QUEEN'S BENCH DIVISION
2 Redcliff Street, Bristol, BS1 6GR
B e f o r e :
| THE QUEEN ON THE APPLICATION OF PROTECTBATH.ORG AND VICTIMS OF FULLERS EARTH LIMITED
|- and -
|BATH AND NORTH EAST SOMERSET COUNCIL
|GAZELLE PROPERTIES LIMITED
Richard Humphreys QC and Thea Osmund-Smith (instructed by the Principal Solicitor, Bath and North East Somerset Council) for the Defendant
The Interested Party was not represented and did not appear
Hearing dates: 3 March 2015
Crown Copyright ©
Mr Justice Hickinbottom :
i) In the absence of contrary evidence, it is a reasonable inference that members of the planning committee follow the reasoning of the Officer's Report, particularly where a recommendation is adopted, as it was in this case.
ii) A report has to be sufficiently clear and full to enable councillors to understand the important issues and the material considerations that bear upon them; and decide those issues within the limits of planning judgment that the law allows them. Whilst the report must be sufficient for those purposes, the courts have stressed the need for reports to be concise and focused, and the dangers of reports being too long, elaborate or defensive (see, e.g., R (Morge) v Hampshire County Council  UKSC 2 at , per Baroness Hale; and R (Maxwell) v Wiltshire Council  EWHC 1840 (Admin) at , per Sales J as he then was).
iii) If the material included is insufficient to enable the planning committee to perform its function, or if it is misleading, the decision taken by the committee on the basis of a report may be challengeable. However:
"[A]n application for judicial review based on criticisms of the planning officers' report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken" (Oxton Farms, Samuel Smiths Old Brewery (Tadcaster) v Selby District Council (18 April 1997) 1997 WL 1106106, per Judge LJ).
iv) Furthermore, when challenged, officers' reports are not to be subjected to the same exegesis that might be appropriate for the interpretation of a statute: what is required is a fair reading of the report as a whole (R (Zurich Assurance Limited trading as Threadneedle Property Investments) v North Lincolnshire Council  EWHC 3708 (Admin) at ).
v) In construing reports, it has to be borne in mind that they are addressed to a "knowledgeable readership", including council members "who, by virtue of that membership, may be expected to have a substantial local and background knowledge" (R v Mendip District Council ex parte Fabre (2000) 80 P & CR 500, per Sullivan J as he then was). That background knowledge includes "a working knowledge of the statutory test" for determination of a planning application (Oxton Farms, per Pill LJ) and also relevant development plan policies.
i) The interpretation of policy is a matter of law, not of planning judgment (Tesco Stores Ltd v Dundee City Council  UKSC 13).
ii) National planning policy, and any relevant local plan or strategy, are material considerations; but local authorities need not follow such guidance or plan, if other material considerations outweigh them.
iii) Whereas what amounts to a material consideration is a matter of law, the weight to be given to such considerations is a question of planning judgment: the part any particular material consideration should play in the decision-making process, if any, is a matter entirely for the Council (Tesco Stores Ltd v Secretary of State for the Environment  1 WLR 759 at page 780 per Lord Hoffman).
"87. … [I]nappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.
88. When considering any planning application, local planning authorities should ensure that substantial weight is given to harm to the Green Belt. 'Very special circumstances' will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations."
Policy CP8 in the Core Strategy for Bath and North East Somerset, which forms part of the statutory development plan, substantially replicates this national policy.
"Planning permissions for development will be granted for development involving the treatment of residual wastes where it supports the delivery of the Spatial Strategy…".
"Site Design: A high standard of design is expected for both built development and site layout, including landscaping, the relationship with nature conservation and geological interest on site."
"Green Belt: Any development should be designed to minimise any impact on the openness of the Green Belt."
"Sites identified within Policy 5 may also be appropriate for non-residual waste related facilities, but not at the expense of delivering residual waste treatment capacity, and provided the development meets the identified Key Development Criteria…".
This, Mr Humphreys submitted with some force, is consistent with the sub-regional need for both RWF and NRWF; and implicitly recognises the obvious advantages of co-location subject to ensuring that the RWF capacity requirement is satisfied.
"Operational and allocated waste sites are safeguarded by Policy 13."
Under the heading "Safeguarding Operational and Allocated Sites for Waste Management Facilities", Policy 13 provides:
"Operational waste sites are safeguarded, except where alternative suitable facilities are to be provided as part of an authority approved strategy.
The specific sites listed in Policy 5 are safeguarded to deliver the Spatial Strategy. Where proposals would prejudice the implementation of the JWCS, consideration will be given as to how they could be amended to make them acceptable, or, where this is not practicable, to refusing planning permission."
I shall refer to the safeguarding provision in the first paragraph as "the first limb", and that in the second paragraph as "the second limb", of Policy 13.
"… The purpose of safeguarding sites in existing waste use or allocated for waste treatment facilities is to ensure that these locations are not lost to non-waste development."
Ground 4: The Report and thus the Planning Committee failed to grapple with the harm to the Green Belt caused by the proposed development, regarding the acceptability of the development to have been effectively settled by the allocation in the JWCS.
