Town and country planning – Planning permission – Waste disposal unit – Defendant local authority granting permission for development of waste disposal unit – Claimant parish council applying for judicial review — Whether planning committee failing to take account of material considerations – Whether environmental statement conflicting with EIA Directive – Application dismissed
The claimant parish council applied to the court for an order quashing the grant of planning permission by the defendant local authority to the first interested party for the development at Allerton Park Quarry near Knaresborough, North Yorkshire of a waste recovery park comprising the erection of a tipping hall, a mechanical treatment facility, an anaerobic digestion facility, a unit housing six air-cooled condensers and an energy from waste facility to generate electricity. The application arose because the defendants, together with the city council (the second interested party) had chosen to award a waste treatment contract to the first interested party following a complex procurement process. The third interested party was the owner of the land upon which it was proposed to build the waste treatment facility but neither he nor the second interested party took an active part in the litigation.
The claimant’s main complaint was that, following the defendants’ resolution to grant consent on 30 October 2012, a number of new facts had arisen which amounted to material considerations within section 70(2) of the Town and Country Planning Act 1990 which deprived the planning officer of jurisdiction to issue the consent and required him to refer the matter back to the planning committee in accordance with the principle set out in R (on the application of Kides) v South Cambridgeshire District Council [2002] EWCA Civ 1370; [2002] 42 EG 160 (CS); [2002] 4 PLR 66.
The claimant submitted that the two new facts which should have been reported back to the defendants’ planning committee were a publication by HM Treasury entitled “A new approach to public private partnerships” and two Leeds City Council reports to their planning committee about planning permission for two energy from waste facilities in the Leeds area.
The claimant also contended that the content of the Environmental Statement was in conflict with the EIA Directive 2011/92/EU and the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 in that it wrongly excluded information about the likely significant effects on the environment of laying combined heat and power pipes. Further, the defendants had failed to take into account a material consideration, namely the analysis of the secretary of state of a failure to provide environmental information about the likely significant effects of laying such pipes in a similar proposal in Cheshire.
Held: The application was dismissed.
(1) Section 70(2) required a planning authority, in dealing with an application, to have regard, among other things, to all material considerations. The expression “in dealing with” included anything done by or on behalf of the planning authority which bore in any way, directly or indirectly, on the application in question. Thus it extended beyond “considering” to include administrative acts done by the authority’s delegated officers. A consideration was material if it was relevant to the question whether the application should be granted or refused, ie if it would tip the balance to some extent, one way or the other. The test was objective in the sense that the choice of material considerations had to be rational and the considerations chosen had to be rationally related to land use issues. An authority’s duty to “have regard to” material considerations was not to be elevated into a formal requirement that in every case where a new material consideration arises after the passing of a resolution to grant planning permission but before the issue of the decision notice there had to be a specific referral of the application back to committee. The duty was discharged if, as at the date at which the decision notice was issued, the authority had considered all material considerations affecting the application with the application in mind, albeit that the application was not specifically placed before it for reconsideration. In practical terms, it had to be a counsel of prudence for the delegated officer to err on the side of caution and refer the application back to the authority for specific reconsideration in the light of any new factors. However, that guidance had be applied with common sense with regard to the facts of the particular case: R (on the application of Kides) v South Cambridgeshire District Council and R (on the application of Dry) v West Oxfordshire District Council [2010] EWCA Civ 1143 applied.
(2) The task of a judge was to analyse the factual information relied on by the claimant and to decide whether it was a material consideration in accordance with the objective test in Kides. The views of the decision maker were not relevant. It was an issue of law for the court to decide and not a rationality challenge to a decision of the decision maker not to refer the consideration to the planning authority. Only if the planning authority or its officers had or could have known of the matter of concern was the next stage of the threefold test set out in Kides to be addressed. Common sense had to be applied and it was important not to place too heavy an emphasis on the guidance to planning officers in Kides which was not a strict legal test. In the present case, when the two publications were examined in the light of the relevant principles, it could not be said that they amounted to material considerations.
(3) The challenge to the decision as regards the content of the environmental statement was a rationality challenge impugnable only on Wednesbury grounds. It followed from the findings of fact and the law that the decision to grant consent was not unlawful on that basis. The conclusions reached by the planning officer in her report had been justified on the evidence available to her: R (on the application of Blewett) v Derbyshire County Council [2003] EWHC 2775 (Admin); [2003] PLSCS 252, R (on the application of Miller) v North Yorkshire County Council [2009] EWHC 2172 (Admin); [2009] PLSCS 255, R (on the application of Bristol City Council) v Secretary of State for Communities and Local Government [2011] EWHC 4014 (Admin) and R (on the application of Bowen-West) v Secretary of State for Communities and Local Government [2012] EWCA Civ 321 considered.
Anthony Crean QC (instructed by Kingswalk Law, of Newcastle-upon-Tyne) appeared for the claimant; Nathalie Lieven QC (instructed by the Solicitor for North Yorkshire County Council) appeared for the authority; Rhodri Price Lewis QC (instructed by Trowers and Hamlins LLP) appeared for the first interested party.
