Norfolk County Council’s decision to grant planning permission for a household waste recycling centre (“HWRC”) within a designated AONB was challenged by the Claimant. The Claimant runs an outdoor education facility for children approximately 30m from the Site and a proportion of the children have special educational needs and other vulnerabilities. The proposed HWRC is a replacement for an existing HWRC facility on a site almost adjacent to the one for which planning permission was granted.
The Claimant brought the judicial review challenge on six grounds, one of which was withdrawn. However, this article focuses on grounds 1 and 5 only as they provide useful guidance on two concepts that LPAs often have to grapple with: assessment of alternative sites and obligations under s.149 of the Equality Act 2010. The article also looks briefly at ground 2 which pertains to the definition of “major development” under paragraph 183 of the NPPF.
Ground 1 – alternative sites
The Claimant challenged NCC’s decision on the basis that it unlawfully failed to consider alternatives to the Site, including a specific site known as the Stonehill Way Site. The Claimant argued that NCC was legally required to investigate and assess alternatives both under a common law duty and a duty which arose under specific policies in the Development Plan. NCC accepted that it did have a duty to consider alternatives under the relevant Development Plan policies but it did not accept that it had some other common law duty to consider alternatives. Due to this concession, the Court narrowed its focus to the real issue under this ground, which was whether the consideration of alternatives undertaken by NCC was legally sufficient ([61]). Therefore, the Court found, the challenge was akin to a “Tameside” challenge (i.e. whether a sufficient enquiry was undertaken into alternative sites).
On this issue, Mrs Justice Lieven found that the consideration of alternative sites was sufficient and concluded as follows:
“65. In my view the consideration of alternatives was legally adequate. It is accepted that a legal duty to consider alternatives did arise. However, what investigations are undertaken and the adequacy of the information on alternatives involves the exercise of planning judgement. The level of investigation of alternative sites, both in terms of the quantity of sites considered and the detail in relation to each individual site, can vary enormously. This will be a function of the nature of the proposal, the scale of the negative impacts and the relevant need. So, as but an example, a proposal for a nuclear power station is likely to involve a lengthy and very detailed assessment of alternative sites (and technologies) because of the very significant impacts of the development. That will be at one end of the spectrum of the level of required consideration of alternatives.
- It has to be remembered that investigation of other sites will take both time and expense. Such time and expense and thus the investigation of alternatives, must be proportionate to the potential harm from the development. Therefore the level of that investigation will depend on the scale of the potential negative impacts on the development, the prospective benefits of the alternative sites and the level of need/urgency for the development. Given that these are necessarily issues of planning judgement, in my view the Court should only intervene and say the consideration of alternatives was legally inadequate if the approach of the Local Planning Authority is Wednesbury (Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 22) irrational. Essentially, the issue is one of the scope of necessary investigation, which is similar to a Tameside challenge.” (emphasis added)
The Officer’s Report in this case had acknowledged the limitations of the alternative sites exercise and was clear on its face that more could have been done. It also acknowledged that there could be other alternative sites because the assessment carried out was limited and it was due to these limitations that the Proposal was found to have been in conflict with the relevant Development Plan policies on requiring assessment of alternatives. It was open to NCC to find that, notwithstanding, the consideration was sufficient to grant planning permission due to the limited negative impacts of the HWRC and the need for a new one. There was nothing irrational about this conclusion reached by NCC.
Comment:
Where a duty arises to consider alternative sites, LPAs should be confident that it is within their planning judgement to determine what level of investigations into alternative sites is proportionate and necessary. The level of investigation required will depend on the nature of the proposal, the scale of the relative impacts and the relevant need for the proposal.
Ground 5
The Claimant argued that NCC had failed to meet the requirements of s.149 of the Equality Act 2010 in that the Officer’s Report itself did not amount to having “due regard” to equality issues – it made no reference to PSED nor did it have regard to the particular make-up of the cohort of children at Hilltop, where there is a higher proportion of children with ADHD and other disabilities which increases their sensitivity to noise. The Claimant argued that an Equalities Impact Assessment (“EqIA”) should have been drawn up.
The Court rejected this argument for two key reasons but before delving into these reasons, Mrs Justice Lieven remarked that “what is required to be done to meet the ‘due regard’ duty will necessarily vary depending on the facts and context of the particular decision in question. [R (Sheakh) v Lambeth LBC [2022] PTSR 1315] establishes that there is no requirement to produce an EqIA in every case where equalities impacts are raised, the question for the court is whether on the facts of the case ‘due regard’ was given.” ([101])
The Court found that there were two factors which lead to the conclusion that the level of consideration necessary to meet the “due regard” duty under s.149 is relatively low in this case. First, was the low degree of likely impact on the children with protected characteristics and, second, the information which was given to NCC about the vulnerable cohort of children.