Ground 5: The Report and thus the Committee proceeded on the basis of a conclusion or assumption that the proposed development caused no detrimental impact. In doing so, they erred in law because (i) there was patently detriment, notably in respect of openness, and/or (ii) they gave no reasons for concluding or assuming there was not.
Grounds 1, 2 and 3
i) It is noteworthy that a site allocated under Policy 5 of the JWCS is allocated for "development involving [not restricted to] the treatment of residual waste…"; and it is clear from that, and paragraph 6.5.6, that one site may be developed for both RWF and NRWF purposes, subject of course to the restrictions on such development imposed by Policy 13 and paragraph 6.5.6. As Mr Humphreys submitted, there are obvious advantages in co-locating the two.
ii) The JWCS allocated the whole site (including the Open Land) for that use, in the Green Belt, after detailed consideration, had determined that there was a need for such facilities and a lack of alternative sites. That consideration included an inspector's examination, in which all, including the Claimants, had an opportunity to contribute.
iii) The allocation in the JWCS could have restricted the allocation to the EDL, or, through the Key Development Criteria, could have required any proposed development to use the EDL in preference to the Open Land and/or required that, in any development of the site for waste management purposes, the existing buildings be removed. It singularly did not do so.
iv) The Officer's Report considered that the RWF proposed largely on the Open Land would fulfil immediate and medium term requirements for such facilities; and that no alternative NRWF were available. The report indicated that, of an indicative capacity of 150,000 tpa identified in the JWCS, the proposed facility would deliver 100,000 tpa; and the remainder of this allocated site (or another site at Broadmead Lane) were available if further capacity were needed before the end of the plan period (i.e. before 2026). Further, the report concluded that the proposed development would not prejudice an extension on the same to accommodate more capacity, nor prejudice such further development being of high standard in respect of site design. Those judgments are not challenged, and are unchallengeable.
v) As Mr Humphreys emphasised, it is surprising that there is no reference at all to Policy 13 in the Claimant's Particulars of Claim. The relevance and importance of that policy was raised in paragraph 6 of the Council's Summary Grounds of Resistance. In fact, Policy 13 is key to this claim.
vi) Mr Drabble submitted that a particular site could not be safeguarded under both limbs of Policy 13 – indeed, that was the premise upon which his submission was founded – but I do not agree. Safeguarding provisions such as these, as a matter of policy, merely prohibit development of a particular kind. The first limb of Policy 13 safeguards existing operational sites, whether RWF or NRWF, against any development without a suitable alternative being provided for the facilities that will be lost. The second limb safeguards specific allocated sites against development that does not involve RWF. Where a site, such as this, is both an operational NRWF site, but is also a site allocated for RWF development, there is no conceptual or practical discordance in it being safeguarded for both purposes. For the Site, Policy 13 had the effect of safeguarding the existing operational waste facility site unless it was required for RWF and alternative NRWF facilities were available.
vii) The JWCS must be looked at as a whole. Given that the use of the EDL for NRWF was safeguarded (so that it could not be removed unless a suitable alternative was provided), the document read as a whole clearly contemplated, not that RWF development on the site should use the EDL in preference to the Open Land or should require the existing building be removed, but rather that it might be co-located on the site with the existing NRWF.
viii) Langley Park, relied upon with some weight in the skeleton argument but not pressed upon me by Mr Drabble today, is readily distinguishable, primarily (although not exclusively) on the ground that, in that case, the existing use was not safeguarded as the use of the EDL is here. In that case, an application was made for planning permission for the demolition of most of a boys' school, and the construction of a new school on the same site but largely on what were the playing fields. The site was in the Metropolitan Open Land ("the MOL"), i.e. effectively Green Belt land. An objection was received (from the adjacent girls' school) that, by placing the new buildings where proposed as opposed to wholly or largely on the site of the buildings to be demolished, the proposed development would severely reduce openness and visual amenity. It was held that the planning authority had failed to take into account that the proposed development would severely injure the openness and visual amenity of the MOL, and that that injury would be greatly reduced if the layout was revised so that the new buildings were sited largely on the built up land as opposed to the open land. They had given no effective consideration to alternative development sitings within the site. However, here (i) unlike the Langley Park case, Policy 13 of the JWCS safeguards, not just the allocation, but the existing operational facilities on the EDL, which cannot simply be removed; (ii) unlike the Langley Park case, the whole site has been allocated to be built upon, and (iii) unlike the Langley Park case, consideration was given to alternative layout/setting but, given that the EDL was safeguarded and the future redevelopment of that land to a high standard was not precluded or prejudiced, it was not considered to be appropriate (see below). Langley Park had none of these highly material features, but notably the use of the site for the old school was not safeguarded as the use of the EDL for NRWF is here. Indeed, given the safeguarding of the existing use of the EDL, unless the need for RWF demanded the development of the whole site and there was a suitable alternative location for the existing NRWF operation, it would have been contrary to policy to have required the redevelopment of the EDL.
"The assessments undertaken indicate that there would be no significant effects on… the Green Belt...".
In the grounds and skeleton argument, Mr Forsdick submitted that this conclusion is unreasoned; and, particularly in respect of openness, is inexplicable and patently wrong.