England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE FC3 96/6241/D

(MR JUSTICE HARRISON )

IN THE MATTER OF AN APPLICATION FOR LEAVE TO MOVE

FOR JUDICIAL REVIEW

Royal Courts of Justice

Strand

London WC2

Friday, 7 February 1997

B e f o r e:

LORD JUSTICE BUTLER-SLOSS

LORD JUSTICE BROOKE

SIR JOHN BALCOMBE

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THE QUEEN

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DERBYSHIRE COUNTY COUNCIL

EX PARTE DAVID GEORGE WOODS

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(Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

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MR ANDREW GILBART QC & MR WILLIAM BIRTLES (Instructed by Tyndallwoods, Birmingham, B15 3BE) appeared on behalf of the Applicant

MR JOHN HOBSON (Instructed by Deputy Chief Executive and Head of Legal Services, County Hall, Matlock, Derbyshire) appeared on behalf of the First Respondent (Derbyshire County Council)

MR GERARD RYAN QC & MR DOUGLAS EDWARDS (Instructed by Glossops, Chesterfield, S40 1LQ) appeared on behalf of the Second Respondent (Fitzwise Limited)

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J U D G M E N T

(As approved by the Court )

©Crown Copyright

LORD JUSTICE BUTLER-SLOSS: I will ask Brooke LJ to give the first judgment.

LORD JUSTICE BROOKE: This renewed application for leave to apply for judicial review relates to a very major scheme for the development of land south of Chesterfield in the valley of the River Rother, in Derbyshire. The development site embraces 410 acres, about 40% of which is severely contaminated, and the scheduled overall timescale of the development is just under three and a half years. The developers Fitzwise Limited (“Fitzwise”) made four main development proposals - to extract 473,000 tonnes of opencast coal; to reclaim the former Avenue Coke Works and bury contaminated material from those works in one of the opencast voids; to restore the land to agriculture, amenity and a landform capable of use for industrial development; and to construct a road and bridge linking the A61 and the B6038 roads.

Their application for planning permission was lodged with the Derbyshire County Council (“the Council”) on 20th March 1995, and the decision which is impugned in these proceedings was made over a year later, on 29th April 1996, by its Planning and Countryside Sub-Committee. The sub-committee approved the greater part of the proposals, subject to detailed conditions and the making of a section 106 agreement (whose terms have not yet been finally negotiated), but it rejected the proposals so far as they related to a small part of the site, which is close to the home of the applicant, Mr Woods, and to his children’s schools.

Mr Woods lives in Grassmoor, Chesterfield, about 800 metres from the former Coke Works site. He is in receipt of incapacity benefit, because he is in poor health, and his three young children go to local schools. His eldest son suffers from asthma, as does his father-in-law, who lives much closer to the site. Mr Woods’s house lies to the south-east of the site, and he says that the prevailing wind blows in his direction from the site about five days out of seven, although we were shown technical evidence which puts this contention very much in issue. He is concerned with the effect of noise, dust and vibration from the proposed works on his and his family’s health and on the amenities of their life.

For the purposes of this application for leave the proposed respondents, who are Fitzwise and the Council, took no substantial point on Mr Woods’s standing to make this application, although they wished to reserve their position on this point for the substantive hearing, if leave is granted by this court. (See Inland Revenue Commissioners v National Federation of Self-Employed Businesses Ltd [1982] AC 617 per Lord Diplock at pp 643-4). Mr Ryan argued that a local citizen is not entitled to challenge the grant of planning permission by way of judicial review even if he can disclose an error of law in the way it was made and can also show that he and his family would be detrimentally affected, so far as their health is concerned, if the grant of permission is not quashed, but I did not consider that this was one of his best points, and he did not press it very hard. See, for instance, R v Canterbury City Council ex p Springimage Ltd [1993] 3 PLR 58 at p 61, and R v King’s Lynn BC ex p Bolam [1995] JPL B 53.

