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England and Wales High Court (Administrative Court) Decisions
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Hilltop Experiences Ltd, R (On the Application Of) v Norfolk County Council [2025] EWHC 1447 (Admin) (12 June 2025)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2025/1447.html
Cite as:
[2025] EWHC 1447 (Admin)
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Neutral Citation Number: [2025] EWHC 1447 (Admin) |
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Case No: AC-2024-LON-002502 |
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
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Royal Courts of Justice Strand, London, WC2A 2LL |
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12/06/2025 |
B e f o r e :
MRS JUSTICE LIEVEN
____________________
Between:
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THE KING (on the application of) HILLTOP EXPERIENCES LIMITED
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Claimant
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- and -
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NORFOLK COUNTY COUNCIL
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Defendant
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- and -
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NORFOLK COUNTY COUNCIL (DIRECTOR OF HIGHWAYS, TRANSPORT AND WASTE)
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Interested Party
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Ms Stephanie David (instructed by Irwin Mitchell LLP) for the Claimant
Ms Harriet Townsend KC (instructed by Norfolk County Council Legal Services) for the Defendant
The Interested Party did not attend and was not represented
Hearing dates: 12 & 13 February 2025
____________________
HTML VERSION OF APPROVED JUDGMENT
____________________
Crown Copyright ©
This judgment was handed down remotely at 10.30am on 12 June 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
.............................
MRS JUSTICE LIEVEN
Mrs Justice Lieven DBE :
- This is an application for judicial review of the decision of Norfolk County Council (the Local Planning Authority) ("LPA") dated 5 June 2024, to grant planning permission for a new household waste recycling centre ("HWRC") at land off the A148 Holt Road, Cromer ("the Site"). The Claimant runs an outdoor education facility, "Hilltop", approximately 30m from the Site. The Defendant is Norfolk County Council ("NCC") and the Interested Party is Norfolk County Council's Director of Highways, Transport and Waste who was the Applicant for planning permission for the Site.
- The Claimant was represented by Stephanie David and NCC was represented by Harriet Townsend. The Interested Party did not appear. Ms Townsend made clear that she was not instructed on behalf of the Interested Party.
- Hilltop is a residential outdoor education facility for children aged 4 to 12 years old. Children come to the facility from a wide area and a proportion of the children have special educational needs and other vulnerabilities.
- There are now five Grounds of challenge (Ground 4 having been withdrawn):
a) (Ground One) NCC unlawfully failed to consider alternatives to the Site, including a site known as "the Stonehill Way Site".
b) (Ground Two)
i) NCC took into account irrelevant considerations in exercising its planning judgement in respect of whether the Site constituted "major development" within the meaning of national policy on Areas of Outstanding Natural Beauty ("AONB"), now the Norfolk Coast National Landscape ("NCNL").
ii) NCC irrationally decided that the Site was not "major development" within the meaning of para 183 of the National Planning Policy Framework ("NPPF").
c) (Ground Three) NCC failed to interpret and lawfully apply paras 182-183 of the NPPF in relation to development in the AONB.
d) Ground Four has been withdrawn.
e) (Ground Five) NCC failed to discharge its obligation pursuant to s.149 of the Equality Act 2010 in granting permission.
f) (Ground Six) The LPA screening opinion undertaken pursuant to regulation 6 of the Environmental Impact Assessment Regulations 2017 ("EIA Regulations") was unlawful because (i) it failed to consider the effects of certain types of waste at the Site and (ii) it failed to consider the risks to human health of the development, particularly bearing in mind the proximity to the Hilltop Site.
- As is set out below, an application to amend the Claim to add an additional Ground was made after the end of the case but before the handing down of judgment. I deal with that application [at 69 and surrounding paragraphs] below.
Background
- The proposed HWRC is a replacement for an existing facility which is located almost adjacent to it. Both sites fall within the NCNL, a landscape designation with the status of an AONB. The precise location and operation of the existing and proposed HWRC is important to both the Claimant's original objection and a number of the Grounds of challenge. I will describe the key parameters below, but in order to properly understand the relationship between the two sites and the Hilltop operation it is necessary to refer to plans.
- The existing HWRC is located on the south side of a layby off Holt Road (A148). It lies between the layby and the road. The new HWRC is on the north side of the layby and there is an open field between it and the Hilltop site, which lies to the west. The part of Hilltop which is closest to both the existing and new HWRC is a playing field. The Claimant says that it has given up use of the southern end of the playing field because of the impact of the existing site. The closest part of the existing site to the playing field is 12m but to the part which is used is 35m. The closest part of the new Site is 35m. it is important to note therefore that the new facility comes no closer to the Hilltop site than the existing facility to the used part of the site.
- The size of the existing HWRC is 0.1ha, and the size of the proposed site is 0.45ha. However, the service area of the proposed site, i.e. the area where the operations primarily take place, remains at approximately 0.1ha. The larger site allows easier vehicular access, movement and parking. The throughput allowed by the environmental permit on the existing site is 5,000 tpa. Condition 5 of the planning permission under challenge restricts the throughput of the proposed site to 6000 tpa. NCC submits that there is no reason to believe that the throughput will be any higher in the proposed site than the existing site, given that the catchment remains the same. Therefore, although the proposed Site is significantly larger, in operational terms it is meeting the same needs and the impacts are predicted to remain broadly the same.
- The existing site allows municipal, construction, demolition and excavation, commercial and industrial, hazardous (in limited terms) and DIY waste. The permitted Site will allow the same mix of waste save for the addition of "trade waste". The Officer's Report ("OR") states that there would be 36 tonnes of commercial and industrial waste and 30 tonnes of hazardous waste. The permission for hazardous waste is new but Mr Zieja (the Council's witness and the senior Planning Officer) explains that the same material could currently be deposited under the terms of the environmental permit, there being no restrictions on the existing planning permission in this regard. In respect of the trade waste NCC's position is that this will be waste that is currently being deposited by individuals in any event, so again there is unlikely to be any increase in throughput.
- The proposed Site includes a re-use shop, allowing people to pick up otherwise discarded items. The container schedule for the existing and permitted sites are slightly different, with the proposed Site including compression rollers. I will return to these issues when I deal with noise impacts.
- The existing site has no acoustic fence, but the Claimant has constructed some form of bund around the southern end of its site. The proposed Site has a 2.5m acoustic fence to the north and the west, i.e. the sides facing towards the Hilltop site.
- The Claimant's entire site is 33 acres. There is an outdoor centre building, which is the centre of the Hilltop operation, but that is some 350m from the proposed Site and it is not suggested that the activities immediately around the building will be materially impacted upon by the development.
- NCC had been exploring extending or replacing the existing facility for many years. Mr Zieja sets out in his witness statement the operational difficulties with the existing site, and in particular the problems of traffic backing up from the layby onto the A148, because only 8 cars can be on the site at any one time. In 2017 there was a search for sites, which was updated in 2019.
- In March 2022 NCC requested a screening opinion for a proposed 'installation for the disposal of waste', within para 11(b) of Schedule 2 to the EIA Regulations 2017. The LPA's screening opinion is dated 24 March 2022 and concludes that, although within a sensitive area, the development is not EIA development. No criticism was made of the screening opinion's assessment at the time, nor within the responses to consultation on the subsequent application for planning permission.
- NCC's application for planning permission for the proposed HWRC was made in February 2023 and given reference FUL/2023/0005.
- The main planning constraint on the Site's development is its location within the NCNL, formerly AONB. This designation also applies to the existing facility and covers a large area within North Norfolk. National policy in para 182 and para 183 of the NPPF applies to development in the NCNL.
- The application was accompanied by a Planning Statement. That included a landscaping scheme, which is now required to be complied with under the conditions of the planning permission. A Noise Report was submitted with the application.
- The Planning Statement was replaced by an Updated Planning Statement in January 2024, to which an Addendum was added on 5 April 2024. At para 6.26 the Updated Planning Statement says:
"[O]perational noise from associated off-site traffic was shown to have a negligible impact and operational noise from on-site activity was assessed to have a low impact. Mitigation has been included in the form of a living acoustic fence along the northern border. Overall the noise assessment concludes that the proposed development would comply with the requirements of policy CS14 and DM12 of the CSDPD
. Additional living acoustic fencing has been added along the western boundary as a courtesy to concerns raised by Hilltops Activity Centre".
- At para 7.37 of the Updated Planning Statement it is recorded that the construction hours have been reduced because of impact on Hilltop to the west. Para 7.40-7.41 states:
"7.40. The Hilltop Activity Centre archery games and caving areas to the west are not considered to be as sensitive as the woodland school area to the north of the site and due to proximity to the main road and the existing recycling centre was not included within the assessment. Additional acoustic fencing has been added to the western boundary in addition to the assessment requirements as a courtesy measure in recognitions of the concerns see point 3 below.
3. Suggest inclusion of a 2.5 metre noise barrier to the west boundary.
7.41. The noise assessment concludes that an acoustic barrier should be provided only as mitigation on the northern boundary of the site. However, and whilst it is not considered a requirement, the applicant will extend the living acoustic fence along the western boundary to provide additional noise attenuation above that which is considered necessary. Although any noise created on the recycling centre will be minimal, living acoustic fencing will be installed along the northern and western boundaries in additional consideration of the neighbouring activity centre. As this living fence grows it will completely cover the security fencing in those elevations as shown in the attached example."
