Project Genesis Ltd v Secretary of State for Levelling UP, Housing and Communities
| Jurisdiction | England & Wales |
| Judge | Fordham J |
| Judgment Date | 21 February 2024 |
| Neutral Citation | [2024] EWHC 368 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: AC-2023-LDS-000223 |
[2024] EWHC 368 (Admin)
Fordham J
Case No: AC-2023-LDS-000223
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
SITTING IN LEEDS
Andrew Tabachnik KC (instructed by Clyde & Co) for the Claimant
Jack Smyth (instructed by GLD) for the First Defendant
John Barrett (instructed by DCC) for the Second Defendant (by written submissions)
The Third Defendant did not appear and was not represented
Hearing date: 29.1.24
Draft judgment: 12.2.24
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Fordham J Fordham J Introduction
This is a statutory review case about planning permission and a proposed ‘energy from waste’ facility in DE8. The Developer (the Claimant) seeks, by statutory review, to quash the decision of the Secretary of State (the First Defendant) on 26 June 2023, dismissing its appeal against the refusal by the Council (the Second Defendant) to grant planning permission. The planning reference for the planning application is DM/20/03267/WAS. The planning reference for the appeal is APP/X1355/W/22/3294182. By googling those references, access can be obtained to the planning and decision-making documents. That includes full and complete versions of documents from which I will draw extracts and to which I will give cross-references. As an aggrieved person, the Developer applies pursuant to s.288 of the Town and Country Planning Act 1990 on the statutory grounds that the Secretary of State's decision was not within the powers of the 1990 Act or that there was non-compliance with a relevant requirement, as a consequence of which the Developer's interests have been substantially prejudiced. The general principles of judicial review are applicable. There are four agreed issues in the case. Two relate to harm; two relate to benefits.
Context
The development site (DE8 7EQ) is 1.64 hectares of vacant land within the 10.8 hectare Hownsgill Industrial Park, part of the site of the former Consett Steel Works, south of Consett and west of Templetown. Within the Industrial Park are commercial premises (including the food processing business Greencore) and future development sites. Alongside the Industrial Park are a site to the south which is planning-approved for a solar farm, a site to the east which has a pending planning application for 129 dwellings (beyond which is another site with a pending application for 201 dwellings), and a site to the north which is planning-approved for a mixed-use development called the Derwent View scheme (including a hospital and a hotel).
The energy from waste facility main building would measure approximately 35.5m by 32.7m with a height of 22m. A fuel store would measure 25.8m by 43.5m with a height of 22m. The proposed chimney stack would have a height of 50m and external diameter of 1.4m. There would be a 25m high water tank, external silo, dry coolers, ash bins and a weigh bridge. The energy plant would process up to 60,000 tonnes per year of Refuse Derived Fuel. It would incorporate combined heat and power (CHP), allowing both electricity and heat to be exported for use in the surrounding area. It would generate up to 3.48MW of electricity. It would produce heat for supply to existing and proposed adjacent development.
The Developer is a company controlled and operated by the Project Genesis Trust, a charitable trust formed in 1994 to bring regeneration and renaissance to Consett and to reinvest funds in the provision of environmental, recreational and social benefits to the local community, following the closure of the Steel Works in 1980. The Trust has to date secured over 350,000 ft2 of commercial space, over 1,350 new homes, 36 acres of public open space, over 1,500 direct and indirect new jobs, £220m of construction costs, and consequential economic output of £65m a year. The County Durham Plan (CDP) says this (at §4.38): “The important role of Project Genesis in continuing to bring forward further development in the future is recognized, as are the benefits it has [brought] to the community of Consett both socially and economically and in terms of regenerating the built and natural environment”.
The North Pennines Area of Outstanding Natural Beauty (AONB) – now known as the North Pennines National Landscape – lies some 2.3km to the south-west of the development site. The grade II listed High Knitsley Farmhouse and Barn lie around 650m to the south-east. An Area of Higher Landscape Value (AHLV), designated in the CDP, lies approximately 500m to the south.