Mr Woods applied very promptly, on 16th May 1996, for leave to apply for judicial review of the Council’s decision, and his application was dismissed by Harrison J a week later following a two-day hearing. He now renews his application to this court, and Mr Hobson and Mr Ryan have argued that in the particular circumstances of the case he faces a higher threshold of arguability than is normally applicable to renewed ex parte applications of this type. He must establish that his case “is not merely arguable but is strong; that is to say, is likely to succeed” (per Glidewell LJ in Mass Energy Ltd v Birmingham County Council [1994] Env LR 289 at pp 307-308). The reason for this, they say, is that (i) we have heard detailed inter partes argument; (ii) there is unlikely to be a substantially greater number of points taken at the substantive hearing than are taken at the inter partes hearing; and (iii) that the interests of both of them would be prejudiced by continued uncertainty as to the lawfulness of the decision under challenge - Fitzwise because they wish to proceed with the development on which they have invested a substantial amount of up-front costs, and the Council because one of the aims of the development is to achieve at an earlier date than might otherwise be possible the pre-existing planning goal of making this land available for industrial use. Mr Gilbart argues on the other hand that he should only be required to show a reasonable prospect of success: in particular, further evidence would be needed at an inter partes hearing to establish what happened at the sub-committee’s meeting and in particular what matters were and were not taken into account and discussed during the course of that meeting. He accepts that the effect of a full inter partes hearing is to make it easier for the Court to form a judgment of the prospect of success. For my part, in what is essentially a discretionary matter, I would adopt on the facts of this case an approach that is somewhere between the two that are advocated by opposing counsel, but in the event I do not consider that anything turns on this distinction.

The development proposal which is under challenge is of a type mentioned in Schedule 2 to the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 (“the Assessment Regulations”). This means that an environmental statement (see Schedule 3) had to be lodged with the application, and that the application had to be publicised by local advertisement and site display in the manner required by Article 12B(3) of the Town and Country Planning General Development Order 1988 (now Article 8 of the Town and Country Planning (General Development Procedure) Order 1995). The appropriate publicity (including the posting of site notices) was given to the proposal at about the end of March 1995. The regulatory scheme obliged the Council to take account of representations made in response to such publicity if such representations were made reasonably quickly (see Article 22A of the 1988 Order; now Article 19 of the 1995 Order), but this prescribed period for receiving representations had been completed by about 20th April 1995, over a year before Mr Woods’s very detailed representation reached the Council.

Mr Hobson has pointed out, correctly, that the extensive consultation exercise the Council in fact undertook, which is described in the papers before the court, went well beyond the minimum required of it by statute. It conducted formal consultation with a considerable number of relevant national and local statutory authorities (see Article 18 of the General Development Order 1988 for the minimum requirements) and other bodies, and it also arranged several public meetings: the minutes of the last of these meetings (which Mr Woods attended), on 29th February 1996, were placed before the sub-committee: they are also now before the court.

It was on the following day that his solicitors first contacted the Council. Despite the lateness of his appearance as an objector, the Council’s solicitor made it clear, by a letter dated 16th April 1996, that the Council would take into account any material representations he might wish to make, and on Friday 26th April 1996 his solicitors posted to the Council a 20-page letter of objections, which was accompanied by two reports by experts, 16 pages and 8 pages long respectively, and two Opinions of junior counsel relating to different aspects of the legality of the proposals, which covered another 14 pages. They also sent the technical reports by fax to the relevant Council officers that day, and copies of all these documents, including the solicitors’ letter, were delivered by hand to each member of the sub-committee two days before their meeting. Members had also been supplied with a very long, detailed, report from the Council’s Chief Planning and Highways Officer which has quite rightly been described by counsel as a model of its kind.

