Planning policy – Interpretation – Second defendant council refusing planning permission for open cast coal mine – First defendant’s inspector dismissing appeal against refusal – Claimant applying to quash decision – Whether refusal of appeal vitiated by erroneous approach to development plan policy on open cast mining — Whether inspector correctly construing relevant development plan policy – Application granted
The claimant appealed unsuccessfully to the secretary of state against the refusal of planning permission by the second defendant for a surface, ie open-cast, coal mine in County Durham. The claimant made an application under section 288 of the Town and Country Planning Act 1990 to quash that decision which had to be taken in the context of section 38(6) of the Planning and Compulsory Purchase Act 2004 which provided: “If regard is to be had to the development plan for the purpose of any determination to be made under the Planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise”.
In the present case, there was no dispute that the development plan policy of fundamental importance was Policy M7 of the Minerals Local Plan, which provided: “Within the exposed coalfield area there will be a presumption against proposals for open cast mining of coal and/or fireclay unless: (a) they are environmentally acceptable, or can be made so by planning conditions or obligations; or (b) they provide local or community benefits which clearly outweigh the adverse impacts of the proposal”. In assessing such benefits particular regard had to be had to, amongst other things, the contribution of the proposal towards the comprehensive reclamation of areas of derelict or contaminated land and their contribution (or otherwise) to the maintenance of high and stable levels of economic growth and employment.
The question was whether the inspector appointed by the first defendant to consider the claimant’s appeal had adopted the correct approach to Policy M7.
Held: The application was granted.
(1) The construction of policy was a matter for the court in accordance with the decision of the House of Lords in Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; [2012] PLSCS 69. There was presumption against development of the type proposed unless the considerations identified in Policy M7 (a) or (b) applied. Therefore, it was necessary either first to identify whether those considerations applied and then to decide the matter with or without reference to the presumption or, alternatively to proceed on the basis of the presumption, ascertain whether it was rebutted by the considerations identified in (a) or (b) and decide the matter accordingly. Either approach should lead to the same result, correctly reflecting the land use planning merits in the specified policy context. No presumption came into play in relation to the decision whether the factors identified in (a) or (b) existed so as to exclude the operation of the presumption. To proceed on any contrary basis would be erroneous since the existence of a presumption could not be determined by the effect of the presumption itself.
(2) However, the decision whether or not the factors in (a) or (b) existed had to be taken in the context of central government advice as embodied in MPG3 which constituted a stressing of particular features of open cast mining development and an indication of a desirable evidential weighting in favour of the local assessment in relation to the evaluation of costs and benefits, both of which were potentially relevant at all stages of the decision-making process. Therefore a decision in that context ought to include a clear and self-standing assessment as to whether the negative presumption in Policy M7 applied. That assessment had to reflect the evidential weighting in favour of local assessment referred to in the central government advice. Once that had been determined, the significance of other material considerations needed to be evaluated, leading to a final determination.
(3) In the present case, on a proper reading of the decision letter, the inspector had failed correctly to understand, analyse and apply Policy M7. By conflating or confusing the evidential weighting to be given to the local assessment of the costs and benefits of an open cast proposal with the potential existence of a negative presumption the inspector had circumvented the need to decide, independently of any presumption (albeit with an evidential weighting in favour of the local assessment), whether or not the negative presumption arose at all. That was a serious failure correctly to understand the policy framework against which the relevant decisions had to be taken.
(4) Furthermore there was nothing in the decision letter as a whole to set against what appeared to be a misunderstanding of the central policy against which the proposed development fell to be considered. The irreducible minimum to which the claimant had been entitled was a decision which accurately stated policy, and in particular the development plan policy which had to lie at the heart of the determination, and then applied that policy with sufficient clarity to enable the claimant to appreciate that its case had been fairly disposed of. The inspector’s decision letter had failed to do that and had to be quashed.
Timothy Corner QC (instructed by Nabarro LLP) appeared for the claimant; James Strachan QC (instructed by the Treasury Solicitor) appeared for the first defendant; Alan Evans (instructed by Durham County Council Legal Department) appeared for the second defendant.
Eileen O’Grady, barrister
