Tue, 28 Feb 2023
Planning analysis: The Court of Appeal rejected a challenge to a decision by a County Council to grant planning permission for the extraction of pulverised fuel ash from a site within the green belt. The main issue was whether the members of the relevant planning committee had been misled by the officer’s report in relation to the interpretation of a development plan policy. The court said that the committee had not been so misled and further rejected a challenge concerning the alleged failure of the County Council to consider alternative sites for the proposal. Written by Howard Leithead, barrister at No5 Barristers’ Chambers.
R (on the application of Whitley Parish Council) v North Yorkshire County Council and another [2023] EWCA Civ 92
What are the practical implications of this case?
This case was primarily concerned with the interpretation of a planning officer’s report. The judgment referred to the case of Mansell v Tonbridge and Malling BC [2017] EWCA Div 1314, where the Court of Appeal made clear that the court will review an officer’s report with realism and common sense, avoiding an excessively legalistic approach. The Court of Appeal in that case further said that the court will not focus merely on the phrasing of individual sentences or paragraphs in an officer’s report, without seeking their real meaning when taken in context, and that the court will not interfere unless the effect of the report was to mislead members significantly on a material issue.
The present case concerned the interpretation of particular words in a particular context. It does not provide any widespread significance and it raises no new point of law. However, it again emphasises the difficulty of challenging decisions on the basis of statements contained within officer’s reports. Such challenges do succeed, but potential claimants should bear in mind that the court will not entertain excessive legalism and that the relevant statements must be clearly misleading.
What was the background?
The first respondent, North Yorkshire County Council (‘the County Council’) granted permission for the extraction and export of pulverised fuel ash from Lagoons C and D and Stages II and III of the Gale Common Ash Disposal Site and associated development, with improvement works to local roads (‘the planning permission’) from a site within the green belt following an application (‘the application for planning permission’) made by the second respondent, EP UK Investments Ltd (‘EP UK’). The appellant, Whitley Parish Council (‘Whitley PC’), challenged the permission by means of an application for judicial review. This was dismissed by Mr Justice Lane in the High Court and Whitley PC appealed to the Court of Appeal.
What did the court decide?
The officer’s advice on Policy 7/3
The main issue in the appeal was whether the planning committee of the County Council which determined the application (‘the planning committee’) was led into error by a planning officer’s advice on the weight to be given to a development plan policy. The relevant provision of the development plan was criterion a) of Policy 7/3 (‘Policy 7/3’) of the North Yorkshire Waste Local Plan (2006) (‘the Waste Local Plan’). This stated that proposals to re-work deposited waste would only be permitted where the proposals represented the ‘Best Practicable Environmental Option’. Other text in the Waste Local Plan stated that the concept of ‘Best Practicable Environmental Option’ was a guide to decision-making that had originated in the Government’s Waste Strategy 2000. However, the Waste Strategy 2000 was replaced in 2014 by the National Planning Policy for Waste, in which the concept of ‘Best Practicable Environmental Option’ did not feature.
As a consequence of this, Policy 7/3 was out-of-date because it conflicted with national policy. Paragraph 213 of the National Planning Policy Framework (2019) said that ‘existing policies should not be considered out-of-date simply because they were adopted or made prior to the publication of this Framework’ and ‘[due] weight should be given to them, according to their degree of consistency with this Framework (the closer the policies in the plan to the policies in the Framework, the greater the weight that be given)’.
The Parish Council argued that the effect of advice given to planning committee by the officer who wrote the officer’s report (‘the OR’) was that ‘no weight can be given’ to Policy 7/3 and that this misled the members of the committee. The OR included statements such as (at paragraph 6.20):
‘…However, whilst the Best Practicable Environmental Option was national waste policy 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…’
And also (at paragraph 7.5):
‘…There is also no longer a requirement in national waste planning policy to establish whether a proposal represents the ‘Best Practicable Environmental option’ so, as stated in paragraph 6.20 above, no weight can be given to part a) of Policy 7/3.’
In his judgment, with which the rest of the court agreed, Sir Keith Lindblom SPT said that when read sensibly in context, and without undue benevolence, the relevant passages of the OR clearly embodied the giving of planning advice, informed by planning judgment and that it could not be realistically suggested that the officer was doing anything other than this, or that the members could have thought that she was. He further said that the nature of the advice was relevant: it was advice on the ‘weight’ to be attached to material considerations intrinsic in a policy of the development plan and such questions were fundamentally for the decision-maker.
Alternative sites
The appellant further argued that the High Court judge erred in two ways: a) he relied on a flawed analysis of the advice the committee was given on Policy 7/3 and b) because of this the judge found that the consideration of alternatives was not required by the development plan. Sir Keith Lindblom SPT said that his conclusions on the interpretation of Policy 7/3 were relevant and then made three further points.
These were: firstly, that the argument went nowhere once it was accepted that criterion a) in Policy 7/3 was rationally and lawfully given no weight in the making of the decision; secondly, that in the circumstances there was no legal requirement for the County Council to take the exceptional course of identifying and considering alternatives to the application site and proposal; and thirdly, that the County Council did not ignore the possibility of alternative proposals being brought forward to meet the need for pulverised fuel ash, and alternative means of carrying out the proposed operation at the application site. Thus, the judge said that it was perfectly rational and lawful for the officer and the committee not to have regard to alternatives.
Section 31(2A) of the Senior Courts Act 1981 (‘SCA 1981’)
Finally, Sir Keith Lindblom SPT said that the Court of Appeal did not need to consider the duty in SCA 1981, s 31(2A), which required the court to consider ‘if it appears…to be highly that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred’. However, he said that it would have been at least arguable that it would have been highly likely that the Council’s decision would have been the same if the alleged errors had not occurred, particularly bearing in mind the absence of any alternative site or proposal.
Case details
- Court: Court of Appeal, Civil Division
- Judges: Sir Keith Lindblom (Senior President of Tribunals), Lord Justice Dingemans and Lord Justice Edis
- Date of judgment: 3 February 2023
Howard Leithead is a barrister at No5 Barristers’ Chambers. If you have any questions about membership of our Case Analysis Expert Panels, please contact caseanalysiscommissioning@lexisnexis.co.uk.
Richard Kimblin KC and Howard Leithead acted for the Appellant in the Court of Appeal.