One of the reasons for the late delivery of Mr Woods’s representation was that the Environmental Statement sought by his solicitors on 1st March 1996 is a massive document, when all its appendices are taken into account, and a copy was not finally supplied to them by Fitzwise, at the Council’s request, until 22nd April. It is not suggested that Fitzwise did not comply satisfactorily with their obligations under the Assessment Regulations to make a sufficient number of copies of the statement available for inspection long before Mr Woods’s solicitor appeared on the scene, and they, perhaps understandably, took some time to produce this additional copy. At all events, the extreme lateness of the arrival of his representation was not, to that extent, Mr Woods’s or his advisers’ fault.

The sub-committee’s deliberations started with an opening two-hour session at the Grassmoor Methodist Hall, when it received presentations from Fitzwise and from representatives of the three local parish councils, who all objected to the scheme, and permitted a discussion of relevant issues. This was followed by a site visit during which the merits of the proposal were viewed from various locations. The day was completed with a reconvened meeting at Matlock which lasted about an hour, at the end of which members decided to accept the Chief Officer’s recommendations. Available to the sub-committee was not only the original Environmental Statement, supplemented by other information the Council had required Fitzwise to produce, but also the observations of the various pollution control authorities the Council had consulted, including Her Majesty’s Inspectorate of Pollution, the North East Derbyshire District Council Environmental Health Officer, and the National Rivers Authority. Those authorities were generally content with the way the Council was approaching the matter, and, apart from the Environmental Health Officer, had no separate points to raise on their own account.

In dismissing the application the judge was of the opinion that the consultation exercise, looked at as a whole, could not in the circumstances be said to be unfair. He said that if the applicant had raised important new issues which the sub-committee had treated as cavalierly as Mr Woods had suggested in his affidavit he would have had little difficulty in concluding that leave should be granted. As it was, he considered that no important new issues had been raised and the Council’s consideration of the application could not be impugned. At the end of the day, he said, most of the matters raised by Mr Woods related primarily to matters of judgment, and the challenge to the way the Council exercised its judgment raised no properly arguable case warranting the grant of leave.

On the renewal of Mr Woods’s application in this court, Mr Gilbart has narrowed his range of challenge. I for my part am indebted to him for the clarity and conciseness of his submissions, and for his admirable willingness to drop points when he realised that they were no longer properly arguable. Since standing was not seriously in issue at this stage, the points he raised were three in number: whether the Council gave adequate consideration to the representations made to it by the applicant and other objectors; whether it failed to take into account four specific issues which he identified as giving rise to material considerations, including relevant aspects of guidance on national policy; and whether it considered and interpreted correctly national policy as set out in Minerals Planning Guidance Note 3, paragraphs 60-61. The first two of these points are to a considerable extent bound up with each other. It is, of course, common ground that in determining a planning application a local planning authority must have regard “to the provisions of the development plan, so far as material to the application and to any other material considerations” (Town and Country Planning Act 1990, s 70(2)).

In his well-known judgment in Bolton MBC v Secretary of State for the Environment [1991] 6 P&CR 343 Glidewell LJ at pp 352-3 gave useful guidance about the expression “a material consideration” when it is found in a planning context. First, the decision maker ought to take into account a matter which might cause him to reach a different conclusion to that which he would reach if he did not take it into account (“might” in the sense of a real possibility); and secondly, there is a distinction between material matters which statute obliges the decision maker to take into account, and those which arise from the nature of the decision and its subject matter: in the latter case, in the event of a challenge, it is for the court to decide if they should have been taken into account.

The first part of this guidance contains an echo of the language used by Parliament in 1906 when it codified the principles of the common law that governed the non-disclosure of material circumstances in relation to contracts of marine insurance. Section 18(2) of the Marine Insurance Act 1906 reads: “Every circumstance is material which would influence the judgment of a prudent insurer in fixing the premium, or determining whether he will take the risk” (emphasis added). The House of Lords has recently held that in this context a material circumstance is one that would have an effect on the mind of such an insurer: it is not necessary to show it would have had a decisive effect ( Pan Atlantic Insurance Company Ltd v Pine Top Insurance Ltd [1995] 1 AC 501). Mr Ryan helpfully suggested that for a consideration to be material in a planning context, it must raise an issue relating to land use of sufficient importance to justify consideration by the deciding authority .

