QUEEN'S BENCH DIVISION
(sitting in Leeds)
Leeds LS1 3BG
B e f o r e :
sitting as a Judge of the High Court in Leeds
| HARTLEYBURN PARISH COUNCIL
|- and -
|(1) SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
(2) NORTHUMBERLAND COUNTY COUNCIL
(3) HM PROJECT DEVELOPMENTS LTD
Andrew Fraser-Urquhart (instructed by Weightmans LLP) for the Third Defendant
Hearing dates: 31 May 2013
Crown Copyright ©
|LP||The Tynedale District Local Plan|
|RSS||The North East of England Plan Regional Spatial Strategy to 2012|
|NPPF||The National Policy Planning Framework|
|AONB||An Area of Outstanding Natural Beauty|
|NCC||Northumberland County Council|
|HPC||Hartleyburn Parish Council|
|HMPD||HM Projects Developments Ltd|
|SSCLG||The Secretary of State for Communities and Local Government|
|TCPA||The Town and Country Planning Act 1990|
|SPA||Special Protection Area|
|SAC||Special Area of Conservation|
|SSSI||Site of Special Scientific Interest.|
1.. That the Inspector misinterpreted or interpreted irrationally LP Policy NE 15.
2.. That the Inspector erred in his view that the national benefits outweighed the likely impacts to such an extent as to justify the grant of planning permission. He failed to carry out the balancing exercise envisaged by paragraph 149 of the NPPF.
3.. That the Inspector's conclusion that the potential harm to lapwings and the temporary diminishment of habitat cannot be justified and/or is inadequately reasoned.
4.. That the inquiry was procedurally unfair in relation to the Inspector's treatment of Dr van Steenis. In the light of the witness statement filed by the Inspector this ground is no longer pursued and I shall say no more about it.
3 The Law
3.1 Planning Law
1.. Under s 288(1)(b) TCPA any person aggrieved by a decision of SSCLG in a planning appeal under s 78 TCPA may apply to the High Court on two specified grounds including the ground that the action "is not within the powers of the Act". An application under section 288 may only be brought "on a point of law" and it is well-established that the grounds correspond to the grounds on which a claim for judicial review may be brought: [see for example, Ashbridge Investments Ltd v Minister of Housing and Local Government  1 WLR 1320 and per Carnwath LJ in E v SSHD  QB 1044 paras 40 – 43.] Even if the court were to find an error of law by a decision maker it nevertheless retains a discretion not to quash in the absence of real prejudice from that error.
2.. It is a fundamental principle of planning law that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision. Matters of planning judgment are within the exclusive province of the Secretary of State (per Lord Hoffman in Tesco Stores Ltd. v. Secretary of State for the Environment  1 WLR 759 at 780).
3.. The proper approach to a decision letter is to look somewhat broadly at the findings of the Inspector, his reasoning and his decisions, not sentence by sentence at the minutiae but at the real sense and basic content of the decision to which he has come (ELS Wholesale (Wolverhampton) Limited v. Secretary of State for the Environment  56 P&CR 69).
4.. The reasons given for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision (South Bucks District Council v. Porter (No. 2)  1 WLR 1953, per Lord Brown).
5.. 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 for the court to determine as a matter of law what the words are capable of meaning. (Tesco Stores Ltd v Dundee CC (SC(Sc)) UKSC 13) The approach to be taken must bear in mind the words of Lord Reed at paragraph 19:
"Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statue or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse…Nevertheless, planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean."
6.. In any case where an expert tribunal is the fact finding body the threshold of Wednesbury unreasonableness is a difficult obstacle for a claimant to surmount. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he is reaching a series of planning judgments. Since a significant element of judgment is involved there will usually be scope for a fairly broad range of possible views, none of which can be categorised as unreasonable. Moreover, the Inspector's conclusions will invariably be based not only on the evidence heard, but also on the impressions received on the site inspection. Against this background an applicant alleging an Inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgment faces a particularly daunting task (see R (Newsmith Stainless Ltd.) v. Secretary of State for the Environment, Transport and the Regions  EWHC 74 (Admin) paragraphs 6 to 8.
