R (on the application of Whitley Parish Council) v North Yorkshire County Council

Mini-summary

Permission granted for extraction of pulverised fuel ash (PFA) and associated development from ash disposal site in green belt (GB). Very special circumstances (VSC) justified development. Claimant advanced 6 grounds of challenge, all grounds failed. Case provides summary and reminder of correct approach to interpreting officer reports (OR) to committee, in particular in the context of GB policy. Grounds included: (1) disaggregating appropriate and inappropriate aspects of the development; (2) failing to consider “other harm” alongside GB harm; (3) officer view that no weight could be given to a policy; (4) need to consider alternatives. Held (1) sensible to consider proposed built development in context of existing buildings, this was part of VSC assessment; (2) reference to mitigation of harm by condition made clear “other harm” considered; (3) weight to give to a policy a matter of planning judgement, officer entitled to express view; (4) alternatives only to be considered in exceptional circumstances.

What are the practical implications of this case?

• Kemnal Manor Memorial Gardens Ltd v First Secretary of State [2006] 1 P. & C.R. 10. Held: it is not appropriate to divide up proposed GB development into those parts which would be appropriate development in the GB and those parts which would be inappropriate development. A proposed development is not acceptable in GB policy terms merely because part of it is appropriate. Development to be viewed as a whole.
• R (Langley Park School for Girls Governing Body) v Bromley LBC [2010] 1 P. & C.R. 10. Held: 
  • if the main issue identified in an OR report is impact on openness and visual amenity, and the OR contains no analysis of the impact, and no conclusion on the injury to openness and visual amenity, then it would be impossible for committee members to reach a conclusion given the lack of information; 
  • where there is a clear planning objection to development, it is likely it will be relevant, and may be necessary, to consider whether an objection could be overcome by an alternative proposal. That principle must apply with equal, if not greater, force if the objection could be overcome is the development was sited differently within the application site.
• Timmins and Anor v Gedling Borough Council and Anor [2014] EWHC 654 (Admin). Held:
  • in the absence of detailed reasons from a planning committee, a Court can prima facie assume that the guidance, advice and recommendations contained within the OR were accepted; 
  • if available notes of a planning committee can be referred to and assessed;
  • members of planning committees can be treated as: well versed in the issues that relate to their locality and having local knowledge and understanding; and having some experience in planning matters. It is cannot therefore be assumed that every infelicity of language or expression by the officer or every misdescription of the relevant test will have exerted any material impact upon the Committee. They may well have recognised and ignored infelicities and ambiguities.  
• Seddon v Secretary of State for the Environment (1981) 42 P&CR 26. Held: it is no part of the court's duty to subject planning decision to the kind of scrutiny appropriate to the determination of the meaning of a contract or a statute.
• South Lakeland District Council v Secretary of State for the Environment [1992] 2 AC 141. Held:  decision letters should be read fairly and as a whole and without excessively legalistic textual criticism.
• South Somerset District Council and the Secretary of State for the Environment v David Wilson Homes (Southern) Ltd (1993) 66 P & CR 83. Held: an inspector is not writing an examination paper and decision letters must be read in good faith.
• Clarke Homes Limited v Secretary of State for the Environment and East Staffordshire District Council (1993) 66 P & CR 263. Held: ask whether the decision leaves room for genuine as opposed to forensic doubt as to what has been decided and why. A straightforward down-to-earth reading of a decision letter must be taken without excessive legalism or exegetical sophistication.
• South Bucks District Council v Porter (No 2) [2004] UKHL 33; [2004] 1 WLR 1953. Held: the reasons given for a decision must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal controversial issues, but the reasons can be briefly stated. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law but such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration and a reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.
• Redhill Aerodrome Ltd v SSCLG and others [2015] PTSR 274. Held: in considering material considerations it might be the case that some harm but not significant, severe, or substantial harm is identified e.g. to biodiversity or a heritage asset.  These will be material considerations pointing against the grant of permission, although these might each alone be insufficient to warrant a refusal.  The weight to be given to such harm is a matter for the decision maker in light of the policies in the NPPF. The position is no different if the site is in the GB, and VSC are required to justify inappropriate development.  Here harm to the GB by reason of inappropriateness and any other harm must be clearly outweighed by other considerations. The harm identified to e.g. biodiversity and heritage could be weighed by the decision maker in that balance. 
• R (Lee Valley Regional Park Authority) v Epping Forest DC J.P.L [2016] 1009-1033. Held: the NPPF identifies what is appropriate and inappropriate development in the GB. Inappropriate development is by definition harmful, appropriate development is not. This is a matter of policy, not planning judgement.
• R (Mansell) v Tonbridge & Malling BC [2019] PTSR 1452. Held the correct approach to an OR is:
  • these are not to be read with undue rigour, but with reasonable benevolence, and bearing in mind that these are written for councillors with substantial local and background knowledge;
  • it may reasonably be assumed that, if the members followed the officer's recommendation, they did so on the basis of the advice given;
  • on a fair reading of the report as a whole, has the officer materially misled members on a matter bearing upon their decision, and the error has gone uncorrected before the decision was made? Minor or inconsequential errors may be excused. It is only if the advice in the OR is such as to misdirect the members in a material way – so that, but for the flawed advice it was given, the committee's decision would or might have been different – that the court will be able to conclude that the decision itself was rendered unlawful by that advice;
  • where the line is drawn between an officer's advice that is significantly or seriously misleading in a material way, and advice that is misleading but not significantly so, will depend on the context and circumstances in which the advice was given, and on the possible consequences of it. A significant error of fact, misdirection as to the meaning of a policy, or failure to provide advice on a matter the committee required to make a lawful decision are examples. 
• R (Samuel Smith old Brewery) Tadcaster and Anor v North Yorkshire County Council [2020] UKSC 3. Held: the NPPF had affected no significant change of approach from the former PPG 2 policies on the GB.
• R (Palmer) v Herefordshire Council [2017] 1 WLR 411. Held:
  • “background knowledge” (see Mansell above) includes a working knowledge of the statutory test for determining a planning application, and GB policy. If a district includes GB land it can be assumed that members would be experienced in dealing with GB policy in discharging their duties;
  • it can be assumed that members followed the advice given in the OR in the absence of contrary evidence.  
• R (Heath and Hampstead Society) v Camden London Borough Council [2007] 2 P & CR 19. Held: an inspector’s report is not to be construed as though it were a statutory instrument; this applies with even greater force to an OR to a planning committee. The report is to be read as a whole, not just the passages criticised. 

