Court of Appeal upholds planning permission for pulverised fuel ash extraction

In a comprehensive judgment handed down on Friday 3rd February, the Court of Appeal has dismissed an appeal seeking the quashing of a planning permission to extract pulverised fuel ash from a previously worked site.  The central question in the appeal was whether the county planning authority was led into error by its planning officer’s advice on the weight to be given to a development plan policy (Policy 7/3) on the “Best Practicable Environmental Option.”

In the officer’s report to Committee, the officer outlined the fact that part a) of the Policy required that it should be demonstrated that the proposal was the Best Practicable Environmental Option available in the context of the policies of the Plan and that part b) of the Policy required that the proposal should achieve material planning benefits that would outweigh any environmental or other planning harm which might result.  She then stated as follows (at para 6.20):

“However, whilst the Best Practicable Environmental Option was national waste policy in 2006, it is not part of the National Planning Policy for Waste (2014).  Hence, it is not considered that part a) of this policy can be given any weight in determining this application.  However, it is considered that, because part b) relates to the consideration of whether the benefits of re-working of a deposited waste outweigh any “environmental or other planning harm”, then moderate weight can be given to this policy. […]”

Whitley Parish Council claimed that the effect of this wording (and wording to similar effect in paragraph 7.5 of the report) was to mislead members of the Committee into thinking that they were legally barred from giving any weight to part a) of the development plan policy.  This argument was rejected by Lane J in the High Court and firmly rejected again in the Court of Appeal, where Lindblom LJ said:

“In both of those passages of her report the officer was unmistakeably providing to the members her planning advice on the weight to be attached to Policy 7/3, and to each of its criteria, in the making of their decision, and the advice she gave was based on her own planning judgment.  The advice was consistent and unequivocal – that in her opinion no weight could be given to criterion a), but moderate weight could be given to criterion b).  And the reason stated for the advice is intelligible and logical: that in the case of criterion a) the concept of “Best Practicable Environmental Option” was no longer a feature of relevant and up-to-date government policy published since the adoption of the waste local plan, and had no place in a planning assessment conducted in accordance with that policy; but that in the case of criterion b) the balancing of benefits on the one hand and environmental or other planning harm on the other was still a relevant and necessary exercise.

Read sensibly in context, and without undue benevolence, these two passages of the report clearly embody the giving of planning advice, informed by planning judgment.  Like the judge, I do not think it can realistically be suggested that the officer was doing anything other than this, or that members could have thought that she was.  In paragraph 6.20 she used the expression “it is not considered that” to make it clear that she was giving advice which represented her view on the question of weight.  She did not need to repeat that expression in paragraph 7.5, which explicitly took the members back to paragraph 6.20”

The Court emphasised that it was appropriate for the officer to give clear and unequivocal advice on what was, unusually in matters of weight, a binary issue.  Whether weight was to be given to part a) of the policy would determine whether or not the county council would have been justified in insisting on the assessment of “Best Practicable Environmental Option” being performed (see para 49 of the Judgment).

The Court also relied on the officer’s style of writing throughout the report and the inferences that could be drawn from that:

“As for the wider context of the officer’s report read as a whole, Ms Wigley and Mr Booth were right to emphasise the use of the expressions, in the passive voice, “it is considered that” and “it is not considered that”, and also the phrase “can be given”, when the officer was attributing weight to a particular consideration – as she was in paragraph 6.20.  Such language appears repeatedly throughout the report, including a number of passages where the officer was expressing her view, and advice, as a matter of planning judgment on the weight to be given to particular material considerations in policies in the development plan, whatever this might be within the spectrum from no weight to full weight [……] It is consistent with the obvious sense of those and similar references in the officer’s report to regard her observations in paragraphs 6.20 and 7.5 on the weight to be given to criterion a) of Policy 7/3 as the articulation of her planning advice based on the exercise of planning judgment.”

The Judgment provides a useful recap of the caselaw on how to read officers’ reports and is a good example of how reading the report ‘as a whole’ makes clear how individual phrases are to be interpreted. The case is also interesting for its discussion on the lack of a need to consider alternatives.  It emphasises that the policy requirement to demonstrate very special circumstances for inappropriate development in the Green Belt does not automatically import a requirement to show the absence of a suitable alternative site that is not in the Green Belt.  The issue of alternative sites does not become a mandatory material consideration just because the development is in the Green Belt; the extent to which alternatives need to be explored is a matter of judgement for the decision maker  (Judgment at paras 56 to 57).

Jenny Wigley KC represented the Respondent, North Yorkshire County Council, in the Court of Appeal, with Andrew Parkinson appearing in the High Court.

The Judgment may be accessed here.

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