3.2 Summary Judgment
4 The Appeal Decision
(a) the character and appearance of the area and on the setting of the AONB; (b) the SPA, SAC and the SSSI and on protected species; and, (c) the living conditions of people in the locality in relation to matters that include visual impact, light emission, mines gas, flooding, ground stability, noise and dust.
Paragraph 142 of the Framework is clear that minerals are essential to support sustainable economic growth and our quality of life. In this respect and for the purposes of the third part of LP Policy NE15, if the extraction of coal were to meet an identified need in a sustainable manner (which are matters dealt with below), such a development could be seen to be in the national interest. Additionally and within this context, although coal could be mined in other locations, land remediation is an integral part of this proposal and ground conditions on the appeal site could not be addressed by opencast works elsewhere.
The ES found only one significant adverse effect on landscape character during the operational phase. This is in relation to the indirect moderate-substantial adverse effects of perimeter soil mounding on the neighbouring AONB. Beneficial effects are noted to result from the landscaping proposed through planting and habitat creation.
40.. The locality is undoubtedly a tranquil place. This tranquillity is experienced with the AONB. The appeal proposal would have an adverse effect on the tranquillity of the locality by increasing the actual and perceived levels of activity within it. However, this effect would be temporary.
42.. The importance of coal extraction is recognised within the Framework, along with the national interest in protecting the landscape and scenic beauty of the AONB. In this case the temporary period of extraction would be 36 months, with restoration and aftercare to follow…in many of the most significant views of the appeal site, the disturbed ground would be perceived as limited when seen within the context of the landscape around it.
43.. Accordingly and given the phasing proposed, the proposal would not be expected to result in a discernible and stark border of landscape character and quality between the AONB and the land around Halton Lea Gate.
These matters provide a high degree of confidence that the appeal site would be restored with the ecological and landscape mitigation works proposed.
62.. There is inter-visibility between the appeal site and the AONB and this is reflected in the Character Assessment's conclusion regarding the sensitivity of the landscape to opencast development. Due to the nature, scale and location of the appeal scheme, it would have an impact on the landscape in this area which is highly valued by many who made representations to the inquiry.
63.. The appeal proposal would have a moderate-substantial adverse impact that would be temporary and related to soil mounds prior to vegetation becoming established. However, the identified landscape effects need to be considered with reference to the circumstances of the appeal site, its position within this landscape and the scale of the setting, along with the scope of suggested planning conditions and the executed unilateral undertaking.
64.. While the appeal scheme would have a significant temporary effect on landscape, for the reasons above the evidence in this case has failed to show that the appeal proposal would be unacceptably harmful to the landscape qualities of the AONB and the rural character of the locality. Therefore and in respect to the first main issue, for the reasons above the appeal scheme would not conflict with RSS Policy 31, CS policy NE1, MLP policies EP3 and EP19, LP policy NE15, the SPD, and the relevant parts of the Framework.
79.. These doubts lead to the County Council's predicted loss of 12.5 to 14.5 breeding pairs from the site, although the appellant maintains that they can be accommodated in the mitigation areas if smaller territories in the 0.4-0.8 ha range are viable. Whether these birds, if displaced, would breed elsewhere is not known. Suitable habitat is present in the locality and such a displacement would be within the context of an estimated 4,000 breeding pairs of lapwings in Northumberland, 11,500 in Cumbria and 11,240 in County Durham. It is also noted that the annual lapwing loss/predation rate of approximately 70% would be likely to be a much more significant factor in the viability of breeding populations.
80.. It is accepted by both main parties that this would be an impact of moderate significance, which reflects the conclusion regarding the potential local impact of lapwing habitat loss within ES Table 11.8. Residual impacts are predicted, in ES Table 11.8, to be negative, but of minor to neutral significance depending on the rate of soil macrofauna re-colonisation and habitat restoration.