- The Addendum Planning Statement includes a section on alternative sites. There was one alternative site, Stonehill Way, on the edge of Cromer, which had emerged during the planning process. The Addendum Statement states:
"Notwithstanding this and accepting the Stonehill Way site, on the edge of the AONB is larger than required, the site overlooks the retail estate and residential properties and onto Cromer town centre itself. The site can be seen for a considerable distance. It would bring traffic from a more rural location recycling centre into the centre of Cromer, which especially in peak summer months would be extremely undesirable. It is also understood considerable targeted site investigation works would be required before development as there is visible subsidence across the site, especially to the right-hand side of the entrance gate. It is in a highly exposed location on the hilltop overlooking Cromer town centre. The site will be susceptible to considerable exposure to winter winds from the North, Northeast, East and Northwest, making for a potentially unpleasant location for site users and staff during the winter, in periods of poor weather."
- There was consultation on the proposal. The Claimant provided responses on 2 March 2023, 21 February 2024, and 22 May 2024. There were a number of other objections, including (i) North Norfolk District Council (16 March 2023 and 28 February 2024), (ii) Norfolk Coast Partnership (15 March 2023 and 25 April 2024), (iii) CPRE (21 March 2023), and (iv) a number of schools whose pupils attend the Hilltop Centre.
- The detail of what was said in the consultation responses is important to Ground Five (Public Sector Equality Duty) ("PSED") and I will set out some of that detail below. But the overall thrust of the Claimant's objections was the impact of the proposed development on its activities with children on its site, by reason of in particular noise, but also dust and other impacts on amenity.
- The OR was produced on 16 May 2024, with an update for the Committee on 23 May 2024. The OR recommended the grant of planning permission.
- The Planning Committee took place on 24 May 2024. The Claimant was represented at the meeting by Mr Turner. The Officers made a presentation, there were oral representations from the Applicant, and objectors and questions from members. The Committee resolved, by a majority, to grant planning permission.
- Permission was granted on 5 June 2024, subject to conditions. The Claimant brought judicial review proceedings. Lang J granted permission for judicial review and I heard the case over 12-13 February 2025.
- However, before I delivered judgment the Claimant made an application on 14 March 2025 to adduce further evidence relating to a further "alternative site", which the Claimant argued that NCC had failed to disclose to the Court, in breach of its duty of candour. I listed consideration of that application on 31 March 2025 at which I received written and oral submissions. I reserved judgment on that issue as it is closely bound up in the issues under Ground One. I deal with this issue below at [42-52].
The Officers' Report
- Before the Planning Committee there was a detailed OR; an Addendum Report and the slides that were shown to members with the presentation. I have also been given a transcript of the discussion in the committee.
- The OR set out at the start in the Executive Summary that one of the key issues was "Whether suitable sites are available outside of the National Landscape".
- At OR3.11 under "Consultations" it states that North Norfolk District Council had objected and had said that it needs to be demonstrated that the development cannot be located on alternative sites that would cause less harm. The Environmental Health Officer did not object and referred to the noise assessment.
- At OR3.12 under "Representations", reference is made inter alia to "Child protection concerns in relation to adjacent business" and "Alternative site available in Cromer on land that meets policy".
- The OR then has a section on the principle of development. At OR3.19 reference is made to the emerging policies in the Norfolk Minerals and Waste Local Plan ("NMWLP"), and it is stated that "Although it is highlighted that sufficient information should be submitted to demonstrate that no suitable sites are available and development in the National Landscape should be avoided".
- The relevance of the NCNL and the policy need to consider alternatives is dealt with at OR3.21-3.26:
"3.21 Considering the policies set out above it is considered on balance that the principle of locating the proposed HWRC in the Norfolk Coast National Landscape is a departure from the development plan given that adverse effects will be felt on the National Landscape and the overarching ambition of the plans is to protect and enhance these areas. The assessment of the impact on the Norfolk Coast National Landscape is dealt with in detail at Section B: Landscape & Visual Impact in this report. The applicant carried out an initial Site Selection Assessment based on a defined search criteria set out in the Planning Statement back in June 2017, which was provided as part of the application and looked at two available sites (Land at Cromer Road, East Runton and Land at Northrepps, Cromer) after EDT Committee sought further work on a replacement for the current HWRC. However, the two sites identified were discounted. The applicant has also alluded to a further Site Selection Assessment being carried out in 2019 with 15 land agents that brought forward three potential options (all seemingly in the National Landscape), but the CPA have not been provided with a copy of this assessment to fully assess.
3.22 The CPA, on balance, cannot categorically say that no land was available outside of the National Landscape and on land that would meet NMWLDF (2011) Policy CS6 at the time of the assessments that would cause less harm than the site considered under this application to meet the requirements of NMWLDF (2011) Policy DM6 and NNLDFCS (2008) EN1. Whilst the applicant has set out the timeline of the development of the proposal, the CPA would have expected a more recent site selection exercise to have been carried out and submitted given the one submitted was 6 years prior to the application being lodged in order to fully comply with policy.
3.23 The NPPF (2023) which is a material consideration when determining a planning application stress in paragraph 182 and 183 the great weight that should be given to conserving and enhancing landscape and scenic beauty of National Landscapes as these have the highest status of protection. It states permission should be refused for 'major development' other than in exceptional circumstances and where public interest can be demonstrated. Whether something is considered major development, is a matter for the County Planning Authority (CPA) when considering its nature, scale and setting and whether the impacts could be significant on the National Landscapes purpose for designation.
3.24 The definition of 'major development' in this instance differs from that found in The Town and Country Planning (Development Management Procedure) (England) Order 2015 as amended, where waste development as a whole is considered to constitute major development. In this instance given that the site is essential infrastructure for the use of the local community to dispose of waste, only roughly 0.5ha in scale with a relatively low throughput of 6,000tpa, no difference in traffic movements given it is serving the same catchment as the existing facility, is located adjacent to a primary transport route, the A148 and the current operational HWRC facility (which is also located in the National Landscape), the CPA, on balance, do not consider the proposal to be 'major development' when considering paragraph 183 of the NPPF (2023). However, in The Countryside Charity (CPRE) response they have made it clear they consider the proposal to amount 'major development' and do not consider a clear assessment has been made on the exceptional circumstances to site the development in the National Landscape and nor do the site selection criteria give reference to landscape designations.
3.25 In any event, it is considered that the proposal is in the public interest whether it is 'major' development or not and as such meets the NPPF test set out in paragraph 183. This is because it will provide a suitable HWRC facility that is an essential facility for communities to dispose of waste, will deal with the existing operational and congestion issues of the existing site whilst being well related to the A148 by keeping the new site in the same broad location, which is centrally located between the settlements of Holt, Sheringham and Cromer and will help to move waste up the hierarchy in accordance with the NPPW (2014). Whilst also seeking to minimise adverse impacts on the landscape and scenic beauty of the National Landscape through proportionate mitigation to reduce the severity of the impact felt and providing a facility to ensure the future community have sufficient access to a HWRC as required by the Environmental Protection Act 1990.
3.26 The applicant has provided an addendum to the Planning Statement to address paragraph 182 and 183 of the NPPF (2023) where it has been highlighted that the development is required to be located in this location but the applicant has only given limited consideration of sites that have come forward during the determination of the application due to the timings of becoming aware of the other sites. The applicant has provided limited justification as to why the land immediately west of the existing site is inappropriate, along with land that has come forward during the planning process in Stonehill Way, Cromer, but has clearly set out the selection criteria that was used and the cost implication to the public purse if the site chosen to progress with in December 2020 changed during the design process in both consultant fees and land acquisition fees in tackling paragraph 183(b) of the NPPF (2023)."
[emphasis added]
- The OR then considers the landscape and visual impact. At OR3.36 it states:
"3.36 However, it is considered that although the applicant has provided details of a Site Selection Assessment in 2017, the fact the CPA do not hold a copy of the additional 2019 assessment that brought forward 3 additional sites (all within the National Landscape) does not sufficiently demonstrate that the facility cannot be located on an alternative site that would cause less harm. However, limited justification as to the cost impacts of locating the site outside of the National Landscape has been provided in the Planning Statement Addendum and the CPA appreciate that a decision does need to be made on a site to progress the design of the new HWRC at some point and taking this decision in 2020 (sic) is considered proportionate given when the application was lodged. The applicant has also tried to address sites that have come forward during the planning application process, but with limited justification for discounting the sites other than the impact it would have on the work carried out to date."
- At OR3.42 the impact is assessed and it is concluded: "However, the proposal does still have an adverse impact on the landscape and scenic beauty of the National Landscape, albeit minor".
- The OR then considers the impact on amenity, including that of Hilltop at OR 3.45-3.50:
"3.45 The policy that deals with the proposal's impact upon amenity in relation to the NMWLDF (2011) is namely DM12: Amenity. The policy states amenity is a key consideration for waste development and development will only be permitted where it can be demonstrated that the scale, siting and design is appropriate and there will be no unacceptable impact to local amenity. In terms of the NNLDFCS (2008) the policy concerned with amenity is EN4: Design and states proposals should not have a significantly detrimental effect on the residential amenity of nearby occupiers.
3.46 The application site is situated roughly 35m east of the boundary of the Hilltop Outdoor Centre with the sensitive receptors of the accommodation at the facility 250-350m north-west and the nearest residential properties lying 270m-435m to the northeast. The A148 is less than 20m south of the site and there are other sensitive receptors of the site with St Andrews School 700m east and Field Barn 650m south. However, these are considerably further away.