Eileen O’Grady, barrister
R (on the application of Marton-cum-Grafton Parish Council) v North Yorkshire County Council
Town and country planning – Planning permission – Waste disposal unit – Defendant local authority granting permission for development of waste disposal unit – Claimant parish council applying for judicial review — Whether planning committee failing to take account of material considerations – Whether environmental statement conflicting with EIA Directive – Application dismissedThe claimant parish council applied to the court for an order quashing the grant of planning permission by the defendant local authority to the first interested party for the development at Allerton Park Quarry near Knaresborough, North Yorkshire of a waste recovery park comprising the erection of a tipping hall, a mechanical treatment facility, an anaerobic digestion facility, a unit housing six air-cooled condensers and an energy from waste facility to generate electricity. The application arose because the defendants, together with the city council (the second interested party) had chosen to award a waste treatment contract to the first interested party following a complex procurement process. The third interested party was the owner of the land upon which it was proposed to build the waste treatment facility but neither he nor the second interested party took an active part in the litigation. The claimant’s main complaint was that, following the defendants’ resolution to grant consent on 30 October 2012, a number of new facts had arisen which amounted to material considerations within section 70(2) of the Town and Country Planning Act 1990 which deprived the planning officer of jurisdiction to issue the consent and required him to refer the matter back to the planning committee in accordance with the principle set out in R (on the application of Kides) v South Cambridgeshire District Council [2002] EWCA Civ 1370; [2002] 42 EG 160 (CS); [2002] 4 PLR 66. The claimant submitted that the two new facts which should have been reported back to the defendants’ planning committee were a publication by HM Treasury entitled “A new approach to public private partnerships” and two Leeds City Council reports to their planning committee about planning permission for two energy from waste facilities in the Leeds area. The claimant also contended that the content of the Environmental Statement was in conflict with the EIA Directive 2011/92/EU and the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 in that it wrongly excluded information about the likely significant effects on the environment of laying combined heat and power pipes. Further, the defendants had failed to take into account a material consideration, namely the analysis of the secretary of state of a failure to provide environmental information about the likely significant effects of laying such pipes in a similar proposal in Cheshire.Held: The application was dismissed.(1) Section 70(2) required a planning authority, in dealing with an application, to have regard, among other things, to all material considerations. The expression “in dealing with” included anything done by or on behalf of the planning authority which bore in any way, directly or indirectly, on the application in question. Thus it extended beyond “considering” to include administrative acts done by the authority’s delegated officers. A consideration was material if it was relevant to the question whether the application should be granted or refused, ie if it would tip the balance to some extent, one way or the other. The test was objective in the sense that the choice of material considerations had to be rational and the considerations chosen had to be rationally related to land use issues. An authority’s duty to “have regard to” material considerations was not to be elevated into a formal requirement that in every case where a new material consideration arises after the passing of a resolution to grant planning permission but before the issue of the decision notice there had to be a specific referral of the application back to committee. The duty was discharged if, as at the date at which the decision notice was issued, the authority had considered all material considerations affecting the application with the application in mind, albeit that the application was not specifically placed before it for reconsideration. In practical terms, it had to be a counsel of prudence for the delegated officer to err on the side of caution and refer the application back to the authority for specific reconsideration in the light of any new factors. However, that guidance had be applied with common sense with regard to the facts of the particular case: R (on the application of Kides) v South Cambridgeshire District Council and R (on the application of Dry) v West Oxfordshire District Council [2010] EWCA Civ 1143 applied. (2) The task of a judge was to analyse the factual information relied on by the claimant and to decide whether it was a material consideration in accordance with the objective test in Kides. The views of the decision maker were not relevant. It was an issue of law for the court to decide and not a rationality challenge to a decision of the decision maker not to refer the consideration to the planning authority. Only if the planning authority or its officers had or could have known of the matter of concern was the next stage of the threefold test set out in Kides to be addressed. Common sense had to be applied and it was important not to place too heavy an emphasis on the guidance to planning officers in Kides which was not a strict legal test. In the present case, when the two publications were examined in the light of the relevant principles, it could not be said that they amounted to material considerations.(3) The challenge to the decision as regards the content of the environmental statement was a rationality challenge impugnable only on Wednesbury grounds. It followed from the findings of fact and the law that the decision to grant consent was not unlawful on that basis. The conclusions reached by the planning officer in her report had been justified on the evidence available to her: R (on the application of Blewett) v Derbyshire County Council [2003] EWHC 2775 (Admin); [2003] PLSCS 252, R (on the application of Miller) v North Yorkshire County Council [2009] EWHC 2172 (Admin); [2009] PLSCS 255, R (on the application of Bristol City Council) v Secretary of State for Communities and Local Government [2011] EWHC 4014 (Admin) and R (on the application of Bowen-West) v Secretary of State for Communities and Local Government [2012] EWCA Civ 321 considered.Anthony Crean QC (instructed by Kingswalk Law, of Newcastle-upon-Tyne) appeared for the claimant; Nathalie Lieven QC (instructed by the Solicitor for North Yorkshire County Council) appeared for the authority; Rhodri Price Lewis QC (instructed by Trowers and Hamlins LLP) appeared for the first interested party.Eileen O’Grady, barrister