81.. Extended aftercare and wader mitigation areas are addressed by Schedule 2 of the unilateral undertaking. This mitigation would include a grazing regime that is currently absent from the management of habitats on the appeal site.
92.. The proposed development would provide 3.8 ha of new woodland within the appeal site and approximately 25 ha of grassland managed for breeding wading birds outside the application area. It would also replace over 2km of existing hedges that are noted to be in poor condition and create new ponds. These matters would meet the objectives of the Framework in relation to the conservation and enhancement of the natural environment. This provides some weight in favour of the appeal scheme.
93.. It is possible that some breeding pairs of lapwing would be displaced by the development. However, for the reasons above this potential harm, and any temporary diminishment of habitat for other species, would not be significant or unacceptable. There are a number of potential benefits from the appeal proposal. I find the scheme complies with LP Policies NE19 and NE20, and on balance, it also accords with CS Policy NE1 and RSS Policy 33.
Nevertheless, the Framework accords great weight to a number of matters which include the benefits of mineral extraction in paragraph 144, and conserving landscape and scenic beauty in paragraph 115. Landscape and scenic beauty are dealt with above, and the great weight to be attributed to the benefits of mineral extraction remains in this case.
168.. The Framework is unambiguous that the planning system should support sustainable economic growth and that this should attract significant weight in planning decisions. Any temporary harm that may result from the proposal, for example in relation to visual impact, needs to be balanced with the overall objectives of the three dimensions to sustainable development. The proposal would mine a finite resource. However, given the current need for coal importation, the low overburden to coal ratio in this location, and the wider economic benefits, extraction of coal at the appeal site would be a form of sustainable development.
186.. In this case the potential benefits of mineral extraction include: the provision of energy and reducing the carbon footprint of coal used in this country; the potential reinforcing of landscape features, even though this would take some time to be fully realised, and the County Council questions whether it would result in habitat improvements; additional rights of way and a new footbridge; a Community Trust Fund; economic benefits, which may be for the most part experienced in the wider economy; and, land remediation and stabilisation. There is no certainty regarding the future submission of a planning application for an equestrian centre in this location, and therefore the stated intention to do so attracts little weight in this case. Nevertheless, the remediation and stabilisation works would benefit users of the land by addressing existing hazards.
187.. The appeal scheme would be a temporary development that would be subject to planning conditions to address the potential effects of the scheme. It has not been suggested that these would be likely to include cumulative impacts and the appellant's evidence has sought to address all matters that may have an effect. To some extent the suggested conditions would be underwritten by provisions within the executed unilateral undertaking that would ensure the restoration and aftercare of the site in unexpected circumstances.
195.. Planning harm can occur regardless of the scale of the settlement involved. In this case significant planning harm has only been demonstrated in relation to the visual impact of the development and matters have been found that clearly weigh in favour of the proposal.
196.. With reference to paragraph 149 of the Framework, the appeal scheme would be a sustainable form of development that attracts great weight in relation to the identified benefits of the mineral extraction proposed. These matters and the associated planning policy compliance clearly outweigh the matters that weigh against it, including the identified harm and policy conflict.
5 LP Policy NE 15
1.. Priority will be given to the protection and enhancement of the landscape qualities of the North Pennines Area of Outstanding Natural Beauty as identified on the Proposals Map, when considering proposals for development.
2.. Development within or adjacent to the AONB which adversely affects the special scenic quality of the AONB will not be permitted.
3.. Any large scale development within or adjacent to the AONB will only be permitted, when it is proven to be in the national interest and there are no alternative sites in less sensitive areas.
6 The NPPF
... due weight should be given to relevant policies in existing plans according to their degree of consistency with this framework (the closer the policies in the plan to the policies in the Framework, the greater the weight that may be given).
1.. Paragraph 14 which provides for a presumption in favour of sustainable development which should be seen as a golden thread running through both plan making and development. It also provides that where policies are "out of date" planning permission should be granted unless:
… any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole.
