Thu, 23 Jan 2020
This article was first published on Lexis®PSL Planning on 16 January 2020.
Planning analysis: In Haden v Shropshire Council, the High Court rejected a legal challenge to a local planning authority’s (LPA’s) decision to grant planning permission for development of a sand and gravel quarry in the green belt. Nina Pindham, a barrister at No5 Barristers' Chambers and counsel for the defendant, considers the case and its implications.
R (on the application of Haden) v Shropshire Council and another  EWHC 33 (Admin)
What are the practical implications of this case?
The decision provides helpful guidance on the court’s approach to a challenge to a planning permission granted for quarrying in the green belt. It also clarifies the relevant principles that apply to the environmental statement which may be needed, how to assess impact on the green belt and the application of the public sector equality duty.
What was the background?
The development permitted by the planning permission was a sand and gravel quarry on some 44.53 hectares of agricultural land in the green belt. The development included a final two-year restoration period and the formation of landscaped screening mounds. The grounds of claim focused on the adequacy of the environmental statement accompanying the planning application; on the impact of the development on the openness of the green belt, and the public sector equality duty.
What did the court decide?
The main issue concerned the adequacy of the information contained within the environmental statement for the development. The judge confirmed that R (Hardy) v Cornwall County Council  Env LR 25 established that the decision as to whether outstanding information falls within the ambit of either Pt 1 or Pt 2 of Sch 4 of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, SI 2011/1824 (which set out what must and may be included in an environmental statement) will always be intensely fact sensitive. The first question will be whether the LPA could rationally conclude that any outstanding information did not amount to ‘significant adverse effects’ or ‘main effects’. If the information could amount to ‘significant adverse effects’ or ‘main effect’, the next question would be whether the LPA could rationally conclude that those significant or main effects were not likely. The claimant in this case argued that on a proper understanding of the Environment Agency’s consultation responses, Shropshire Council should have decided that there was inadequate evidence upon which to conclude that significant effects were not likely. The judge dismissed that argument on the basis that Shropshire Council was entitled to conclude, on the evidence before it, that the outstanding information did not amount to likely ‘significant adverse effects’ or ‘main effects’. The judge confirmed that it was not necessary for all uncertainty to be resolved in order to achieve compliance with the requirements of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011.
In respect of the development’s impact on the green belt, the main issue was how Shropshire Council considered the impact of the screening bounds on the openness of the green belt. The argument focused on the conclusions in the officer’s report that the impact would be ‘localised’ only and would not harm the openness of the green belt overall. The judge held that this was a lawful conclusion for Shropshire Council to come to, as it was a matter of judgment and the exercise of that judgment was one open to Shropshire Council on the evidence before it.
The final main issue concerned the impact of the development on two sensitive individuals with health concerns which could be affected by adverse air quality in the area. Shropshire Council had carried out a full Equalities Impact Assessment (EqIA) of the development and had imposed conditions and a legal agreement requiring the ongoing monitoring of any air quality effects of the development. Prior to the development commencing, the applicant had carried out background air quality monitoring so there was an established air quality baseline against which to assess any impacts. The judge found the EqIA was sufficient to discharge the public sector equality duty in section 149 of the Equality Act 2010. The law did not require a particular outcome, only that rigorous consideration had been given to the duty. Assessing the impacts in light of national air quality standards (as opposed to some unspecified individual standard) was reasonable because that metric was based on what was scientifically known about the effects of pollutants on health and on the environment. The failure to specify what ‘trigger’ levels in the monitoring would lead to the need to carry out mitigation measures was criticised, but this too was dismissed on the basis that the schemes to come forward under conditions and the agreement under section 106 of the Town and Country Planning Act 1990 would, due to their terms, necessarily have to include trigger levels.
- Court: High Court (Queen’s Bench Division)
- Judges: Mr Justice Stuart-Smith
- Date of judgment: 14 January 2020
Nina Pindham practices exclusively in planning and related areas of law, specialising in environmental law. She has acted in some of the leading strategic environmental law cases of the past few years. Much of her practice comprises of advising and representing both the development industry and decision-makers and she has substantial experience in the fields of housing, heritage, protected species, environmental impact assessment (EIA), strategic environmental assessment (SEA), waste and minerals development. She is ranked as a Tier 1 barrister in the Legal 500, as a leading junior in Chambers and Partners, and as a leading junior barrister in Planning magazine. In Haden she was counsel for the successful defendant.
Interviewed by Kate Beaumont.
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