High Court decision clarifies key legal principles in planning permission for energy from waste facility

Citation: [2024] EWHC 368 (Admin)
Judgment on

Introduction

Project Genesis Limited v Secretary of State for Levelling Up, Housing and Communities & Ors is a High Court decision that addresses the legal principles surrounding planning permission for an ‘energy from waste’ facility. The case delves into statutory review on multiple grounds including misinterpretation of policy, the process surrounding the weighing of visual impacts, the attribution of weight to benefits within the planning balance, and compliance with the Community Infrastructure Levy (CIL) regulations.

Key Facts

Project Genesis Trust proposed a development of an energy facility in the Hownsgill Industrial Park which was refused by the Council. Upon appeal, the Secretary of State, with a recommendation from the Inspector, dismissed the appeal. The Inspector had recommended approval subject to conditions, but the Secretary of State disagreed on grounds of policy conflict and material considerations. Four key issues arose, relating chiefly to landscape harm, unfair process in reevaluating weight afforded to certain impacts, government policies on benefits of the development, and a planning obligation aimed to alleviate local fuel poverty as per CIL Regulation 122(2).

The legal principles in play involve a range of planning and judicial review laws, regulations, and policies including:

  1. Section 288 of the Town and Country Planning Act 1990 - Governs the statutory reviews of decisions made by the Secretary of State related to planning permissions.
  2. Regulation 122(2) of the Community Infrastructure Levy (CIL) Regulations 2010 - Sets criteria for when planning obligations can be considered as a reason for granting planning permission.
  3. The National Planning Policy Framework (NPPF) - Provides guidance for planning decision-making.
  4. Overarching National Policy Statement for Energy (EN-1) - Offers policy basis for considering energy developments, such as the substantial weight given to developments incorporating Combined Heat and Power (CHP).
  5. Regulation 122(2) Compliance - A planning obligation’s compliance with being necessary for the development, directly related, and being fairly and reasonably scaled.
  6. Judicial review principles like reasonableness and sufficiency of inquiry (applying R (Save Stonehenge WHS Ltd) v Transport Secretary).
  7. Case law precedents such as Tesco Stores Ltd v Secretary of State for the Environment and R (Wright) v Forest of Dean District Council, which guide interpretation of material considerations and connection to the development respectively.

Outcomes

The court dismissed the claim on all four issues:

  1. AHLV Policy Misinterpretation - The court found that the Secretary of State did not misinterpret Policy 39 regarding development affecting AHLVs. The consideration that development outside the AHLV but affecting it can still engage Policy 39 was deemed reasonable.

  2. Process in Evaluating Visual Impact - The Secretary of State’s different weight attribution to certain landscape/visual impacts was lawful, and no site visit was required as the process was fair and involved reasonable enquiry.

  3. Weight to Benefits - The Secretary of State did not disregard government policies on attributing substantial weight to certain benefits. The aggregation of CHP benefits and development’s potential for attracting further development carried significant weight, as per NPPF and EN-1 guidelines.

  4. CIL Regulation 122(2) - The Secretary of State correctly found the UU Schedule 8 aimed at alleviating fuel poverty not compliant with CIL Regulation 122(2). There was no direct connection, proportionality, or necessity established between the development and the planning obligation under Schedule 8.

Conclusion

In the final judgment, the court maintained that the Secretary of State’s decision to dismiss the appeal was legally sound. The decision elucidates how planning obligations must clearly relate to and address the impacts of the development. It also clarifies the high threshold for reevaluating the Inspector’s assessments of visual and landscape impacts and underscores the importance of strict adherence to policy provisions and CIL regulations in planning permissions. This case will serve as a significant reference for practitioners in interpreting and applying planning policies, engaging with judicial review standards, and understanding the intricate balance between development benefits and harms within the UK legal framework.

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