If Mr Woods’s representations had been “duly made”, they would have constituted part of the environmental information the authority was bound to take into consideration before making its decision (see Regulation 4(2) and the definition of “environmental information” in Regulation 2(1) of the Assessment Regulations). The reference to a representation being “duly made” must, in my judgment, mean a representation made within the time prescribed by the regulations then current (see Middlesex County Council v Minister of Housing and Local Government [1953] 1 QB 12 at p 18). Since they were not made in time, it will be for the court to decide whether the Council ought to have had regard to any of Mr Woods’s points, although the lateness of their arrival might be a relevant factor to bear in mind when considering, as a matter of discretion, whether leave should be given.

I can dispose of three of the four specific issues raised by Mr Woods quite quickly. The first was dust control. Fitzwise had commissioned a report from consultants describing the likely environmental impact of dust associated with the proposed development, and recommending measures which should be taken to reduce any disturbance caused by dust. The nature of this issue, and the advice which members received from the Chief Planning Officer about it, were set out by him on pp 40-41 of his report in these terms:

“Dust emissions from opencast sites largely arise from the handling of large volumes of overburden on site and the movement of dump trucks and other plant on internal haul roads. The recognised methods employed to control dust include the damping down of working areas and haul roads and the seeding of topsoil and overburden mounds to prevent wind blow. Inevitably, some dust will leave the site however fastidiously such methods are employed and lead to concerns from surrounding communities. The applicant’s consultants have recommended the adoption of an extensive list of dust control measures and it is generally recognised that detailed monitoring of the site and good site management are the best approach to ensuring the potential for dust nuisance is minimised. Excavation, handling and backfilling into the containment cell of the contaminated material could result in the possible release of contaminated dust into the atmosphere during this phase of the site development. Subject to the employment of the control regime recommended by the Environmental Health Officer and other pollution control bodies, which would be incorporated into conditions if planning permission is granted, the contaminants are unlikely to be of sufficient concentration to pose a health risk”

Mr Gilbart’s main attack on the Council related to its failure to take into consideration the chemical content of the dust that would be raised, particularly during the course of demolition, waste handling and ultimate landfilling. However, after he had heard Mr Hobson explain the nature of the conditions which had been imposed by the Council to deal with this matter, he quite rightly abandoned his challenge under this head and I need say no more about it.

The second issue of this type related to vibration. Here Dr Down, who was one of the experts retained by Mr Woods, was concerned that some properties would be affected by vibration, and that the impact of vibration was not assessed in the Environmental Statement. Although blasting was not proposed, the operation of large-scale diesel plants 12 metres from occupied property was likely to give rise to ground vibration, he said, and probably to “air blast” airborne vibration from exhaust pulsation.

The Council’s comment on this criticism was that neither Dr Down nor Mr Woods suggested anywhere that there would in fact be any adverse impact to Mr Woods’s or any other property resulting from vibration. Mr Ryan added that the only operations which were predicted to occur 12 metres away from the property to which Dr Down referred were limited to the construction of a screening bund and were unlikely to be of more than a few days’ duration. Mr Gilbart did not press this point in oral argument, and it does not seem to require any further elaboration from me.

The third issue of this type was that the Council did not take account of other possible courses of action whereby the Coking Works land might have been reclaimed without the environmental disbenefits which would inevitably flow from the opencast mining side of the proposals. Mr Woods’s solicitor had suggested that in due course funds from at least two sources (either English Partnerships or a European body known as RECHAR) might be available for the reclamation of this site. If such money were available, this consideration would affect the weight which could reasonably be placed on the benefits flowing from the proposal.

The context in which this submission was made can only be understood by reading the part of his report in which the Chief Planning Officer dwelt on some of the positive aspects of Fitzwise’s proposal. He referred to the continuing contamination of the local groundwater and the River Rother and the eyesore, 68 hectares in area, represented by the derelict works, and he wrote enthusiastically about the strategic possibilities that would be opened up if these reclamation works were carried out in the manner Fitzwise was proposing. He said he considered that the early removal of the existing obstacles to the redevelopment of the Avenue works would be a significant boost for the economic potential of the Chesterfield and North-East Derbyshire area.