3.47 The proposed development provides a 2.5m high living acoustic fence to the north and west boundaries of the proposed site which is considered to suitably address any noise related amenity concerns on the sensitive noise receptors of Hilltop Outdoor Centre and other properties to the north. The applicant has sought to reduce the impact of the development on the sense of
tranquillity, remoteness and wildness that is considered part of the special qualities of the National Landscape in relation to noise and light pollution by utilising the living acoustic fencing to two principal boundaries and the omission of external lighting from the scheme.
3.48 The District Environmental Health Officer (EHO) originally raised concerns due to a lack of information on lighting and clarifications on noise impacts. However, since the CPA confirming no lighting is proposed with the development and agreement with the applicant and CPA to impose a condition on reduced construction hours and clarification that the proposed development will be controlled by an Environmental Permit, the EHO has removed their objection to the proposal.
3.49 With regards to the actual regulation of an operation such as this, in accordance with paragraph 188 of the NPPF and the National Planning Policy for Waste, the County Planning Authority needs to focus on whether proposed development is an acceptable use of land, rather than the control of processes or emissions, and the CPA needs to be satisfied that the facility can in principle operate without causing an unacceptable impact on amenity by taking advice from the relevant regulation authority (the Environment Agency). However, it is the role of the Environmental Permit (which the facility would also require before it can operate) as issued by the Environment Agency to actually control emissions/pollutants such as noise, odour and dust through conditions, and Planning Authorities should assume this regime will operate effectively.
3.50 Therefore, the proposal is considered compliant with policies DM12 of the NMWLDF (2011), EN4 and EN13 of the NNLDFCS (2008), the objectives of section 8 of the NPPF (2023), and the NPPW (2014)."
- At OR3.96 the response to Hilltop's representation is considered:
"3.96 The issues raised relating to child protection concerns due to the proximity of the Hilltop Outdoor Centre that acts as an activity centre for children to the proposed development have been considered in relation to the Human Rights Act 1998 and the Equalities Act 2010 and it is not considered the siting of an HWRC in this location would have an impact on Child Protection when considering discrimination. The CPA believe that there are suitable mitigation measures in place with the acoustic screening to the north and west of the site to deal with noise concerns and that any dust or odour issues would be suitably controlled by a Waste Permit by the Environment Agency when considering the football pitches at Hilltop Outdoor Centre roughly 35m west of the proposed site. The highways improvements and provision of a new HWRC will also ensure fewer vehicles will be queuing to access the HWRC resulting in improved pedestrian safety. However, it is understood that children would also be dropped of at Hilltop Outdoor Centre within the boundary of the site itself."
- Section 4 of the OR sets out the Conclusions. It is said that the decision is finely balanced given the location of the site in the NCNL. Significant weight is given to the fact that a large portion of the area is in the NCNL and to the fact that site is well located between Cromer, Holt and Sheringham.
- OR4.3 deals with site selection:
"4.3 It is accepted that the design of such projects is a lengthy process. However, the CPA are not satisfied that a robust Site Selection process has taken place to meet NMWLDF (2011) Policy DM6 and NNLDFCS (2008) EN1 to allow development in the National Landscape on land that does not meet NMWLDF (2011) Policy CS6. Whilst the CPA have been provided with an assessment dating back to June 2017, this was carried out some 6 years prior to the application being lodged. The CPA would have expected a more recent assessment to have been submitted in order to fully comply with policy so we can be satisfied no land was available on sites outside of the National Landscape and/or on land meeting policy CS6. However, the CPA do consider there is sufficient public interest in providing the improved facility when considered in relation to the highways improvement works, landscape mitigation and location of the existing HWRC. Particularly given the impact that could be had on the National Landscape if a suitable facility is not provided. The CPA agree the current facility is not fit for purpose and as such a new facility would be in the public interest as if one was not provided the National Landscape could potentially suffer from increased instances of fly tipping due to the lack of an easily accessible and modern HWRC given the queuing issues with the current site and lack of vehicle access. The CPA also see the location of an HWRC as a geographical assessment to meet catchment needs given that it is a public facility and due to the extent of land the AONB covers a suitable site would have a high probability of needing to be located in the sensitive landscape."
[emphasis added]
- OR4.4 states that the decision is finely balanced, states that the landscape and visual impact can be mitigated and refers to the overriding public interest in the facility. The final recommendation was to grant planning permission subject to conditions.
The law on Officer's Reports
- Each of the Claimant's Grounds to some degree turns on the content of the Officer's Report. The approach of the Court in a judicial review of an LPA decision was authoritatively set out by the Court of Appeal in Mansell v Tonbridge DC [2019] PTSR 1166. At [42] Lindblom LJ said:
"42. The principles on which the court will act when criticism is made of a planning officer's report to committee are well settled. To summarize the law as it stands:
(1) The essential principles are as stated by the Court of Appeal in R. v Selby District Council, ex parte Oxton Farms [1997] EGCS 60 (see, in particular, the judgment of Judge L.J., as he then was). They have since been confirmed several times by this court, notably by Sullivan L.J. in R. (on the application of Siraj) v Kirklees Metropolitan Borough Council [2010] EWCA Civ 1286 , at paragraph 19, and applied in many cases at first instance (see, for example, the judgment of Hickinbottom J., as he then was, in R. (on the application of Zurich Assurance Ltd., t/a Threadneedle Property Investments) v North Lincolnshire Council [2012] EWHC 3708 (Admin) , at paragraph 15).
(2) The principles are not complicated. Planning officers' reports to committee are not to be read with undue rigour, but with reasonable benevolence, and bearing in mind that they are written for councillors with local knowledge (see the judgment of Baroness Hale of Richmond in R. (on the application of Morge) v Hampshire County Council [2011] UKSC 2 , at paragraph 36, and the judgment of Sullivan J., as he then was, in R. v Mendip District Council, ex parte Fabre (2000) 80 P. & C.R. 500 , at p.509). Unless there is evidence to suggest otherwise, it may reasonably be assumed that, if the members followed the officer's recommendation, they did so on the basis of the advice that he or she gave (see the judgment of Lewison L.J. in Palmer v Herefordshire Council [2016] EWCA Civ 1061 , at paragraph 7). The question for the court will always be whether, on a fair reading of the report as a whole, the officer has materially misled the members on a matter bearing upon their decision, and the error has gone uncorrected before the decision was made. Minor or inconsequential errors may be excused. It is only if the advice in the officer's report is such as to misdirect the members in a material way so that, but for the flawed advice it was given, the committee's decision would or might have been different that the court will be able to conclude that the decision itself was rendered unlawful by that advice.
(3) Where the line is drawn between an officer's advice that is significantly or seriously misleading misleading in a material way and advice that is misleading but not significantly so will always depend on the context and circumstances in which the advice was given, and on the possible consequences of it. There will be cases in which a planning officer has inadvertently led a committee astray by making some significant error of fact (see, for example R. (on the application of Loader) v Rother District Council [2016] EWCA Civ 795 ), or has plainly misdirected the members as to the meaning of a relevant policy (see, for example, Watermead Parish Council v Aylesbury Vale District Council [2017] EWCA Civ 152 ). There will be others where the officer has simply failed to deal with a matter on which the committee ought to receive explicit advice if the local planning authority is to be seen to have performed its decision-making duties in accordance with the law (see, for example, R. (on the application of Williams) v Powys County Council [2017] EWCA Civ 427 ). But unless there is some distinct and material defect in the officer's advice, the court will not interfere."
- The tests therefore are that the officers have "materially misled the members", and that the advice was "significantly or seriously misleading in a material way
". This will depend on the context and circumstances.
The application to adduce further evidence
- On 14 March 2025 the Claimant applied to adduce evidence relating to another potentially available site at East Beckham Quarry ("EBQ") which is some 600m south-west of the Site. Mr Read (the owner and operator of Hilltop) submitted a witness statement stating that he had only become aware of the EBQ site when the owner, Mr Robert Batt, phoned Hilltop on 11 February 2025 having seen an article about the judicial review in the local press. He spoke to Mr Read's son and had a brief conversation with Mr Read. However, Mr Read only met Mr Batt on 21 February 2025, after the substantive hearing.
- Mr Batt told Mr Read that he had tried to engage with the Interested Party, through NPS Property Consultants, in July-October 2019 and emailed Nicola Young of the Interested Party in 2021 but received no response. There is a chain of emails between Mr Batt and the Consultants in 2019, which includes the following:
"I received the attached response on the quarry site at East Beckham while I was away last week. I will give Robert Batt a ring shortly to follow this up. I believe the indicated target date for this HWRC relocation was for October, but I wondered how much flexibility there may be on the timescale as this seems a reasonably positive response, particularly given the existing highways access serving the quarry."
- EBQ is referred to in the Interested Party's Planning Statement dated January 2024. That states that the owner of EBQ did not engage.
- Ms David submits that this is material new evidence which was not available to the Claimant before the substantive hearing. She said that the evidence is material because the incorrect factual information was put before the Committee because they were not told EBQ was a potentially available, suitable alternative site outside the NCNL, which had not been properly considered by the Interested Party.
- She also submits that the Interested Party has failed in its duty of candour because it failed to inform the Court about the EBQ site and the fact that the Interested Party had failed to pursue that site.
