H J Banks & Company Ltd v Secretary of State for Housing Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 23 November 2018 |
| Neutral Citation | [2018] EWHC 3141 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1731/2018 |
| Date | 23 November 2018 |
[2018] EWHC 3141 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Ouseley
Case No: CO/1731/2018
and
and
and
Miss Nathalie Lieven QC and Miss Flora Robertson (instructed by Eversheds) for the Claimant
Mr David Elvin QC and Mr Richard Moules (instructed by The Government Legal Department) for the Defendant
Mr Paul Brown QC and Mr Matthew Fraser (instructed by the Solicitor to Friends of the Earth Ltd) for the Second Interested Party
Ms Estelle Dehon (instructed by Richard Buxton Solicitors) for the Third Interested Party
Hearing dates: 17 & 18 October 2018
Judgment Approved
H.J.Banks & Co. Ltd applied for planning permission from Northumberland County Council for a surface mine for the extraction of coal, sandstone and fireclay from land at Highthorn, on the coast at Druridge Bay in south- east Northumberland. The land was to be restored to agricultural and ecological uses after the conclusion of the mining operations which were expected to take seven years. Up to 3 million tonnes of coal would be extracted. The sandstone and fireclay are not significant for this case.
The County Council resolved to grant planning permission, but the Secretary of State for Housing, Communities and Local Government exercised his statutory power to call the application in for his own determination. A Public Inquiry was held. The Inspector recommended that planning permission be granted: the proposal accorded with national policy; and the planning balance, under paragraph 149 of the National Planning Policy Framework, (“NPPF)”, favoured the development. The Secretary of State accepted most of the Inspector's conclusions, but rejected his recommendation and refused permission in his Decision Letter, (“DL”), dated 22 March 2018. He did so because of the very considerable weight he gave to the adverse effects of the emission of greenhouse gases, (“GHG”).
H. Banks challenges his decision under s288 Town and Country Planning Act 1990. The County Council, the first interested party, did not take part. The second interested party, Friends of the Earth Ltd, supported the Secretary of State with further submissions. The third interested party, an unincorporated association of local residents, Save Druridge, adopted their submissions. H.Bank's first ground was that the Secretary of State had erred in law in his interpretation of paragraph 149 of the NPPF, omitting in consequence a relevant benefit. The Secretary of State denied making the error attributed to him, on a fair reading of the DL and argued that the issue was about the application of NPPF and not its interpretation. H. Banks' second ground, the “additionality/substitution issue”, was in two parts: (a) that the Secretary of State had wrongly taken into account the GHG which would be produced during the burning of Highthorn coal in power stations for the production of electricity, or had failed to give adequate reasons for any conclusions he reached on its relevance and weight, and (b) that he had acted inconsistently with previous decisions, which had excluded the significance of GHG emitted by the burning of coal for power production, without giving adequate reasons for doing so. The Secretary of State submitted that these emissions were a material consideration to which he was entitled to give greater weight than had Inspectors, and though Mr Elvin QC for the Secretary of State conceded that this decision marked a change from the approach hitherto adopted by Inspectors, this change, albeit unacknowledged, was explained clearly enough. FoE also submitted that the previous decisions had been no more than a minor part at best of H. Banks' submissions at the Inquiry.
FoE also raised an issue about the relevance attributed by the Inspector and the Secretary of State to legal obligations which did not comply with the tests which a consideration had to pass to be material to a planning decision. This would only arise for decision if H. Banks succeeded only on its first ground.
The Inspector's Report and the Secretary of State's Decision Letter
It is helpful for both grounds to summarise the structure of each at this stage. I start with the Inspector's Report, (“IR”). The matters about which the Secretary of State, in his call-in letter, said that he particularly wished to be informed included: the extent to which the proposed development was consistent with Government policies for meeting the challenge of climate change (NPPF Chapter 10) and for the sustainable extraction of minerals (NPPF Chapter 11), the 18 November 2015 Written Ministerial Statement, (“WMS”), on the replacement of coal-fired power stations with gas, and the amended online National Planning Practice Guidance on renewable and low carbon energy.
The Inspector formulated the main issues, in the light of the call-in letter and what he thought was relevant, as including: the need for the coal having regard to likely supply and demand, the effects of the proposed development on the local and national economy, the effects of the proposed development on the emission of GHG and climate change, and the extent to which the development accorded with NPPF Chapters 10 and 11, the WMS and a further WMS of 12 October 2017, and “ The Clean Growth Strategy.”
The Inspector expressed his conclusions upon a variety of issues, such as landscape character, visual effects, the character and appearance of the area, amenity considerations, biodiversity, heritage assets, highways, tourism and recreation, the extraction of minerals, employment and the local and national economy, and GHG and climate change. In Table 1, he drew together his conclusions on the significance of these effects. In Table 3 and C123 (the C paragraph references are to the conclusions in the IR), he set out the weight he would give to each in the planning balance. To the effect on the character and appearance of the area, he accorded considerable adverse weight, but biodiversity would lead to an overall moderate benefit. There was great benefit in respect of minerals, employment and to the national and local economy, but considerable adverse effect on GHG and climate change.
The Inspector then considered the weight to be given to benefits in planning obligations under s106 of the 1990 Act, divided into those which did and those which did not comply with the requirement in regulation 122 of the Community Infrastructure Levy Regulations SI No. 498 of 2010, (“CIL”), as to which s106 agreements could “constitute a reason for granting planning permission.” Compliance with regulation 122(2) requires a test to be met: s106 agreements must be “necessary to make the development acceptable in planning terms”, “directly related” to it and “fairly and reasonably related [to it] in scale and kind”. Agreements under s39 Wildlife and Countryside Act 1981 for the management of land are not covered by the CIL Regulations.
The next stage was his consideration of “Environmental acceptability and the paragraph 149 planning balance,” which led him in C129 to conclude that “a likely national need for Highthorn coal and … its extraction, processing, transportation and combustion to generate electricity, would benefit the economy…In my judgement, the national benefits of the proposal would clearly outweigh the likely adverse impacts.” Accordingly, paragraph 149 of the NPPF was complied with. At C145, he concluded that the overall planning balance in applying the NPPF as a whole favoured the proposal. The proposal was consistent with the amended online National Planning Practice Guidance; (C146). Nor would it be inconsistent with the two WMS nor with the “ The Clean Growth Strategy,” (C153).
The Inspector's overall conclusions are set out in C160-C166. He directed himself correctly about the role of the development plan. At C161, he said that other decisions for surface coal mines had been cited, “but this proposal falls to be determined on its own merits.” There would be conflict with the development plan but the NPPF was “an important other material consideration in this case.” He contrasted the degree of restriction in the NPPF on the extraction of peat with the specific policy for coal extraction in NPPF paragraph 149, pointing out that the Government considered that “existing planning policy and legislation already set a clear expectation that climate change would be taken into account”, and that its planning guidance had not changed although it had done so for wind turbines; its latest thinking on coal was in the WMSs, the Consdoc ( Coal Generation in Great Britain – The pathway to a low-carbon future 2016) and “ The Clean Growth Strategy.”
He continued:
“C163. There is no basis for finding that the great weight to be awarded to the benefits of mineral extraction, including coal, as required by the Framework, should now be reduced because of reliance on imported coal in the future, or for any of the other economic or environmental considerations relied on by those opposing the application, or as a result of the Government's recent statements on UK energy and climate change policy. FoE's submission that no new planning permissions for coal extraction should be granted until known resources have been exhausted does not square with existing planning policy. I consider that the proposed development would comply with the Framework, taken as a whole, and that this is a material consideration which would indicate that the application should be determined other than in accordance with the...
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