Mr Hobson, for the Council, observed that at the end of April 1996 the possibility of a subsidy for the reclamation works was a matter of great uncertainty. In the circumstances he said that the judge was right when he held that in taking the view that the benefits of the composite scheme outweighed its disbenefits, the sub-committee was “perfectly entitled to opt for the certainty of early remediation backed by a bond from the willing developer rather than leave it to the uncertainty of the future”. Although Mr Woods’s solicitor has sworn a further affidavit about the matter, the possibility of alternative sources of financial aid for reclamation is still clouded by uncertainty and even if it was not, Mr Hobson argued that his clients were perfectly entitled to take the view they adopted last April. Mr Ryan complements this argument by adding that in the light of the prevailing uncertainty about such a possibility, it would have been inappropriate for the Council to have taken the possible involvement of either of these bodies into account. I agree.

The fourth, and most substantial issue raised by Mr Woods relates to the standard by which the level of noise associated with the proposed development should be controlled. According to Dr Down the position here is that in relation to opencast coal operations the relevant Mineral Planning Guidance (MPG 11) covers, in effect, a period between April 1993 and April 1998. Because the proposed opencast mining operations were to last until at least the end of 1999, the local planning authority ought to have taken into account the tougher noise controls which he considers are bound to come into effect after April 1998.

He says that because of its historical position as a nationalised industry, coal was regulated in planning and environmental terms less severely than private non-coal mining operations. According to him the government has acknowledged that such a situation is untenable in the long term, and moves have been made to bring coal into the general mineral planning and environmental regime. Under this regime there is a maximum level of 55dB leq of noise permitted at noise-sensitive areas during the daytime, and quieter rural areas should be considered for a more restrictive level, under which noise levels of more than 10dB leq above the existing background noise level (L90) would be banned (MPG 11, paragraphs 34 and 37). Dr Down has studied the “worst case” scenarios depicted at the 12 noise-sensitive properties which were selected by the Council as being representative of the places nearest to the proposed operations. At present the daytime background readings there include two where the reading is between 37.5 and 40, and six with readings above 40 and below 45, so that at all these properties a noise level of 55dB leq would be more and in some cases considerably more, than 10dB leq above the daytime background level. He says that other planning authorities have taken the view that where a proposed development will continue beyond the 1993-98 transitional period, noise control conditions attaching to the consent should be those relevant to the period after 1998.

The approach of the Council’s Chief Planning Officer was to apply the guidance contained in MPG 11 without consideration of the limits likely to be recommended after April 1998 and without lowering the limits in quieter areas along the lines suggested in paragraph 37 of MPG 11. Thus members’ attention was drawn to the fact that apart from the really noisy activities of soil stripping and replacement, which could largely be carried out within the limit of 70dB leq suggested in MPG 11 (see paragraphs 42 and 61), all other operations, with the single exception of part of the overburden movement, could be carried out well within a 55dB leq limit. Some operations were predicted to exceed the 60dB leq limit as “worst case” predictions, but it was stressed to members that the 55dB leq limit would not be exceeded for most of the site’s working life: the higher predictions were only likely to be experienced for periods lasting a few days and not for longer periods of time. His advice referred to a number of recommendations which were likely, if implemented, to reduce the predicted “worst case” levels to below the 60dB leq limit suggested by MPG 11, and the conclusion of Fitzwise’s Noise Assessment Report, whose findings he had no reason to question, were that it would be possible to work the site with a maximum noise level set at 60dB leq.