- The OR at OR3.21 and 3.36 referred to all three potential alternative sites being in the NCNL. However Mr Zieja, the Planning Officer, in his witness statement in response to the application to adduce further evidence, explains that he thought the reference in the Planning Statement was to Beeston Regis Quarry, which is 300m east of the Site, and he had no knowledge of EBQ. He did not consider the site referred to in the Planning Statement as being relevant because it was stated that the owner had not responded in 2021. Mr Zieja explains that he sent 10 emails to the Interested Party between 18 May 2023 and 25 January 2024 asking for an up to date site assessment, but no further information was forthcoming. In his view he fully and accurately explained this situation in the OR, as set out above.
- Ms David submits that the duty of candour applies to all the parties, including both NCC and the Interested Party (Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment [2004] UKPC 6; R (Qualter) v Preston Crown Court [2019] EWHC 906 (Admin)). That duty, as the court is well aware, is to ensure that the parties provide the court with full and accurate explanations of matters relevant to the issues in the claim (R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2018] EWHC 1508 (Admin); R (Citizens UK) v Secretary of State for the Home Department [2018] EWCA Civ 1812). Even where a public authority does not engage in proceedings due to financial reasons, it still remains under the duty of candour (R (Midcounties Cooperative Ltd) v Forest of Dean District Council [2015] EWHC 1251 (Admin)).
- Ms Townsend resists the admission of the new evidence on grounds both of delay and substance. On delay she submits that Mr Read had been told on 11 February 2025 that EBQ had allegedly been/was available and this should have been raised by Hilltop's legal team immediately. It was not reasonable to wait until after the hearing was completed before further investigating the matter and then making the application almost a month after the end of the hearing.
- She says that NCC complied with its duty of candour. It had no knowledge of the EBQ site, but further the OR made entirely clear that it was possible that there were suitable sites outside the NCNL. There was no duty upon NCC to do any more than that.
- So far as the Interested Party were concerned, they had chosen not to participate in the proceedings. Ms Townsend was not instructed to represent them, and where the same Local Authority was also the applicant for planning permission and the development planning authority, it was extremely important to maintain the clear legal boundary between them.
- I do not accept Ms Townsend's submission that the new evidence should not be admitted by reason of delay. Mr Read only received the information about the EBQ site very shortly before the hearing, and I accept he acted reasonably in not at that stage bringing it to the lawyers' attention. However, for the reasons I explain below under Ground One, I do not consider this new evidence is material to the decision under Ground One because the members were expressly advised that there might be other sites, within or without the NCNL, and chose to still grant permission. The issue for the Court is whether the OR materially misled the members, and for the reasons submitted by Ms Townsend under Ground One, it did not do so.
- On 29 April 2025 the Claimant applied to amend the Statement of Facts and Grounds to add an additional Ground that the Defendant made a material error of fact by stating in the OR that the alternative sites identified were within the NCNL, when in fact the EBQ site was outside the NCNL. For the reasons set out in Ground One below I do not consider that the error, to the degree that there was one, was material and I therefore do not permit the amendment. The reality of the situation here is that members were aware that there could be other sites, whether within or outside the NCNL. They took that possibility into account and therefore, to the degree that Mr Zieja was confused between the two quarry sites, it was not a material error of fact that had any realistic prospect of leading to a different outcome.
Ground One
- The Claimant submits that NCC failed to consider alternatives to the site, or to the degree it did consider alternatives, it failed to do so adequately. Ms David submits that the duty to consider alternatives arose in two different ways. Firstly, and this is agreed, that there was an obligation to consider alternatives by reason of Development Plan (NMWLDF 2011) policies CS6 and DM6. Secondly, Ms David submitted that there was a "common law" duty to consider alternatives on the facts of this particular case. She puts it in these two ways, because Ms Townsend submits that the OR makes clear that the Interested Party's consideration of alternatives did not meet the terms of the policies, and that is why the application was considered a departure from the Development Plan. There was no duty to consider alternatives any further than that on the facts of the case.
- Ms David's case is the duty arises under s.70 Town and Country Planning Act 1990 ("TCPA") because she submits that, on the facts of this case, alternatives were a mandatory material consideration according to the principles set out in cases such as Trusthouse Forte v Secretary of State for the Environment [1986] 53 P&CR 293 and Derbyshire Dales DC v SSCLG [2010] 1 P&CR 19. As I understand the submission, it is that unlike the duty to consider alternatives under the Development Plan, the s.70 duty could not be set aside. Therefore planning permission could not lawfully be granted unless a full consideration of alternatives was undertaken.
- In Trusthouse Forte Simon Brown LJ posited the duty to consider alternatives arising in the following way:
"22.
(2) Where, however, there are clear planning objections to development upon a particular site then it may well be relevant and indeed necessary to consider whether there is a more appropriate alternative site elsewhere. This is particularly so when the development is bound to have significant adverse effects and where the major argument advanced in support of the application is that the need for the development outweighs the planning disadvantages inherent in it.
"
- Most of the caselaw on the consideration of alternative sites focuses on whether a duty to consider alternatives arose at all, rather than the degree to which they needed to be considered. In the present case there is no dispute that alternatives were considered, but Ms David says that the LPA was under a duty to investigate the matter further. In Derbyshire Dales Carnwath LJ considered the nature of the duty to consider alternatives in circumstances where the Inspector did not consider it was necessary to consider alternatives at all, see [11]. Carnwath LJ drew the distinction between cases where the alternatives were potentially relevant and those where they were necessarily relevant, i.e. a mandatory material consideration. At [17] Carnwath LJ said:
"
It is one thing to say that consideration of a possible alternative site is a potentially relevant issue, so that a decision-maker does not err in law if he has regard to it. It is quite another to say that it is necessarily relevant, so that he errs in law if he fails to have regard to it.
"
- Ms David relies on R (Forge Field Society) v Sevenoaks DC [2014] EWHC 1895. The facts are somewhat complex, but in essence there were two competing sites for the provision of affordable housing in Penhurst. It was accepted that the Committee had to consider alternative sites when considering the Forge Field application. The complaint, set out at [85] was that the OR had not addressed a proposal for affordable housing brought forward by West Kent and the Becket Trust. Lindblom J's conclusions on the point are at [87] [89]:
"87. It is clear from the officer's report that a large number of possible alternative sites had been considered, among them West Kent's land at Becket's Field the Glebelands garages site and, separately, the adjacent land owned by the Becket Trust. The report referred to the previous proposal for six affordable dwellings on the Becket Trust's land, which had been rejected for reasons including its unacceptable design and the likely effect of the development on the living conditions of local residents. The officer dismissed the possibility of a satisfactory scheme on the Becket Trust's land "in isolation" because that site might not be large enough to accommodate the required number of affordable dwellings in an acceptable scheme.
88. But Mr Strachan's main submission on this issue was based on a different concept, which was identified in Winckworth Sherwood's letters to the Council of 17 July 2013 and 5 September 2013, and supported as Winckworth Sherwood contended by the offer of co-operation in West Kent's letter to the Becket Trust of 15 November 2012. What was suggested was a new proposal for affordable housing at Becket's Field, on a site combining land owned by West Kent with land owned by the Becket Trust. The Society's complaint was, and is, that the Council had ignored, or failed to investigate, the potential for a development of affordable housing at Becket's Field, jointly promoted by the Becket Trust and West Kent. And this suggestion was made, one must remember, in correspondence stimulated by the Council in its request for comments on the draft officer's report.
89. The evidence now submitted to the court by the Council and by West Kent does not encourage one to think that a jointly promoted development at Becket's Field would come forward if the proposal for Forge Field were rejected. I acknowledge that. It is also true that the details of such a scheme were not described by Winckworth Sherwood in their correspondence with the Council, nor did the Council ask for those details. But the alternatives were not being considered as specific proposals. Each of them was being considered, in the circumstances as they were at the time, as a site for which a suitable scheme of affordable housing might be devised. This was the basis on which Winckworth Sherwood were pressing the Council to look at the potential for a joint development at Becket's Field which would overcome the objections to the previous scheme promoted by the Becket Trust on its own. That development would involve the collaboration of two registered providers of affordable housing, and would have, it was said, an obvious advantage over the proposed development at Forge Field because it would avoid harm to the settings of listed buildings, to the conservation area, and to the AONB."
- Forge Field is an example of the consideration of alternatives, where there are two or more competing sites and the LPA will only grant one planning permission. This is sometimes described as a "beauty parade" situation and there is a very clear detriment to the unsuccessful developer if permission is granted without their site being properly considered as part of an alternatives analysis. It seems likely, though each turns necessarily on its own context, that the duty of investigation of the merits and demerits of the sites may sometimes be higher where there are two sites being put forward for development and only one can gain permission, rather than where there is one site and the existence of alternatives is being put forward as an argument against granting permission on the application site. Here there was no "competing site", and therefore this case does not fall into the "beauty parade" scenario.
- Ms Townsend accepts that there was a duty to consider alternatives, but submits this is because of the terms of the relevant Development Plan policies, rather than on the caselaw.
- Although in theory there may be some relevance in how the duty to consider alternatives arose, in the light of Ms Townsend's concession, the real issue is whether the consideration of alternatives that was undertaken by the LPA was legally sufficient. The fact that a proposal is contrary to a Development Plan policy is itself likely to be a clear planning objection. So the two potential bases for finding a duty to consider alternatives appear to me to elide into one. The question is whether the consideration given was legally adequate and whether members were materially misled. The real challenge here is akin to a Tameside (Secretary of State for Education and Science v Tameside MBC [1977] AC 1014) argument was sufficient enquiry undertaken into alternative sites? In my view the Officers' analysis, that the alternative site assessment by the Interested Party was poor but it remained appropriate to grant planning permission, was capable of applying whether the duty arose under policy or as a relevant consideration.
