Town and country planning – Planning permission – Green belt – Ash disposal site – First respondent local authority granting planning permission for extraction of pulverised fuel ash from green belt – Appellant parish council applying for judicial review – High court dismissing application – Appellant appealing – Whether first respondent led into error by planning officer’s advice on weight to be given to development plan policy on best practicable environmental option – Appeal dismissed
Pulverised fuel ash (PFA) was generated by the burning of coal in coal-fired power stations. It could be used as a building product, including as an aggregate in producing cement and concrete. PFA was classed as a sustainable/recycled aggregate in the United Kingdom and using it as an aggregate reduced the need for virgin/raw materials, which would otherwise need to be extracted.
In April 2021, the first respondent local authority granted planning permission to the second respondent for the extraction of PFA from the Gale Common Ash Disposal Site, near Wakefield in the green belt. As well as permitting the extraction and export of PFA, the grant included the provision of processing plants and other associated and ancillary development. It also permitted highway improvement works, new site access, car parking and ancillary development for public access.
The appellant parish council applied for judicial review arguing, amongst other things, that the planning officer’s report induced an error of law by the planning committee: it regarded criterion (a) in Policy 7/3 of the North Yorkshire Waste Local Plan (which dealt with proposals to re-work deposited waste, including PFA) with its requirement for an assessment of the “best practicable environmental option”, as if, in law, it could not be given any weight as a material consideration.
The High Court dismissed the application holding that the officer’s report gave a perfectly sustainable reason why no weight was to be given to the principle of best practicable environmental option and it was fanciful to think the members were being told anything other than that was the view of the professionally-qualified officer charged with making the overall recommendation to the committee: [2022] EWHC 238 (Admin); [2022] PLSCS 29. The appellant appealed.
Held: The appeal was dismissed.
(1) When determining an application for planning permission under the statutory scheme, the performance by a planning decision-maker of the statutory obligation in section 38(6) of the Planning and Compulsory Purchase Act 2004, though it entailed priority being given to the development plan, might result in national planning policy outweighing that priority.
The weight to be given to any material consideration, including material considerations arising in the development plan itself or in national planning policy, was always for the decision-maker alone to determine as a question of planning judgment, subject only to the court’s intervention on public law grounds. The weight which might lawfully be given to a material consideration extended, at the bottom of the scale, to “no weight at all”. If the decision to give that consideration no weight was based on rational planning grounds, the planning authority was entitled to ignore it.
The task of a planning committee was to exercise its own planning judgment, bringing to the decision the members’ familiarity with local circumstances and relevant planning policies in the light of the advice given by the authority’s professional planning officers.
The function of a planning officer, when producing a report to the committee responsible for deciding whether planning permission should be granted for a proposed development, was to provide to the members his or her own planning judgment and advice to help them in making the decision. Absent evidence to the contrary, it might be assumed that when the committee followed the officer’s recommendation, they had adopted the reasoning on which that recommendation was based.
(2) The jurisdiction of the court in its supervisory role was to establish whether the authority’s decision-making had been vitiated by any error of law. The court would review the decision with realism and common sense, avoiding an excessively legalistic approach.
Only if the effect of the report was significantly to mislead the members on a material issue would it interfere with the committee’s decision.
In considering that question, the court would read the report fairly, as a whole and with a reasonable degree of benevolence, not forgetting that it had been addressed to an audience of councillors familiar with local circumstances.
(3) In this case, it was clear from the officer’s report that she had firmly in mind throughout that in making its decision on the application for planning permission the first respondent was statutorily obliged by section 70(2) of the Town and Country Planning Act 1990 to have regard to the development plan and any other material considerations and, by section 38(6) of the 2004 Act, to determine the application in accordance with the plan unless material considerations indicated otherwise.
On criterion (a) in policy 7/3, the essential question was whether there was now any justification for requiring an assessment of “best practicable environmental option”, despite the removal of such a requirement from more recently published national policy.
If any weight was to be given to that provision in the development plan, the absence of such an assessment would have counted against the proposal in the ultimate planning balance undertaken in the performance of the section 38(6) duty. The officer gave the committee clear rational planning advice based on the officer’s lawful exercise of planning judgment.
(4) In view of the planning officer’s assessment of the planning merits of the proposed development, with which the committee agreed, there was no legal requirement for the first respondent to take the exceptional course of identifying and considering “alternatives” to the application site and proposal. The existence and merits of such alternatives were not “so obviously material” as to “require direct consideration”.
The first respondent did not ignore the possibility of alternative proposals being brought forward to meet the need for PFA, and alternative means of carrying out the proposed operation at the application site. It was not the court’s task to speculate about the possible existence of such sites or proposals. It was perfectly rational and lawful for the officer and the committee not to have regard to “alternatives” beyond the consideration which was given to that question.
Richard Kimblin KC and Howard Leithead (instructed by Irwin Mitchell LLP) appeared for the appellant; Jenny Wigley KC (instructed by North Yorkshire County Council) appeared for the first respondent; Alexander Booth KC and Ned Westaway (instructed by Pinsent Masons LLP) appeared for the second respondent.
Eileen O’Grady, barrister