In the very recent decision of Colman v SSCLG  EWHC 1138 (Admin) Kenneth Parker J held that any inconsistency between the policies relevant to the determination of the appeal and the NPPF would render them "out of date" and cause the approach in paragraph 14 of the NPPF to be engaged.
2.. Paragraph 115 which provides:
Great weight should be given to conserving landscape and scenic beauty in National Parks, the Broads and Areas of Outstanding Natural Beauty, which have the highest status of protection in relation to landscape and scenic beauty. The conservation of wildlife and cultural heritage are important considerations in all these areas…
3.. Paragraphs 142 and 144 which deal with the extraction of minerals including the instruction to local authorities to give great weigh to the benefits of mineral extraction including to the economy
4.. Paragraph 149 which provides:
Permission should not be given for the extraction of coal unless the proposal is environmentally acceptable, or can be made so by planning conditions or obligations; or if not, it provides national, local or community benefits which clearly outweigh the likely impacts to justify the grant of planning permission.
7 Ground 1 - Policy NE 15
1. The expressions used in the authorities that the decision maker has failed to take into account a matter which is relevant, which is the formulation for instance in Forbes J.'s judgment in Seddon Properties , or that he has failed to take into consideration matters which he ought to take into account, which was the way that Lord Greene put it in Wednesbury and Lord Denning in Ashbridge Investments , have the same meaning.
2. 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. Such a matter is relevant to his decision making process. By the verb "might," I mean where there is a real possibility that he would reach a different conclusion if he did take that consideration into account.
3. If a matter is trivial or of small importance in relation to the particular decision, then it follows that if it were taken into account there would be a real possibility that it would make no difference to the decision and thus it is not a matter which the decision maker ought to take into account.
4. As Hodgson J. said, there is clearly a distinction between matters which a decision maker is obliged by statute to take into account and those where the obligation to take into account is to be implied from the nature of the decision and of the matter in question. I refer back to the Creed N.Z. case.
5. If the validity of the decision is challenged on the ground that the decision maker failed to take into account a matter in the second category, it is for the judge to decide whether it was a matter which the decision maker should have taken into account.
6. If the judge concludes that the matter was "fundamental to the decision," or that it is clear that there is a real possibility that the consideration of the matter would have made a difference to the decision, he is thus enabled to hold that the decision was not validly made. But if the judge is uncertain whether the matter would have had this effect or was of such importance in the decision-making process, then he does not have before him the material necessary for him to conclude that the decision was invalid.
"the Appellant has not addressed 'alternative sites in less sensitive areas'. One cannot avoid that requirement by arguing that this coal arises on this site alone, because coal also arises elsewhere and this policy requires the merits of this location relative to others where this occurs to be considered. The discussion of alternatives in the ES concerned alternative approaches to the use or development of the site and was apt to address Policy NE15"
8 Ground 2 – paragraph 149 of the NPPF
37.. It was solely on the basis of these generic statements that the Inspector granted planning permission in spite of the environmental unacceptability of the development. No balancing exercise, or no meaningful balancing exercise, was carried out to justify why the 'national benefit' purportedly provided by this development 'clearly outweighed' the environmental unacceptability for the purposes of paragraph 149 of the NPPF. Rather, the Inspector appears to have adopted the view that all coal extraction developments must be approved, simply on account of their contribution to the national need, however insignificant.
38.. That is an error of law and policy interpretation and application. It is not simply a question of weight, as is argued by D3 (Summary Judgment application at ), since no proper consideration was given to the balancing exercise at all.
9 Ground 3 – lapwings
1) There would be a moderate adverse impact on breeding lapwings as a result of displacement from the site .
2) After mitigation, residual impacts are still predicted in the ES to be negative, but of minor to neutral significance depending on the rate of soil macrofauna re-colonisation and habitat restoration . Doubts remain as to whether the desired territory sizes can be achieved .
3) Whether the displaced birds would breed elsewhere is not known .
4) The Inspector does not appear to dispute NCC's view that it will not be possible to realise no net loss of breeding lapwings.