- This is not a case where the LPA failed to consider alternatives at all, such as arose in Derbyshire Dales. There is no doubt that some consideration of alternatives was given in the OR, and that information was before the LPA as to the site search. The Interested Party had conducted a site search in 2017 and updated that search in 2019, including in particular the Stonehill Way site. This site is part of an industrial site and consists of two plots, one 0.19ha and the second 1.87ha. Importantly, it lies on the edge of Cromer and is within the NCNL, although as is clear from the Addendum Planning Statement referred to above that site is previously developed land.
- The Addendum Planning Statement, see [19] above, sets out the issues with the Stonehill Way site in some detail, including as to its location, although it is not entirely clear whether it was understood at that time to be within the AONB/NCNL.
- Ms David's criticism is that the OR itself accepts that the Applicant's information on alternatives was limited, see OR3.22, and that left the Officers unable to give clear advice as to whether there was or was not a suitable alternative.
- In my view the consideration of alternatives was legally adequate. It is accepted that a legal duty to consider alternatives did arise. However, what investigations are undertaken and the adequacy of the information on alternatives involves the exercise of planning judgement. The level of investigation of alternative sites, both in terms of the quantity of sites considered and the detail in relation to each individual site, can vary enormously. This will be a function of the nature of the proposal, the scale of the negative impacts and the relevant need. So, as but an example, a proposal for a nuclear power station is likely to involve a lengthy and very detailed assessment of alternative sites (and technologies) because of the very significant impacts of the development. That will be at one end of the spectrum of the level of required consideration of alternatives.
- It has to be remembered that investigation of other sites will take both time and expense. Such time and expense and thus the investigation of alternatives, must be proportionate to the potential harm from the development. Therefore the level of that investigation will depend on the scale of the potential negative impacts on the development, the prospective benefits of the alternative sites and the level of need/urgency for the development. Given that these are necessarily issues of planning judgement, in my view the Court should only intervene and say the consideration of alternatives was legally inadequate if the approach of the Local Planning Authority is Wednesbury (Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 22) irrational. Essentially, the issue is one of the scope of necessary investigation, which is similar to a Tameside challenge.
- Considering the caselaw set out above, it is apparent that each case is highly context specific. Therefore in Forge Field a high level of scrutiny of the alternative site was required because there were two competing sites for one planning permission. That is not the case here.
- Here, the negative impacts of the proposal were limited as is explained in detail in the OR. I set this out in more detail under Ground Five below. The need for the new site is explained in the OR and accepted. The weight attached to the need and to the timing of the development was again a matter of planning judgement. The OR acknowledges the limitations of the alternatives exercise, and is clear that more could have been done. It expressly acknowledges that there could be other alternative sites, because the assessment had been limited. It also concludes that the proposal is for this reason a departure from the Development Plan. The judgement in the OR, accepted by members, was that the consideration of alternatives was sufficient on the facts of the case. In my view that conclusion was not irrational.
- I am fortified in this conclusion by the reference in the Addendum Planning Statement to the issues with the Stonehill Way site. That site was known and was considered. The judgement in the OR that it was not necessary to adjourn the consideration of the application, or refuse it, on the basis that there had not been adequate consideration of alternatives, is in my judgement a rational one.
- Finally, I turn to the application to admit new evidence and the EBQ site. This site was not before members and is not referred to in the OR. Mr Zieja accepts that he did not know about the existence of this site.
- In my view this issue must come back to the scope of the duty to consider alternatives. The OR makes clear to members that the Interested Party's site assessment was inadequate to satisfy the requirements of policy that alternative sites had been fully assessed. Members therefore knew that it was possible that there were other alternative sites, including ones that were outside the NCNL. It was open to them to find that there was a departure from policy and other considerations did not justify the grant of permission, but they did not reach that conclusion. Rather, in light of the very limited impact of the proposal and the need, they determined that no further assessment of alternatives was required. In my view that was a conclusion open to them, and it follows that the possibility of another potential alternative site does not change the analysis.
- As I have set out above it is for the same reason that I refuse permission to amend the SFG. The possibility of a site outside the NCNL was contemplated in the OR and therefore by the LA. Therefore the error in Mr Zieja's mind between the two sites is not material.
- It also follows that there was no duty of candour requiring the Interested Party to bring the existence of that site to the attention of the court. If there was no duty on the LPA to further investigate alternative sites, then there cannot be a procedural duty on the Interested Party to bring other sites to the attention of the court.
Ground Two
- The Claimant submits that the LPA erred in its determination that the proposal was not "major development" for the purposes of NPPF para 183. Ms David's submissions are on two heads. Firstly she says the LPA took into account irrelevant considerations under para 183, when it said in OR3.24 that the site was "essential infrastructure for the use of the local community" and referred to the fact that there was an existing HWRC in the vicinity, which was also an irrelevant consideration that had nothing to do with the test for major development. Further, she submits that the conclusion that the site was not "major development" was irrational in any event.
- OR3.24 states:
"The definition of major development' in this instance differs from that found in the Town and Country Planning (Development Management Procedure) (England) Order 2015 as amended, where waste development as a whole is considered to constitute major development. In this instance given that the site is essential infrastructure for the use of the local community to dispose of waste, only roughly 0.5ha in scale with a relatively low throughput of 6,000tpa, no difference in traffic movements given it is serving the same catchment as the existing facility, is located adjacent to a primary transport route, the A148 and the current operational HWRC facility (which is also located in the National Landscape), the CPA, on balance, do not consider the proposal to be 'major development' when considering paragraph 183 of the NPPF (2023). However, in The Countryside Charity (CPRE) response they have made it clear they consider the proposal to amount to 'major development' and do not consider a clear assessment has been made on the exceptional circumstances to site the development in the National Landscape and nor do the site selection criteria give reference to landscape designations."
- NPPF para 183 and footnote 64 states:
"183. When considering applications for development within National Parks, the Broads and Areas of Outstanding Natural Beauty, permission should be refused for major development (footnote 64) other than in exceptional circumstances, and where it can be demonstrated that the development is in the public interest. Consideration of such applications should include an assessment of:
a) the need for the development, including in terms of any national considerations, and the impact of permitting it, or refusing it, upon the local economy;
b) the cost of, and scope for, developing outside the designated area, or meeting the need for it in some other way; and
c) any detrimental effect on the environment, the landscape and recreational opportunities, and the extent to which that could be moderated.
Footnote 64: For the purposes of paragraphs 182 and 183, whether a proposal is 'major development' is a matter for the decision maker, taking into account its nature, scale and setting, and whether it could have a significant adverse impact on the purposes for which the area has been designated or defined."
- Ms David accepts that the question of whether the proposed development is "major development" is a matter of planning judgement, and "major" should be given its natural meaning, Aston v SSCLG [2013] EWHC 1936 at [93]. However, she relies upon the fact that the development is "major development" within the meaning of the Town and Country Planning (Development Management Procedure) England Order 2015.
- Ms Townsend accepts that the fact the development is essential infrastructure, and the location of the existing facility are indeed irrelevant considerations for the purposes of para 183. However, she submits these are non-material errors, which did not materially mislead the LPA in its conclusions.
- I agree with Ms Townsend that the references to essential infrastructure and the existing facility come nowhere close to the test set out in Mansell. This is a fairly classic example of reading one or two sentences in the OR without having regard to the rest of the paragraph and the OR as a whole.
- The rest of OR3.24 sets out wholly relevant reasons why the development should not be categorised as "major development". In particular, the size of the site, the very limited impacts and the relatively low throughput of waste were all highly relevant matters. The LPA was therefore on an entirely sound footing in finding that the test was not met. As a matter of fact the application was both essential infrastructure and close to the existing facility, so neither of these references were factually incorrect. It is therefore impossible to see that the members were materially misled by the fact that OR3.24 referred to essential infrastructure and the existing facility within the paragraph dealing with major development. The overall conclusion was a reasonable one, based on relevant considerations.
- In respect of the rationality part of this Ground, it is again accepted that establishing irrationality in a context such as this, with a high level of planning judgement and a statutory decision making function, is a high hurdle for the Claimant to cross. Ms David submits that the decision is "obviously wrong" because of the size of the Site and machinery and other equipment that will be placed upon it; the level of throughput and because of her submission that the development will be "visually oppressive", operationally noisy, and an unpleasant smelling operation immediately adjacent" to the Claimant's facility.
- In my view, and that of the LPA, these issues are significantly overstated. The LPA took into account the relevant matters in footnote 64. The operation of the Site was only marginally greater than the existing use. It was open to the LPA to conclude that the activities and the physical scale were not themselves "major". Mr Zieja points to the fact that the Environment Agency's Standard Rules Permits for HWRCs are capped at 75,000tpa. It can be seen from this that in HWRC terms, this is a relatively small facility. The Site was adjacent to a main road and to an existing HWRC, so the setting did not itself demand a finding of "major development".
- In terms of potential significant adverse impact, the OR assessed the impacts and found they were limited. The Landscape and Visual Impact Assessment ("LVIA") had found a minor adverse visual impact on the immediate context, and a moderate adverse impact on the Site itself, which strongly supports a finding of no significant adverse impact.