Mr Ryan submitted that his clients’ proposals complied with the guidance contained in MPG 11. He contended that his clients and the Council were entitled to rely on paragraphs 31-43 of MPG 11 which provide guidance on the setting of noise limits under the heading “Recommended method of setting noise limit values”. In general this guidance recommends the setting of absolute values for limits in site-attributable noise, linked to daytime and night-time working periods. During the working week the daytime nominal limit should normally be 55dB leq (paragraph 34), but this could be raised in the circumstances expressly permitted by paragraphs 40 and 42 of MPG 11, and his clients have not departed from the rules set out in this guidance.

In the event the sub-committee imposed the noise control conditions recommended by the Environmental Health Officer. These by and large created a limit of 55dB leq outside all noise-sensitive properties except for those adjoining the A61, for which a limit of 60dB leq was permitted Those properties are on the other side of the site from Mr Woods's house. Certain operations were excepted from this blanket control, and these were limited to a total maximum of 8 weeks in any period of 12 months (as suggested in paragraph 62 of MPG 11): for these a maximum level of 70dB leq would be permissible.

In a letter to the Council dated 3rd April 1996 the Environmental Health Officer expressed his views on a document prepared by “White Peak Friends of the Earth” which, he said, reflected local opinion. On the noise objections he said this:

“Whilst it would be preferable that [coaling] areas 4A and 6A were not worked due to the noise implications, where residential or other noise-sensitive buildings will be exposed to a predicted increase of more than 10dB in background noise, the owners or occupiers should be offered a noise insulation package and works carried out to affected facades.

It does not appear from the evidence before the Court what, if any, action was taken by the Council in relation to this suggestion. It does not feature among the conditions of the planning permission, but on page 40 of his report to the sub-committee the Chief Planning Officer said that discussions with Fitzwise regarding noise limits were still ongoing. What, in my judgment, is of much greater significance is that at the two locations (No 8, Scott Close, and No 9, Grasshill Farm) which are at all close to Mr Woods’s home in Grassmoor (and even they are at least half a mile away) the background noise levels were 51dB(A) and 45.1dB(A), so that a noise limit of 10dB leq above background noise level would have been no tougher at those points than the general limit of 55dB leq that was in fact imposed.

Since a general noise limit of 55dB leq was in fact in place in relation to the operations on the side of the site closest to Mr Woods’s home, by the end of the argument Mr Gilbart in effect conceded that the only substantial point left to him here was that the Council had failed to consider whether it would be appropriate to adopt a lower nominal daytime limit of 10dB leq above existing background noise levels, as suggested by paragraph 37 of MPG 11.

For my part I would be very reluctant to grant Mr Woods leave to apply for judicial review if the only material consideration said to have been overlooked by the Council in considering a major development on this scale was a passage in national guidelines phrased in terms as tentative as “A lower nominal daytime limit might be appropriate ...”. Although the position would have been more satisfactory if there was evidence that the Planning Officer had in fact considered the point and advised members in terms that they might wish to consider adopting this approach (even in relation to opencast coal operations taking place before April 1998), what in my judgment is decisive is that the different limit would have made no difference at all to the inhabitants of Grassmoor, including Mr Woods (because of the existing background noise levels at locations 8 and 9). If taken literally it could have made things rather worse than they will be under the regime in fact imposed by the Council. In these circumstances I am satisfied that the point is a bad one.

Mr Gilbart’s final point was that the Council failed to take into account national policy as set out in paragraphs 60-61 of MPG 3, when properly interpreted. Paragraphs 60 and 61 of MPG 3 are two paragraphs which appear under the heading "Consideration of planning objections and benefits" and are in these terms:

"60. Where there are material planning objections to a proposal, [mineral planning authorities] should take into account any material arguments which might outweigh these. These could include the clearance of dereliction or other improvements to the land and economic benefits such as the contribution to, or maintenance of, local, regional or national employment. There may also be other positive aspects of the proposal such as the provision of a certain grade of coal for blending or other specialised requirements.

61. However, there will be cases where the particular impacts, either singly or together, would have such an adverse effect on the environment and on the quality of life for a locality that planning permission should not be given unless the development would produce overriding benefits."

