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Generative AI: A global guide to key IP considerations
Artificial intelligence (AI) raises many intellectual property (IP) issues.
United Kingdom | Publication | 三月 2022
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.
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.
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.
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Artificial intelligence (AI) raises many intellectual property (IP) issues.
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