Town and country planning – Planning permission – Energy from waste facility – Defendant local authority granting permission for waste management facility – Claimant seeking judicial review claiming permission granted unlawfully – Whether defendants complying with statutory requirements – Whether defendants complying with national planning policy – Whether defendants giving adequate reasons – Claim dismissed
The development of an “energy from waste” facility was an essential part of the defendant council’s waste planning strategy. The defendants believed there was an urgent need for the development. The appeal site was allocated as a strategic waste complex, including a facility for the recovery of energy from waste which would treat up to 300,000 tonnes of waste generated by households and businesses in Buckinghamshire each year.
In March 2007 the defendants began the procurement process for their residual waste treatment contract, with a view to diverting waste from landfill. In February 2011, a developer (the interested party) emerged as the preferred bidder. The land on which the facility was to be developed lay next to a site already being used for landfill. To serve the new development the interested party proposed to build an access road from the A41 along the route of a disused railway line to take traffic to and from the site without its having to go through the nearby villages.
The claimant who lived near the site objected to the proposed development because of the impact he feared it would have on wildlife, and also because he was opposed to the demolition of buildings on the site to make way for the access road. An ecological management plan had been submitted to the defendants as a single point for ecological mitigation, compensation and enhancement measures. Natural England, which was the body responsible for enforcing the Conservation of Habitats and Species Regulations 2010 (SI 2010/490), implementing Council Directive 92/43/EEC (the Habitats Directive), originally objected to the proposal. However, planning permission was finally granted with a number of conditions imposed intended to mitigate ecological impact.
The claimant sought to have the planning permission quashed. He contended that the defendants had failed to: (i) comply with the requirements of the Habitats Directive; (ii) apply the government’s planning policy for nature conservation in the National Planning Policy Framework (“NPPF”); and (iii) provide adequate reasons for the grant of planning permission.
Held: The claim was dismissed.
(1) The lawfulness of what the defendants had done was not to be tested by imposing upon them a duty that was not their own. If a proposed development was found acceptable when judged on its planning merits, planning permission for it should normally be given unless, in the planning authority’s view, the proposed development would be likely to offend article 12(1) of the Habitats Directive and unlikely to be licensed under the derogation powers. A planning authority was not expected to supervise the performance by Natural England of its primary responsibility for ensuring compliance with the Directive or to take that responsibility upon itself. The authority was entitled to conclude that Natural England, having withdrawn its initial objection to the proposal, was satisfied that the requirements of the Habitats Directive were being met. In the present case, the defendants had discharged their duty under regulation 9(5) with no less rigour than was required to comply with the approach indicated by the Supreme Court in R (on the application of Morge) v Hampshire County Council [2011] UKSC 2; [2011] PLSCS 14; [2011] 04 EG 101 (CS).
(2) A claim for judicial review was not an opportunity to contest the planning merits of a decision. Questions of planning judgment and weight were not for the court but for the planning decision-maker. It was not the role of the court to test the ecological and planning judgments made in the course of the defendants’ decision-making process. Assessing the nature, extent and acceptability of the effects that a development would have on the environment was always, apart from the limited scope for review on public law grounds, exclusively a task for the planning decision-maker. On the evidence, it could not be said that the ecological analysis presented to the defendants by the interested party was flawed. Nor was it unreasonable or irrational for the defendants to rely upon that analysis. On the contrary, it might have been unreasonable not to do so: Tesco Stores Ltd v Secretary of State for the Environment [1995] 2 EGLR 147; [1995] 27 EG 154 and Newsmith Stainless Ltd v Secretary of State for Environment, Transport and the Regions [2001] EWHC Admin 74; [2001] PLSCS 30 applied.
(3) (3) Article 31 of the Town and Country Planning (Development Management Procedure) (England) Order 2010 required a local planning authority, when granting planning permission, to state in its decision notice a summary of its reasons for the grant of permission, and a summary of the policies and proposals in the development plan that were relevant to its decision to grant permission. When the court was considering the adequacy of summary reasons for a grant of planning permission, it was permissible and sometimes necessary to have regard to the surrounding circumstances. By their nature a local planning authority’s summary reasons for granting planning permission did not present a full account of its decision-making process. Under article 31(1) the defendants had to provide in their decision notice a summary of the policies in the development plan relevant to that decision. They were not required to refer also to those provisions of the Habitats Directive and the 2010 regulations with which it had sought to comply, or to any passages in the NPPF that it had taken into account.
In the present case the members who made the decision to grant planning permission plainly agreed with the conclusions and recommendation in the officers’ report. The court might consider the adequacy of the summary reasons given for the grant in that context. The proposed development had been found to accord with relevant provisions of the development plan. In the circumstances the defendants had done enough to discharge the statutory requirement for summary reasons in their decision notice. They might have expanded on the reasons but the reasons they gave were adequate. Even if the summary reasons had fallen short of what was required, nobody had been prejudiced by any deficiency in the reasons stated. The remedy then, rather than an order to quash the planning permission, would have been mandatory relief requiring the reasons to be made good: R (on the application of Midcounties Co-operative Ltd v Wyre Forest District Council [2009] EWHC 964 (Admin); [2009] PLSCS 222, R (Siraj) v Kirklees Metropolitan Council [2010] EWHC 444 9Admin); [2010] PLSCS 74 and R (on the application of Telford Trustee No. 1 Ltd) v Telford and Wrekin Council [2011] EWCA Civ 896; [2011] PLSCS 200 considered.
Ian Dove QC and Jenny Wigley (instructed by Richard Buxton Solicitors) appeared for the claimant; David Elvin QC and Richard Turney (instructed by the Head of Legal and Democratic Services, Buckinghamshire County Council) appeared for the defendants; James Maurici (instructed by Walker Morris Solicitors) appeared for the interested party.
Eileen O’Grady, barrister