- Given that, in my view, the conclusion that the LPA came to in this respect was a reasonable one, well within the scope of their planning judgement, there is no basis for finding that the members erred in law in their conclusion about major development. There was nothing even arguably irrational in the members' conclusion on the issue. The site was a relatively small one with a quite limited turnover. There were no additional traffic movements generated and it was very close to a main road.
- For all these reasons I reject this Ground.
Ground Three
- This Ground is that assuming the development was "major development", the OR failed to properly address NPPF para 182-183, as set out above, and the tests for development in an AONB, or equivalent. The OR stated that if the development was "major development" within the meaning of para 183, then the test in that paragraph of exceptional circumstances and need was met. This conclusion is challenged by the Claimant.
- Both parties refer to R (Mevagissey PC) v Cornwall Council [2013] EWHC 3684 at [7] and [51].
"7. Thus, amongst material considerations, national policy gives the conservation of landscape and scenic beauty in an AONB a particular enhanced status. It requires an application for planning permission for a major development within an AONB to be refused, unless (i) there are exceptional circumstances ("exceptional" in this context connoting rarity); and (ii) it is demonstrated that, despite giving great weight to conserving the landscape and scenic beauty in the AONB, the development is in the public interest. As well as any detrimental effect of the development on the landscape, this national policy requires the planning decision-maker to assess, and take into consideration, the need for the development and the scope for meeting the assessed need in some other way."
"51. Where an application is made for a development in an AONB, the relevant committee or other planning decision-makers are required to take into account and weigh all material considerations. However, as I have explained above (paragraph 6), the NPPF places the conservation of the landscape and scenic beauty of an AONB into a special category of material consideration: as a matter of policy paragraph 115 requires it to be given "great weight", and paragraph 116 of the NPPF requires permission for a major development such as this in an AONB to be refused save in exceptional circumstances and where it can be demonstrated the proposed development is in the public interest. In coming to a determination of such a planning application under this policy, the committee are therefore required, not simply to weigh all material considerations in a balance, but to refuse an application unless they are satisfied that (i) there are exceptional circumstances, and (ii) it is demonstrated that, despite giving great weight to conserving the landscape and scenic beauty in the AONB, the development is in the public interest. The committee may of course depart from the guidance (see paragraph 41(iv) above), but (i) the Planning Committee certainly gave no reasons for doing so, and (ii) as I have indicated above (paragraph 49(i)), Mrs Townsend did not seek to argue that they did, in this case, deliberately and informedly depart from the guidance."
- Ms David submits that the OR failed to advise members as to whether there were exceptional circumstances that justify development in the NCNL. OR3.43 stated that the Site was only 77m2 larger than the existing site, whereas it was in fact some four times larger. Further, there was no assessment of how the need might be met in another way, in particular upon other sites.
- Ms Townsend points out that in OR3.23 (set out above) the test in the NPPF was accurately set out, including the need for exceptional circumstances if it was "major development". It was made clear in OR3.25 that the test for major development was met.
- Ms Townsend submits that the OR was addressing members who were very familiar with the NCNL/AONB policy, particularly given that a very large part of the LPA area fell within this jurisdiction. She relies upon R (Wealden BC) v SSCLG [2018] Env LR 5 at [63] dealing with the same test:
"63. The policy requires the exercise of planning judgment. The decision-maker must consider whether there are "exceptional circumstances" justifying the granting of planning permission for the development in question, and whether granting permission would be "in the public interest". The three bullet points do not exclude other considerations relevant to those questions. The first requires the decision-maker to consider the "need for the development", including "any national considerations" for example, the considerations of national policy for housing need and supply. The second bullet point does not refer specifically to alternative sites. It refers to the "cost" and "scope" for development "elsewhere outside the designated area", and to the possibility of meeting of the need for the development "in some other way". In many cases, this will involve the consideration of alternative sites. But the policy does not prescribe for the decision-maker how alternative sites are to be assessed in any particular case. It does not say that this exercise must relate to the whole of a local planning authority's administrative area, or to an area larger or smaller than that. This will always depend on the circumstances of the case in hand. The third bullet point requires the decision-maker to consider potential harm in the three respects referred to again, always a matter of planning judgment."
- The starting point on this Ground is that the OR advised that the development was not "major development" and under Ground Two I have found that was a conclusion open to the members. Therefore the entire debate about whether there were "exceptional circumstances" did not need to be dealt with.
- But in any event, the OR set out the correct test and all the relevant information for the members to consider whether there were exceptional circumstances and whether there was a need for the development. There was nothing in my view that was materially misleading in the OR in respect of this issue. As Ms Townsend says, the OR was addressed to members who will have been very familiar with the AONB test in the NPPF. Therefore the fact that no express analysis of what amounted to "exceptional circumstances" was carried out does not matter given that members will have routinely applied that test when considering applications within the NCNL/AONB. It was a matter of planning judgement for the members to determine whether they thought that the factual situation amounted to exceptional circumstances.
- Further, even if the above analysis is incorrect, in my view this is an appropriate situation to apply s.31(2A) of the Supreme Court Act 1981. I apply the tests set out by Ms Grange KC in R (Cava Bien) v Milton Keynes Council [2021] EWHC 3003 (Admin). Given that members were advised that the development was not major development, and given that they voted to grant planning permission, it is in my view highly likely that the absence of express reference to the exceptional circumstances test would have made no difference to the decision.
Ground Four
- Ground Four is not pursued.
Ground Five
- This Ground is that the LPA failed to meet the requirements of s.149 Equality Act 2010. Section 149 states:
"149 Public sector equality duty
(1) A public authority must, in the exercise of its functions, have due regard to the need to
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
.
(2) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c)
.
(3) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities.
.
(4) The relevant protected characteristics are
age;
disability;
gender reassignment;
pregnancy and maternity;
race;
religion or belief;
sex;
sexual orientation.
."
- This section has been subject to a large amount of litigation, but the relevant principles remain those set out in R (Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 at [25]:
"25. Two lever arch files of authorities were placed before the court which included some thirteen cases in which relevant duties and the requirements placed on public authorities have been considered. Fortunately the principles were not significantly in dispute between the parties. I summarise the points identified, which are not, I think, different in substance from those summarised by the Judge in paragraph 32 of his judgment.
(1) As stated by Arden LJ in R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213; [2006] EWCA Civ 1293 at [274], equality duties are an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation.
(2) An important evidential element in the demonstration of the discharge of the duty is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements: R (BAPIO Action Ltd) v Secretary of State for the Home Department [2007] EWHC 199 (QB) (Stanley Burnton J (as he then was)).
(3) The relevant duty is upon the Minister or other decision maker personally. What matters is what he or she took into account and what he or she knew. Thus, the Minister or decision maker cannot be taken to know what his or her officials know or what may have been in the minds of officials in proffering their advice: R (National Association of Health Stores) v Department of Health [2005] EWCA Civ 154 at [26 27] per Sedley LJ.
(4) A Minister must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a "rearguard action", following a concluded decision: per Moses LJ, sitting as a Judge of the Administrative Court, in Kaur & Shah v LB Ealing [2008] EWHC 2062 (Admin) at [23 24].
(5) These and other points were reviewed by Aikens LJ, giving the judgment of the Divisional Court, in R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), as follows:
i) The public authority decision maker must be aware of the duty to have "due regard" to the relevant matters;
ii) The duty must be fulfilled before and at the time when a particular policy is being considered;
iii) The duty must be "exercised in substance, with rigour, and with an open mind". It is not a question of "ticking boxes"; while there is no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduces the scope for argument;
iv) The duty is non-delegable; and
v) Is a continuing one.
vi) It is good practice for a decision maker to keep records demonstrating consideration of the duty.
(6) "[G]eneral regard to issues of equality is not the same as having specific regard, by way of conscious approach to the statutory criteria." (per Davis J (as he then was) in R (Meany) v Harlow DC[2009] EWHC 559 (Admin) at [84], approved in this court in R (Bailey) v Brent LBC [2011] EWCA Civ 1586 at [7475].)
(7) Officials reporting to or advising Ministers/other public authority decision makers, on matters material to the discharge of the duty, must not merely tell the Minister/decision maker what he/she wants to hear but they have to be "rigorous in both enquiring and reporting to them": R (Domb) v Hammersmith & Fulham LBC [2009] EWCA Civ 941 at [79] per Sedley LJ.
(8) Finally, and with respect, it is I think, helpful to recall passages from the judgment of my Lord, Elias LJ, in R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin) (Divisional Court) as follows:
(i) At paragraphs [7778]
"[77] Contrary to a submission advanced by Ms Mountfield, I do not accept that this means that it is for the court to determine whether appropriate weight has been given to the duty. Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then as Dyson LJ in Baker (para [34]) made clear, it is for the decision maker to decide how much weight should be given to the various factors informing the decision.
[78] The concept of 'due regard' requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker. In short, the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors. If Ms Mountfield's submissions on this point were correct, it would allow unelected judges to review on substantive merits grounds almost all aspects of public decision making."
(ii) At paragraphs [8990]
"[89] It is also alleged that the PSED in this case involves a duty of inquiry. The submission is that the combination of the principles in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 and the duty of due regard under the statute requires public authorities to be properly informed before taking a decision. If the relevant material is not available, there will be a duty to acquire it and this will frequently mean than some further consultation with appropriate groups is required. Ms Mountfield referred to the following passage from the judgment of Aikens LJ in Brown (para [85]):
'
.the public authority concerned will, in our view, have to have due regard to the need to take steps to gather relevant information in order that it can properly take steps to take into account disabled persons' disabilities in the context of the particular function under consideration.'