What was the background?

The case concerns the grant of planning permission by North Yorkshire County Council (NYCC) for the extraction of PFA from the Gale Common Ash Disposal Site, together with associated development. The site lies wholly within the GB. The resolution of NYCC’s planning committee, which led to the grant, was carried on the committee chair’s casting vote. The development was to be undertaken in phases over 25 years and involved the extraction of circa 23 million tonnes of PFA. Adverse landscape and visual effects on the GB were identified, including long-term cumulative landscape and visual effects and long-term operational effects. The site was be restored in phases with the intention that it would become a country park. Mitigation was agreed in the form of landscaping submissions before each restoration phase, the demolition and removal of all buildings and structures on restoration of the site, and a maintenance and after-care scheme.

The claimant advanced 6 grounds of challenge. The principal ones were:

(1) NYCC’s reasons for granting permission set out in the OR were contrary to the authority in Kemnal Manor. It was alleged that NYCC had disaggregated the appropriate and inappropriate aspects of the development.
(2) NYCC had failed to consider “any other harm arising from the proposal” alongside GB harm in deciding whether VSC existed, such as to permit development in the GB.
(3) The OR expressed a view that no weight could be given to a particular policy. This fettered NYCC’s discretion to give whatever weight it considered appropriate.
(4) NYCC failed to consider alternatives.

What did the court decide?

On grounds 1- 4 Lane J held:

(1) The OR concluded that the buildings proposed would not have a greater impact on openness than the existing development. Therefore the exception allowing additional built development in the GB (now NPPF paragraph 149(g)) applied.  The claimant alleged that this disaggregated the built aspects of the proposal, and it should have been considered as a whole. Held: it was sensible to consider if the built element of the development would have a greater impact on openness that the existing buildings. This did not take away from the question whether VSC existed. That question could only be answered by understanding the overall nature of the harms. Understanding the harm caused by the proposed built development was one aspect of this.  

(2) The OR identified various harms that were capable of amelioration by planning condition. “Other harms” were therefore identified and were relevant to the VSC assessment. There was no merit in the argument that the OR structure was wrong, the report assessed GB policies first before considering highways, local amenity, landscape and visual etc. and then provided a conclusion. Given the importance of GB policies it was understandable that these were addressed first. The judgment in Arsenal Football Club PLC and Secretary of State for Communities and Local Government and Anor [2014] EWHC 2620 (Admin) @33 was supported, namely that a decision will not necessarily: < p/>

““flow in a linear manor, part by part, paragraph by paragraph, with the conclusion at the end… . The reality is that the decision may have been breached by considering the material as a whole and not by a stage by stage process, each stage considered in isolation”. [105]

[…] “a particular part of a decision may be based not only on what comes before it but it may anticipate what follows.” [106]

It is an inescapable feature of human communication that one cannot say everything at once and that one therefore has to start somewhere. [107]

However, there are plainly limits to reliance on any interpretative principle that is based on considering the report as a whole. If, for example, there is a clear contradiction within a report, then the exhortation to read the document in its totality may not necessarily resolve the difficulty. […] there may be a conclusion that is so definite and final as to make it plain that the die has been cast at that point, thereby making it impossible to read any subsequent passages as having a material effect on that conclusion.” [108]

(3) Held:

“It is well-established that the weight to be attached to a planning policy is ultimately a matter of planning judgment; Bloor Homes v SSCLG [2017] PTSR 1283. In exercising that planning judgment, it is open to a decision maker to give a policy no weight.” [119]

An OR will include guidance, advice and recommendations. Planning committee members can be expected to be aware that an OR is a recommendation to the committee. The officer will have formed their own view on the weight to be attached to a policy in order to reach a recommendation. It was permissible for the officer to express the view that, in light of the reasoning, they had decided that no weight could be given to a particular policy. 

(4) Per R (Mount Cook Land Ltd) v Westminster CC [2003] EWCA Civ 1346 alternative proposals only fall to be considered in “exceptional circumstances”. It was rational in this case, given the nature of the development, for the OR not to have considered any particular alternative.