Mr Gilbart submits that the implementation of this policy involves a two-stage test:

(a) whether the benefits of the development outweigh the harm it would cause - a test of simple balance (paragraph 60);

(b) whether the impacts on the environment or the quality of life are such that planning permission should not be given unless the development would produce overriding benefits (paragraph 61).

Application of the second test, he says, must mean that in such cases the balance must not merely be weighted in favour of the benefits, but substantially so if this test is to add anything to the first test: the degree of advantage against disadvantage must be that much greater. He submits that in the context of an application like the present one which would have a particularly adverse effect on the environment and on the quality of life for the locality, the Council failed to take into account the more stringent test it should have adopted, although the need to apply this test had been drawn to its attention by Mr Woods’s solicitor.

What happened in this case is that when the Chief Planning Officer summarised his Planning Conclusions on pp 42-43 of his report, he drew attention to what he called the major benefits of the proposals, and weighed them against the inevitable disturbance which they would create and the way in which the quality of life of local residents would be diminished while the operations continued. After mentioning other disbenefits, such as the loss of wildlife habitats and the extra traffic on the roads, he concluded:

“Members will appreciate that this is a complex proposal which needs careful consideration of both the benefits and disbenefits which I have sought to set out. This application presents a set of circumstances where the problems arising from the Avenue Works and associated areas can be remedied. It must be acknowledged that this can only be realistically achieved at the expense of a degree of inconvenience and disruption to local residents and the areas in general. For the main part of the site between Wingerworth and Grassmoor I am of the view that on balance, subject to the recommendation, the benefits for residents in this area outweigh the disadvantages."

He then went on to make the recommendation, which members accepted, that the proposals relating to the isolated southern area of the scheme, where the operations would be very prominent and visually disruptive, should be refused permission because there the disbenefits outweighed the benefits.

Mr Hobson, for his part, argued that the relevant parts of the policy guidance did not impose a two stage test. He said that Paragraph 61 merely reflects what might be thought to be axiomatic, namely that the more severe the environmental impact the greater the degree of benefit that was required to outweigh it. All that is needed is for a single balance to be struck, weighing all the benefits against all the objections, and this is what the Chief Planning Officer did.

Mr Ryan put his argument rather differently. He submitted that the fact that the Council did not consider that any of the disbenefits of the proposal, either alone or cumulatively, were so great as to require his clients to show overriding benefits before their application for planning permission could be allowed, involved consideration being given to the weight to be attached to those benefits. He said that it is well established that the weight to be attached to a material consideration is a matter for the council as the determining authority and not for the court ( Bolton MBC v Secretary of State for the Environment (1991) JPL 241). Mr Gilbart accepted this as a correct proposition of law, but he said that the court is concerned to ensure that the decision maker asked himself the right questions and applied the right tests.

If there is a dispute about the meaning of the words included in a policy document which a planning authority is bound to take into account, it is of course for the court to determine as a matter of law what the words are capable of meaning. If the decision maker attaches a meaning to the words they are not properly capable of bearing, then it will have made an error of law, and it will have failed properly to understand the policy (see Horsham DC v Secretary of State for the Environment [1992] 1 PLR 81, per Nolan LJ at p 88). If there is room for dispute about the breadth of the meaning the words may properly bear, then there may in particular cases be material considerations of law which will deprive a word of one of its possible shades of meaning in that case as a matter of law.

This, in my judgment, is the underlying principle of law which Auld J was putting into words in his judgment in Northavon DC v Secretary of State for the Environment [1993] JPL 761. When discussing the meaning of the expression “institutions standing in extensive grounds”, the report reads at p 763:

“The words spoke for themselves and were not readily susceptible to precise legal definition. Whether a proposed development met the description was in most cases likely to be a matter of fact or degree and planning judgment. He [the judge] said ‘in most cases’ because it was for the Court to say as a matter of law whether the meaning given by the Secretary of State or one of his Officers or Inspectors to the expression when applying it was outside the ordinary and natural meaning of the words in their context. See Gransden (EC) v Secretary of State for the Environment (1987) 54 P&CR 86, per Woolf J, as he then was (upheld by the Court of Appeal [1987] JPL 465). The test to be applied by the court was that it should only interfere where the decision-maker’s interpretation was perverse in that he has given to the words in their context a meaning that they could not possibly have or restricted their meaning in a way that the breadth of their terms could not possibly justify."