[90] I respectfully agree
.""
- There are a number of subsequent cases that repeat the Bracking principles, and then add certain points. In R (Bridges) v Chief Constable of South Wales Police [2020] 1 WLR 5037 at [175] the Court of Appeal added:
"175.
(6) Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then it is for the decision-maker to decide how much weight should be given to the various factors informing the decision."
- Ms Townsend relies on R (End Violence against Women Coalition) v Director of Public Prosecutions [2021] 1 WLR 5829, in particular Lord Burnett LCJ at [86]:
"86. Section 149 of the 2010 Act applies to a public authority when it exercises its functions (see section 149(1) ). It requires a public authority to give the equality needs which are listed in section 149 the regard which is 'due' in the particular context. It does not dictate a particular result. It does not require an elaborate structure of secondary decision making every time a public authority makes any decision which might engage the listed equality needs, however remotely. The court is not concerned with formulaic box-ticking, but with the question whether, in substance, the public authority has complied with section 149 . A public authority can comply with section 149 even if the decision maker does not refer to section 149 (see, for example, Hottak v. Southwark London Borough Council [2015] UKSC 30; [2016] AC 811 )."
- Shortly after that decision, the Court of Appeal considered s.149 again in R (Sheakh) v Lambeth LBC [2022] PTSR 1315. That was a challenge to a decision to introduce three low traffic areas, the Claimant being a severely disabled person. The Court summarised the approach at [10] and [13] and [15]:
"10. There is ample authority on the meaning and effect of section 149 . Five points are especially relevant here. First, section 149 does not require a substantive result (see the judgment of Lord Justice Dyson in R. (on the application of Baker) v Secretary of State for Communities and Local Government [2008] EWCA Civ 141; [2009] PTSR 809 (at paragraph 31) ). Second, it does not prescribe a particular procedure. It does not, for example, mandate the production of an equality impact assessment at any particular moment in a process of decision-making, or indeed at all (see R. (on the application of Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158; [2009] PTSR 1506, at paragraph 89 ). Third, like other public law duties, it implies a duty of reasonable enquiry (see Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 ). Fourth, it requires a decision-maker to understand the obvious equality impacts of a decision before adopting a policy (see the judgment of Lord Justice Pill, with which the other members of this court agreed, in R. (on the application of Bailey) v Brent London Borough Council [2011] EWCA Civ 1586; [2012] Eq. L.R. 168, at paragraphs 79, 81 and 82 ). And fifth, courts should not engage in an unduly legalistic investigation of the way in which a local authority has assessed the impact of a decision on the equality needs (see the judgment of Lord Justice Davis in Bailey , with which Lord Justice Richards agreed, at paragraph 102)."
"13. Both sides in this appeal referred to "the Bracking requirements". In our view it is better to refer to these propositions as "principles" rather than "requirements" as did the Divisional Court (Lord Justice Singh and Mr Justice Swift) in its recent decision in R. (on the application of Good Law Project and Runnymede Trust) v The Prime Minister and Secretary of State for Health and Social Care [2022] EWHC 298 (Admin) (at paragraph 106) . It is also important to remember that these glosses are no substitute for the language of the statute."
"15. Implicit in what was said in End Violence Against Women is that the statutory provisions must always be read as they are useful as their interpretation by judges can be. The basic issue in every case should be a simple one: whether a public authority has had "due regard" to the needs identified in section 149 . As Elias L.J. said in Hurley (at paragraph 78), "
the decision maker must be clear precisely what the equality implications are
but ultimately it is for him to decide what weight they should be given in the light of all relevant factors". That observation should be qualified by the approach of this court in Bailey . The decision-maker is concerned with the obvious impacts on equality, and not with the detail of every conceivable impact."
- Ms David submits that the content of the OR itself did not amount to due regard having been given to the equality issues. There was no reference to the PSED and no regard was given to the particular make-up of the cohort of children attending Hilltop and their particular sensitivities to the noise impacts from the proposed site. She submits that an Equalities Impact Assessment ("EqIA") should have been drawn up before granting planning permission, and that if that exercise had been done the decision might have been different.
- It is clear from the caselaw set out above that what is required to be done to meet the "due regard" duty will necessarily vary depending on the facts and context of the particular decision in question. Sheakh establishes that there is no requirement to produce an EqIA in every case where equalities impacts are raised, the question for the court is whether on the facts of the case "due regard" was given.
- In my view the principal legal issue under this Ground is the degree to which the LPA had a duty of inquiry in respect to what is now said to be an impact on children with protected characteristics. Although the caselaw sets out the principles upon which the Court should approach this issue, the answer will necessarily depend on the facts and context of the individual case and the matters which were either drawn to the LPA's attention, or which were reasonably within their knowledge.
- This case, unlike many of the others on PSED, does not turn on an assessment of a general group, where it is reasonably clear that further investigation by the public authority will be needed. The group to which the PSED is said to apply and to have been breached, is the children who attended Hilltop and had protected characteristics. The Claimant accepts that the LPA did take into account the impact on the children generally, rather it focuses on the specific sub-group of children with disabilities or vulnerabilities. Mr Read, the owner and operator of Hilltop, says in his witness statement that a significant proportion of the children have disabilities including being on the autistic spectrum and having ADHD. He says this makes them particularly vulnerable to noise from the proposed Site.
- In its representations to the LPA during the course of consultation, the Claimant raised concerns about the impact of noise and other emissions from the Site, but did not refer to any particular characteristics of the children who attended Hilltop. At OR3.96 the reference to "child protection" is a direct reference to what the Claimant itself had said in the representations.
- Mr Zieja says that he assumed that the children attending Hilltop would have the same characteristics as the rest of the population, i.e. that the proportion of children with disabilities would in broad terms follow that of the general population. In my view that was a perfectly reasonable assumption to make in the light of the representations that the Claimant itself had made. Mr Zieja also says that he reviewed the planning history of the existing site and found no evidence of any complaints about the operation of the site, for example around loud noises impacting on Hilltop's activities.
- Ms David relies upon the representations made by Bramfield House School, a specialist school for boys with social, emotional, mental health, communication difficulties and associated challenging behaviours, who filed a statement in support of the claim and explained as follows:
"The natural environment Hilltop offers plays a crucial role in supporting the development and well-being of our children with Special Educational Needs (SEN).
"We see huge gains in the children's social development, self-esteem, confidence and mutual respect and support. The Hilltop environment provides a sensory-rich setting that works in harmony with these aims to reduce stress, promote social interactions and foster a sense of calm and focus. This sense of clam [sic] and focus is crucial in the success of our visits and providing this opportunity for our children.
"I am very concerned that the proximity of possible industrial activity to the very special natural environment of Hilltop, poses a significant risk to providing this opportunity for our children. Industrial operations often lead to pollution, noise, and other environmental hazards that can degrade the quality of natural spaces. Specifically, for our children, loud sudden noises and general background industrial noises significantly affect their ability to remain engaged in the learning process."
- In the light of the challenge to the decision the LPA has now carried out an EqIA. Ms David criticises this exercise on the grounds that it is an ex post facto justification produced "to shore up the Decision after the fact", and that it was done without making any enquiries of the groups that might be directly affected. In my view this document would only be relevant to the issue of relief and s.31A of the Supreme Court Act 1981 if I concluded that the decision was unlawful on Ground Five and then had to determine whether to quash the decision.
- There are two factors here which in my view lead to the level of consideration necessary to meet the "due regard" duty in s.149 to be relatively low. Firstly, the degree of likely impact on the children with protected characteristics, and secondly, the information that was given to the LPA about the vulnerable cohort of children.
- In respect of impact, the LPA had carried out a detailed assessment of noise impacts, which is not in itself criticised. There was no evidence that the noise impact from the proposed site would be any greater on Hilltop than from the existing use, which would necessarily cease. The same activities were to be carried out, with approximately the same level of usage and the same hours. It may be that the machinery on site might slightly change, but the noise assessment does not suggest that there would be any material increase in noise being generated.
- The proposed Site is slightly closer to the part of the Hilltop playing fields which Ms David says are currently used. However, the erection of the acoustic fence on the northern and western side of the Site will materially reduce any noise impact from the Site. It is also relevant that the only part of the Hilltop site which is in any way affected by noise from the Site is the playing fields. This is an open air use, in an area close to a main road and to an existing HWRC. It is therefore not currently an area without noise disturbance. It is relevant that Mr Zieja found no record of complaints about the existing use of the HWRC and there is no evidence of the LPA being aware of concerns raised by Hilltop relating to children with particular characteristics.
- The noise which the Claimant appears to be concerned about is "loud bangs" which in technical noise terms is "LAmax". However, there is no reason why the LAmax events would be either higher or more frequent from the proposed Site rather than the existing site.
- Therefore it is reasonable to assume that any additional impact above that from the existing HWRC, on users with or without protective characteristics, would be low. That entirely accords with the noise assessment.
- The second factor is the information that the LPA was given by the Claimant about any particularly vulnerable users. Ms David accepts that the Claimant itself referred only to "child protection" concerns and made no reference to the possible additional impact on children with disabilities or particular vulnerabilities.
