Whitley Parish Council, R (on the application of) v North Yorkshire County Council & Anor
[2023] EWCA Civ 92
Project Genesis Limited v Secretary of State for Levelling Up, Housing and Communities & Ors
21 February 2024
[2024] EWHC 368 (Admin)
High Court
A company wanted to build a power plant that burns trash. The government said no because it would be too ugly. The company sued, but the judge agreed with the government, saying the plant would indeed be too visually damaging to the surrounding countryside.
Key Facts
- •Statutory review of the Secretary of State's decision to dismiss an appeal against refusal of planning permission for an energy from waste facility.
- •The facility would process 60,000 tonnes of Refuse Derived Fuel per year, generating 3.48MW of electricity and exporting heat.
- •The development site is 1.64 hectares within the Hownsgill Industrial Park, near Consett.
- •The Claimant, Project Genesis Limited, is a company controlled by a charitable trust focused on Consett's regeneration.
- •The Council refused planning permission due to concerns about harm to the landscape, AONB, and heritage assets.
- •An Inspector recommended allowing the appeal, finding benefits outweighed harms.
- •The Secretary of State dismissed the appeal, emphasizing harm to the Area of Higher Landscape Value (AHLV).
- •Four key issues were agreed: the interpretation of Policy 39 (AHLV), the weight given to landscape impacts, the weight given to benefits, and the compliance of a Community Infrastructure Levy (CIL) obligation with Regulation 122(2).
Legal Principles
Judicial review principles apply to statutory review of planning decisions.
Town and Country Planning Act 1990, s.288
Section 38(6) of the Planning and Compulsory Purchase Act 2004 governs decisions where there's conflict with the development plan.
Planning and Compulsory Purchase Act 2004, s.38(6)
Planning policies should be interpreted straightforwardly.
Corbett v Cornwall Council [2022] EWCA Civ 1069 at §19; Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314 at §41
In assessing planning applications, the decision-maker must consider all evidence with an open mind and undertake a reasonable sufficiency of enquiry.
R (Suffolk Energy Action Solutions SPV Ltd) v Energy Security Secretary [2023] EWHC 1796 (Admin) at §§65-66
A planning obligation must be necessary, directly related, and fairly and reasonably related in scale and kind to the development (Regulation 122(2) of the Community Infrastructure Levy Regulations 2010).
Community Infrastructure Levy Regulations 2010, SI 2010/948, reg. 122(2)
Significant weight should be placed on supporting economic growth and productivity (NPPF §81).
National Planning Policy Framework (NPPF), §81
Substantial additional positive weight should be given to applications incorporating combined heat and power (CHP) (EN-1 §4.6.8).
Department of Energy and Climate Change's July 2011 Overarching National Policy Statement for Energy (EN-1), §4.6.8
Outcomes
Claim dismissed.
The court found no misinterpretation of Policy 39, no unlawful or unfair approach to the weight of landscape impacts, no disregard of government policies on benefits, and no unlawful disregard of Schedule 8 of the UU.
Developer to pay the Secretary of State's costs.
Standard costs order following dismissal of the claim.
Developer not to pay the Council's costs of its acknowledgment of service.
The AOS was not required for participation, and the Council's submissions overlapped with the Secretary of State's.
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