An example of the way in which in a particular context a court may as a matter of law restrict the range of possible meanings that a word is capable of bearing is to be found in the recent judgment of Lord Woolf MR in R v Radio Authority ex p Bull and Wright (unreported, 17th December 1996), with which I expressly agreed. Section 92(2)(a) of the Broadcasting Act 1990 refers to a “body whose objects are wholly or mainly of a political nature”, and Lord Woolf said that he accepted that “51% or 99% and anything between” were candidates for a possible meaning of the word “mainly”. However, since the word was found in that context in a provision which constituted a restriction on freedom of communication (a freedom protected alike at common law and by the European Convention of Human Rights), the ambiguous word “mainly” was to be construed restrictively. By this he meant that it should be construed in a way which limited the application of the restriction to bodies whose objects were substantially or primarily (ie at least 75%) political.

If in all the circumstances the wording of the relevant policy document is properly capable of more than one meaning, and the planning authority adopts and applies a meaning which it is capable as a matter of law of bearing, then it will not have gone wrong in law.

For a recent example of the way these well-known principles are applied in a planning context, see Cooper v Secretary of State for the Environment [1996] JPL 945, where Mr Lockhart-Mummery QC, sitting as a deputy high court judge, said correctly at p 953 that the need for consistency in the construction of policies as between two policy sources might be a relevant consideration when determining the meaning which the words in a policy document were capable of bearing. But the decision whether a dangerous inconsistency might in fact exist on one interpretation of the words (so as to suggest that a particular meaning should be afforded to them in the circumstances) would be a matter in the first instance for expert planning judgment, and not a matter of law. A court would only intervene if that judgment was demonstrated to be perverse, or otherwise bad in law.

In the present case, it is necessary to remember that MPG 3 is not a set of rules written by lawyers for lawyers. It is a Guidance Note on Coal Mining and Colliery Spoil Disposal provided by the government for mineral planning authorities and for the coal industry, and it should not be interpreted as if it contained the words of a statute. It is of course correct that in his Report the Chief Planning Officer did not expressly adopt a test which required him to ascertain whether the development would produce overriding benefits. It is equally clear that he did not expressly consider whether this was indeed a case where the particular impacts, either singly or together, would have such an adverse effect on the environment and on the quality of life for the locality that the special Paragraph 61 test, whatever it means, should be applied.

Putting aside the language of the guidance note, Counsel were all agreed that the greater the disbenefit of a proposal involving the development of coal resources and the disposal of colliery spoil, the greater the countervailing benefits would have to be before planning permission could properly be granted. As a matter of English language, although the metaphor is different, there is little discernible difference in sense between the word “outweigh” and the word “override” when used in a context like this. Perhaps the authors of this guidance note preferred to use a different, more vivid metaphor in relation to a proposal for a development of this kind in a greenfield site as opposed to a site which was variously and non-controversially described by the Chief Planning Officer as a “contaminated and derelict area” and an “eyesore”. However that may be, I am wholly unpersuaded that it is properly arguable that the Council failed to take proper account of national policy guidance, as set out in Paragraphs 60-61 of MPG 3, when it decided to grant permission for this development.

For all these reasons, I would dismiss this application.

SIR JOHN BALCOMBE: I agree.

LORD JUSTICE BUTLER-SLOSS: I also agree.

Order: renewed application to move for judicial review refused; applicant (Mr Woods) to pay the costs of the First Respondent (Council), such costs pursuant to Section 18 to be paid by the Legal Aid Board; legal aid certificate for the applicant; no order as to costs in respect of the Second Respondent.