The Council had refused planning permission on 7 September 2021 for these reasons:
(1) Although the development is outside of the North Pennines Area of Outstanding Natural Beauty (AONB), the proposal, due to the scale, form and massing, would cause unacceptable harm to its special qualities. The development would be visible from locations within the AONB and would therefore not accord with County Durham Plan Policies 38, 39 and 61, Paragraph 174 of the NPPF [National Planning Policy Framework] and Paragraph 7 of the NPPW [National Planning Policy for Waste] .
(2) The proposal, due to the scale, form and massing, would cause harm to the character and quality of the landscape which would not be outweighed by benefits of the development and would therefore be unacceptable and would not accord with County Durham Plan Policies 39 and 61, Paragraph 174 of the NPPF and Paragraph 7 of the NPPW .
(3) The appearance of the proposed development does not conserve or enhance the special qualities of the landscape within the adjacent Area of Higher Landscape Value (AHLV) and considering other benefits of the development, would therefore not accord with County Durham Plan Policies 29 and 39, Paragraph 130 of the NPPF and Paragraph 7 of the NPPW .
(4) The scale, location and appearance of the development would cause harm to the setting of a designated heritage asset (the Grade II listed High Knitsley Farmhouse and Barn west of High Knitsley Farmhouse) that would not be outweighed by the public benefits of the proposal in conflict with County Durham Plan Policy 44, Paragraph 202 of the NPPF and Paragraph 7 of the NPPW .
The Claimant's appeal against the Council's refusal of planning permission was pursuant to s.78 of the 1990 Act. The appeal was ‘recovered’ for the Secretary of State's determination on 26 May 2022, because it was assessed as involving proposals giving rise to substantial regional or national controversy. An Inspector (Stephen Normington) was appointed by the Secretary of State and held an inquiry. The inquiry sat for 8 days between 9 and 19 August 2022. There was an accompanied site visit on 15 August 2022. During the inquiry the Inspector received a s.106 Unilateral Undertaking (“UU”): see §45 below.
The Inspector's Report (IR)
The IR was dated 14 December 2022. Because the appeal was ‘recovered’, the function of the Inspector was not to decide the appeal but rather to make a reasoned recommendation. That meant the function of the IR was to explain that recommendation, and to provide details to assist the Secretary of State. The IR is full and detailed. It is a 159-page document plus annexes. Its reasoned analysis culminated in a recommendation that the appeal should be allowed, and planning permission granted, subject to the imposition of a set of identified planning conditions. The IR's opening chapters addressed procedural and background matters, the site surroundings and context, the proposed development and planning policy (chapters 1 to 4). The next part of the IR contained a detailed description of the case advanced at the inquiry: by the Developer (chapter 5); by the Council (chapter 6); by the Consett Committee (the Third Defendant) as a so-called “Rule 6 Party” (chapter 7); by other persons appearing, and in written representations (chapters 8 and 9). Then there were chapters addressing planning conditions (chapter 10) and the planning obligation in the UU (chapter 11). The Inspector's conclusions occupied 180 paragraphs in IR chapter 12 (IR12.1 to IR12.180). The 11 paragraphs of IR chapter 13 (IR13.1 to IR13.11) described the planning balance and overall conclusions.
Chapter 12 opened by explaining (IR12.1) that:
In determining this appeal, the Secretary of State will need to come to a view whether the proposal comprises sustainable development within the context of the Framework [NPPF] as a whole .
Mr Tabachnik KC, for the Developer, accepts this as a working encapsulation but says a more accurate description of the Secretary of State's function is that it involved asking (a) whether there is a conflict with the development plan and, if so, (b) whether material considerations indicate that permission should be determined other than in accordance with the development plan (see s.38(6) of the Planning and Compulsory Purchase Act 2004) (2004 Act). The development plan includes CDP policies.
The Inspector continued, “to that end”, by identifying nine “main considerations” that he considered relevant in this case (IR12.1). I am adding labels (MC1 to MC9) with square-bracketed cross-references to the detailed reasoning on each topic within Chapter 12:
MC1. The principle of the development on the Hownsgill Industrial Park [IR12.2 to IR12.7] .
MC2. Whether the proposal would comprise a waste disposal or recovery operation [IR12.8 to IR12.16]
MC3. The need for the proposed facility [IR12.17 to IR12.35]
MC4. The effect of the proposed development on the character and appearance of the surrounding area with particular regard to the North Pennines Area of Outstanding Natural Beauty...
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