on that aspect. The question was whether the amount of time which would be saved in the construction of SZC by carrying out the advance works was an obviously material consideration, such that it was irrational not to take it into account: R (Samuel Smith Old Brewery (Tadcaster)) v North Yorkshire County Council [2020] EGLR 13 applied. Tameside Metropolitan Borough Council v Secretary of State for the Environment [1977] AC 1014, R (Khatun) v Newham London Borough Council [2005] QB 37; [2004] PLSCS 73 and Flintshire County Council v Jayes [2018] EWCA Civ 1089; [2018] PLSCS 89 considered.
(2) Although the court was dealing with the “exceptional circumstances” test in paragraph 172 of the NPPF for major development in an AONB, in broad terms the approach summarised in Keep Bourne End Green v Wycombe Council [2020] EWHC 1984 (Admin) regarding green belt might be read across to the present context. Thus, the concept of exceptional circumstances was deliberately broad and not susceptible to dictionary definition. The matter was left to the judgment of the decision-maker in all the circumstances of the case. In development control, inappropriate development in the green belt was treated as being harmful in itself to green belt policy by reason of its inappropriateness, quite apart from any additional harm caused by the impact of the particular proposal on the green belt and its purposes in that location. Under AONB policy in the NPPF there was no notion of harm simply through development being treated as inappropriate in policy terms. The issue was what harm to the AONB (if any) would actually be caused by the development in the location proposed. AONB policy was also different from green belt policy in that it explicitly required consideration of whether the development would be in the public interest and set out some of the factors to be addressed, where relevant, in the assessment of whether exceptional circumstances existed.
Read as a whole, the officer’s report and minutes showed that the defendant considered that the overall impact of the proposal would not be materially harmful. The defendant had not acted irrationally by not requiring a quantitative assessment of the time saving for SZC or considering that matter.
(3) Regulation 26(2) of the 2017 Regulations dealt with whether the competent authority was satisfied that its reasoned conclusion under regulation 26(1)(b) on the significant environmental effects of the proposal was up to date. A reasoned conclusion was taken to be up to date if the authority judged that its conclusion addressed the likely significant environmental effects. The object of regulation 26(2) was to prevent a planning permission being granted if there had been a delay since the time when the authority’s reasoned conclusion was reached without the authority being satisfied that it might still be relied upon. That dealt with the risk of a material change of circumstances occurring between an authority reaching its reasoned conclusion and the grant of planning permission.
It was impossible to read the officer’s report as indicating that the defendant was not satisfied that its reasoned conclusion under regulation 26(1) was up to date, whether in relation to the whole or any part of the environmental information. The collective views of officers on the environmental assessment were brought together and included in the officer’s report, which was considered by the committee not long afterwards. The decision was issued about two months after the committee’s resolution and there was no suggestion that its reasoned conclusion had become out of date during that period.
David Wolfe QC and Ashley Bowes (instructed by Leigh Day) appeared for the claimant; Andrew Tait QC and Isabella Tafur (instructed by East Suffolk Council) appeared for the defendant; Hereward Phillpot QC (instructed by Herbert Smith Freehills LLP) appeared for the interested parties.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of Girling) v East Suffolk Council