- Ms David submits that there was a duty on the LPA to investigate the nature of the cohort of children, in particular in the light of the representations from Bramfield House School. However, the level of investigation that is necessary will turn on the particular context, see Sheakh at [15]. The Court of Appeal said that the decision maker should be concerned with the obvious impacts, and is not under a duty to investigate every detail. Here, the LPA was entitled to rely upon the information it had been given by the Claimant as to its own site users. This is not a situation where there was a broad and undefined group where a decision maker might have to take a more proactive approach to investigate potential impacts. Here there was one user, Hilltop, who had made representations and who necessarily had the full information about the children with protected characteristics upon whom they now seek to rely. It was therefore entirely reasonable for the LPA to assume that Hilltop would have drawn attention to any particularly vulnerable users.
- Turning then to the regard the LPA (and in particular the members through the OR) had to these issues, the OR dealt appropriately with the noise impact on Hilltop. The OR referred to the impact on children on the Site, using the same phraseology as Hilltop itself, "child protection". It is correct that Mr Zieja assumed that the children would have the same proportion of disabilities as the population as a whole, and it now seems that is not the case. However, that makes no difference on the facts of the case. There was no evidence in respect of the likely impacts from the proposed Site that would have led to any different conclusions on the application.
- I therefore reject this Ground. It is therefore not necessary for me to consider the EqIA that was undertaken after the decision was made.
Ground Six
- This Ground is that the screening opinion carried out pursuant to regulation 6 of the EIA Regulations 2017 was wrong in law because (i) it failed to consider the effects of certain types of waste on the site and (ii) it failed to consider the impact on human health.
- On 24 March 2022 the LPA adopted a screening opinion in accordance with reg.6 of the EIA Regulations 2017. It concluded that "the siting of a new recycling centre for household waste and a small proportion of trade waste on land to the north-east of the existing Sheringham Recycling Centre on Holt Road off the A148 on land of roughly 0.4ha" would not be likely to have significant effects on the environment, and accordingly would not be EIA development.
- Ms David relies on the definition of Schedule 2 development within regulation 2(1), and the fact that a "sensitive area" includes an AONB.
- Where a screening opinion is provided, the LPA is required to state its reasons by reference to the criteria in Schedule 3. Those criteria include (i) characteristics of the development (ii) location of the development and (iii) the types and characteristics of the potential impact. When considering (i), particular regard must be had to the production of waste; pollution and nuisances; the risk of major accidents and/or disasters; and the risks to human health due to water or air pollution. The assessment of the third criterion, which is concerned with the assessment of likely significant effects of the development on the environment, is concerned with the impact of the development taking into account the factors in reg 4(2). Reg 4(2) provides as follows:
"(2) The EIA must identify, describe and assess in an appropriate manner, in light of each individual case, the direct and indirect significant effects of the proposed development on the following factors
(a) population and human health;
(b) biodiversity, with particular attention to species and habitats protected under any law that implemented Directive 92/43/EEC2 and Directive 2009/147/EC3;
(c) land, soil, water, air and climate;
"
- Ms David submits that the proposal is Schedule 2 development because of its location in the AONB. The screening opinion describes the development as a "new recycling centre for household waste and a small proportion of trade waste" on a site of "roughly 0.4ha" (so around an acre). There is no mention of Hilltop at all, including its sensitive receptors and those who might by virtue of a protected characteristic be particularly sensitive, nor the close proximity of the playing field. The Applicant's original request does not refer to the sensitive users at Hilltop and its close proximity either in the context of "socio-economics", "human health" or "waste".
- She submits that the screening opinion therefore did not consider the potentially significant effects of the commercial, industrial and hazardous waste and did not consider pollution and the risk of major accidents and the risk to human health.
- Ms Townsend points to the very well known principles on the approach the Court should take to a challenge to a screening opinion, as summarised by Coulson LJ in Kenyon v SSHCLG [2021] Env LR 8 at [13] to [16]:
"13. The limited nature and scope of a screening opinion was emphasised by Moore-Bick LJ in R (Bateman) v South Cambridgeshire District Council [2011] EWCA Civ 157 He said at paragraph 20:
"20. Having dealt with those points I can return to the substance of the argument, which is that the planning officer failed to demonstrate that she had considered the likely effect of the development in relation to traffic movements, the landscape and noise or, if she had, to explain why an EIA was not required in this case. When considering a submission of this kind I think it important to bear in mind the nature of what is involved in giving a screening opinion. It is not intended to involve a detailed assessment of factors relevant to the grant of planning permission; that comes later and will ordinarily include an assessment of environmental factors, among others. Nor does it involve a full assessment of any identifiable environmental effects. It involves only a decision, almost inevitably on the basis of less than complete information, whether an EIA needs to be undertaken at all. I think it important, therefore, that the court should not impose too high a burden on planning authorities in relation to what is no more than a procedure intended to identify the relatively small number of cases in which the development is likely to have significant effects on the environment, hence the term "screening opinion"."
In the same case, Mummery LJ said:
"40. In my judgment, the decision not to have an EIA is a significantly different kind of decision from a refusal or grant of planning permission. The reasons for a preliminary administrative decision whether or not to have an EIA do not have to satisfy the same standards of information and reasoning as would apply to a substantive decision on a planning application. The degree of "grappling" is different, more provisional and less exacting
"
14. Bateman was a case in which the Court of Appeal concluded (by a majority) that the reasons given for the negative screening opinion (which amounted to 1&12; sentences) were inadequate. However, as has been pointed out in subsequent cases, this was unsurprising on the facts, given that there was no explanation for why the expansion of a grain storage facility from 90,000 tonnes to 300,000 tonnes, and from 12 to 60 large silos, was not likely to have a significant effect on the environment.
15. As to the practical limits of any screening decision, Lindblom J (as he then was) said in Hockley v Essex County Council & Anr [2013] EWHC 4051 (Admin) :
"102. There has to be a sensible limit to what a screening decision-maker is expected to do. This view is supported in the cases to which I have referred, notably, for example, in Bateman (see paragraph 24 above). Conjecture about future development on other sites that might or might not act with the development in question to produce indirect, secondary or cumulative effects is not in the screening decision-maker's remit. I do not think the precautionary approach extends to that. And when it is suggested in a claim for judicial review that a screening decision was deficient because some potential cumulative effect was left out, it is not enough for a claimant simply to point to other developments in the locality that have been or might be approved, and to leave it to the court to work out whether any aggregate effects were unlikely to be significant. Unless it is obvious that relevant and potentially significant effects on the environment have been overlooked, the court will need some objective evidence to show this was so. It will need to be satisfied that the authority responsible for the screening decision was aware, or ought to have been, of the potential cumulative effects; that the screening opinion could not reasonably have been negative if those potential effects had been considered; and that this was, or should have been, apparent to the authority at the time."
16. Other authorities have demonstrated that a screening direction is a preliminary assessment rather than an examination paper expected to contain a record of each and every issue and each and every conclusion: see Mackman v SSCLG [2013] EWHC 3396 , at paragraph 65 72. In the same case in the Court of Appeal ([2015] EWCA Civ 716, Sullivan LJ said:
"18. The majority of the Court of Appeal in Bateman concluded that the reasons given for the negative screening opinion in that case were inadequate. Mr. Mackenzie submitted that the reasons given in Bateman were less inadequate than the reasons given in the screening opinion as the present case. As in Bateman , there was no clear statement of Mrs. Denmark's reasons for her conclusion that the proposed development was not likely to have significant environmental effects. The "reasons" amounted to no more than a bare conclusion.
19. While there is some force in this submission, the circumstances of this case are very different from those in Bateman . In Bateman the screening opinion had concluded (unsurprisingly) that the main impacts of a proposal to expand a grain storage facility with a capacity of 90,000 tons in 12 silos to a capacity of 300,000 tons in 60 additional silos each about 18 metres high and 23 metres in diameter, were likely to be "increase in traffic movements, landscape impact and noise disturbance to local residents" (see paragraph 6 of the judgment of Moore-Bick LJ). In those circumstances, an explanation as to why those impacts on the environment were not likely to be significant was called for, and was not contained in the screening opinion.
20. In paragraph 78 of her judgment Lang J correctly said that the level of detail in a screening opinion would depend upon the complexity of the issues to be considered in the particular case, so that the test was whether the reasons were adequate for this particular application. She accepted that the reasons were brief, but concluded that they were not inadequate "in the circumstances of this particular case which was not complex or borderline."
In Mackman , the challenge to the screening opinion was dismissed. I note in passing that Sullivan LJ said at paragraph 9 that it had been rightly accepted in that case "that the mere fact that cumulative impact had not been expressly referred to in the screening opinion did not mean that it had not been taken into account.""
- As is clear from the caselaw a judgement such as this is a matter of planning judgement for the Local Authority subject to well known principles of public law error. I accept that the LPA, through Mr Zieja, did consider the relevant effects and concluded that there was no significant likely effect that would give rise to the proposed development being EIA Development. In my view that was a wholly lawful conclusion, indeed the only one he could have rationally come to on the facts.
- As is explained in the section on Ground Five above, the changes to the composition of the waste were minimal and there was no evidence that there was any risk to human health. This was a relatively small household waste recycling site, adjacent to an existing household waste recycling site of approximately the same size, where there had been no evidence of significant complaints or concerns about any of the issues raised by Ms David. There was no evidence that the existing site had caused any harm to human health or even to the Claimant and its use of the adjoining land.
- Mr Zieja considered the impact on the AONB/NCNL, which was the only reason it was Schedule 2 development at all, but the assessment was that the impact on the AONB was minor. Further, the site was very well below the threshold level in the NPPG.
- For all these reasons there is no error of law in respect of the screening opinion, and I dismiss Ground Six.