Protect Dunsfold Ltd v Secretary of State for Levelling Up, Housing and Communities & Ors
[2023] EWHC 1854 (Admin)
Whitley Parish Council, R (on the application of) v North Yorkshire County Council & Anor
3 February 2023
[2023] EWCA Civ 92
Court of Appeal
A council approved a plan to dig up old coal ash. Someone challenged the decision, saying the council didn't consider other options and got bad advice. The court said the council followed the rules and the advice wasn't bad, so the plan was approved.
Key Facts
- •Whitley Parish Council appealed against North Yorkshire County Council's grant of planning permission to EP UK Investments Ltd for pulverised fuel ash extraction.
- •The appeal concerned the application of Policy 7/3 of the North Yorkshire Waste Local Plan (2006), specifically criterion a) on the 'Best Practicable Environmental Option'.
- •The planning officer advised the committee that criterion a) could not be given weight due to changes in national waste policy.
- •The appeal also challenged the council's failure to consider alternatives to the proposed development.
- •The decision rested on the chairman's casting vote in the committee.
- •The development was located in the West Yorkshire Green Belt and involved extracting approximately 23 million tonnes of ash over 25 years.
Legal Principles
Planning authorities must determine applications in accordance with development plan policies unless material considerations indicate otherwise.
Section 38(6) of the Planning and Compulsory Purchase Act 2004
The weight given to material considerations is for the decision-maker, subject to judicial review on public law grounds.
Tesco Stores Ltd v Secretary of State for the Environment [1995]
Planning committees exercise their own judgment, informed by officers' advice, considering local circumstances and policies.
R (on the application of Morge) v Hampshire County Council [2011]
Judicial review focuses on errors of law, reviewing decisions with realism and common sense, not merely precise phrasing.
Mansell v Tonbridge and Malling Borough Council [2017]
Inconsistency between development plan policies and subsequent national policies doesn't automatically justify giving no weight to the plan policy.
City of Edinburgh Council v Secretary of State for Scotland [1997]
Alternative proposals are considered only in exceptional circumstances.
R (on the application of Mount Cook Land Ltd.) v Westminster City Council [2003]
Relief should be refused if the outcome would likely be the same even if the conduct complained of had not occurred.
Section 31(2A) of the Senior Courts Act 1981
Outcomes
Appeal dismissed.
The court found the planning officer's advice was not misleading and that the committee's decision was a lawful exercise of planning judgment. The council rationally gave no weight to criterion a) of Policy 7/3 and was not legally required to consider alternatives beyond those already addressed.
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