NCC had carried out a detailed noise impacts assessment which had considered the impact on the children at Hilltop and there was no evidence that the noise impacts will be any greater than what is currently the case since there is already an HWRC in the vicinity of the Site, which will cease and be replaced by the proposed HWRC. The only part of Hilltop which would be affected is the open playing field and this is an open air use which is already situated in an area close to a main road and an HWRC; in addition, the acoustic fence proposed would materially reduce the noise impacts from the Site. It was also relevant that the NCC officer had not found any complaints about the existing use of the HWRC nor had he found any evidence on NCC being made aware of concerns raised by Hilltop relating to children with particular characteristics ([109]-[110]).
The Claimant, at the consultation for the planning application, had only referred to “child protection” concerns and made no reference to the possible additional impact on children with disabilities and particular vulnerabilities. As such, the Court found that it was reasonable for the NCC Officer to assume that the children attending Hilltop would have the same characteristics as the rest of the population (i.e. the proportion of children with disabilities would in broad terms follow that of the general population). The Claimant argued that, notwithstanding this, it was NCC’s duty to investigate the nature of the cohort of children. However, the Court held that “the level of investigation that is necessary will turn on the particular context, see Sheakh at [15]. The Court of Appeal said that the decision maker should be concerned with the obvious impacts, and is not under a duty to investigate every detail. Here, the LPA was entitled to rely upon the information it had been given by the Claimant as to its own site users. This is not a situation where there was a broad and undefined group where a decision maker might have to take a more proactive approach to investigate potential impacts. Here there was one user, Hilltop, who had made representations and who necessarily had the full information about the children with protected characteristics upon whom they now seek to rely. It was therefore entirely reasonable for the LPA to assume that Hilltop would have drawn attention to any particularly vulnerable users.” (emphasis added) ([114])
Therefore, the Court found that NCC did meet its obligations to have “due regard” to the issues since the Officer’s Report dealt appropriately with the noise impacts on Hilltop, namely the impacts on children. Although the NCC officer had assumed the proportion of children with disabilities would be the same as that of the wider population and this now seemed to not be the case, this did not make any difference to the facts of this case since, there was no evidence as to how likely impacts from the proposed HWRC would have led to any different conclusions on the application.
Comment:
This case considered some of the key recent judgements on s.149 of the Equality Act 2010 – see [96] – [99] of the judgement. The LPA’s duty to have “due regard” is vital and must be complied with, however, what investigations are required to satisfy this duty will turn on the facts of each case (for example, where a PSED case turns on impacts on a general group, a further investigation may be necessary, but where the PSED is said to apply to one group at a specific institution, then the LPA can rely on the representations by that institution as to the vulnerabilities of its cohort in its exercise under s.149).
Ground 2 – paragraph 183 of the NPPF
Paragraph 183 of the NPPF 2023* stated:
“183. When considering applications for development within National Parks, the Broads and Areas of Outstanding Natural Beauty, permission should be refused for major development (footnote 64) other than in exceptional circumstances, and where it can be demonstrated that the development is in the public interest. Consideration of such applications should include an assessment of:
- a) the need for the development, including in terms of any national considerations, and the impact of permitting it, or refusing it, upon the local economy;
- b) the cost of, and scope for, developing outside the designated area, or meeting the need for it in some other way; and
- c) any detrimental effect on the environment, the landscape and recreational opportunities, and the extent to which that could be moderated.”
Footnote 64ª stated:
“For the purposes of paragraphs 182 and 183, whether a proposal is ‘major development’ is a matter for the decision maker, taking into account its nature, scale and setting, and whether it could have a significant adverse impact on the purposes for which the area has been designated or defined.”
The Claimant argued that the Council took into account irrelevant considerations, namely that the HWRC is “essential infrastructure” and that there was already an HWRC in its vicinity, in concluding that the HWRC was not “major development”. Alternatively, the Claimant argued, that it was irrational for NCC to conclude that it was not major development. The Claimant relied on the definition of “major development” in the Town and Country Planning (Development Management Procedure) England Order 2015 (“DMPO 2015”), which includes “waste development” as a type of “major development”.
NCC accepted that the two considerations mentioned by the Claimant were indeed irrelevant considerations, however, they argued, that these were non-material errors and the Court agreed with NCC’s position. This was because in addition to those considerations, NCC had also considered the size of the facility, its low levels of throughput and the low likelihood of any increase in traffic movements. These were all proper considerations in concluding that the Proposal was not “major development”.
The Court also found that the high bar of irrationality was not met since it was open to NCC to conclude that the HWRC was not “major development” given its relatively small size, its low throughput levels compared to Environment Agency’s Standard Rules Permits for HWRCs and its location. An LVIA had also concluded that the impacts would be minor adverse within its immediate context and moderate adverse at Site level, which the Court found was sufficient to support a finding that there were no significant adverse impacts.
Comment:
The Court did not explicitly consider what the implications of the DMPO 2015 definition are on the relevant NPPF paragraphs, but its acceptance of NCC’s conclusion implies that, although “major development” within the DMPO 2015 includes “waste development”, all “waste development” will not automatically amount to being “major development” for the purposes of paragraph 183 (now paragraph 190) of the NPPF.
*In the NPPF 2024, this is now paragraph 190, which replaces the term “Areas of Outstanding Natural Beauty” with the term “National Landscapes”.
ª This is now Footnote 67
