R Whitley Parish Council v North Yorkshire County Council
| Jurisdiction | England & Wales |
| Judge | Lane J |
| Judgment Date | 09 February 2022 |
| Neutral Citation | [2022] EWHC 238 (Admin) |
| Docket Number | Case No: CO/2023/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 238 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
IN AN APPLICATION FOR JUDICIAL REVIEW
THE HONOURABLE Mr Justice Lane
Case No: CO/2023/2021
and
For the claimant: Mr R. Kimblin QC (instructed by Irwin Mitchell LLP)
For the defendant: Mr A. Parkinson (instructed by Head of Legal Corporate Services, North Yorkshire County Council)
For the interested party: Mr A. Booth QC and Mr N. Westaway (instructed by by Pinsent Masons LLP)
Hearing dates: 9 and 10 December 2021
Venue: Leeds Combined Court Centre
Approved Judgment
A. PULVERISED FUEL ASH
Pulverised Fuel Ash (“PFA”) is the ash generated by the burning of coal in coal-fired power stations. PFA has certain qualities that mean it can be used as a building product, including as an aggregate in the production of cement and concrete. PFA is classed as a sustainable/recycled aggregate in the United Kingdom. It can reduce CO2 emissions, as it reduces the amount of clinker used in cement and concrete; clinker being the stony residue produced by burning coal solely for use by the cement and concrete industry. Using PFA as an aggregate reduces the need for virgin/raw materials, such as limestone, sand and clay, which would otherwise need to be extracted in order to produce cement and concrete.
B. THE SITE AND THE APPLICATION FOR PLANNING PERMISSION
This case concerns the grant of planning permission by the defendant on 29 April 2021 to the interested party (“IP”) to allow the extraction of PFA from the Gale Common Ash Disposal Site, together with associated development. The resolution of the defendant's Planning and Regulatory Function Committee, which led to the grant, was carried on the casting vote of the Committee's chair. The claimant challenges the lawfulness of that grant. The claimant is the Parish Council for the administrative area in which the site is situated.
Planning permission was granted in 1963 for the site to be used for the disposal of ash from Eggborough and Ferrybridge “C” Power Stations. Pipelines transported the ash as a slurry to the site and deposited it directly into lagoons, formed within colliery shale bunds, where the majority of PFA settled and the water was recycled. To provide more capacity, the lagoons were raised in height with more colliery shale, repeating until a particular stage reached its final approved level. Permission was granted in 1988 for the extraction of cenospheres from Stage I on the site, due to the identification of their physical and chemical properties as having economic value. Further permissions were granted in respect of the cenospheres during the 1990s. The depositing of ash at the site ceased, following the closure of Eggborough Power Station in 2018. Stage II has been restored partially to agriculture, with hedges and woodland on the slopes, but is incomplete and unrestored on the top and contains approximately 17 million tonnes of PFA. Stage III ash disposal area is not at final levels and is unrestored, whilst Lagoons C and D are also unrestored.
An EIA scoping opinion was issued on 17 January 2019 regarding increased extraction of PFA from the site.
As well as permitting the extraction and export of PFA, the challenged grant includes the provision of processing plants, extended site loading pad, upgraded site access arrangements and facilities, additional weighbridges and wheel wash facilities, an extended site office and other ancillary development. It also permits highway improvement works, a new site access, car parking and ancillary development in connection with proposals for public access.
On 4 February 2020, Members of the Committee visited the site, observing aspects of it, including the existing Stages I — III, the location of the current built facilities on site including the offices, existing weighbridge, wheel wash and the former Ash Slurry Dewatering Plant site together with the proposed area for the loading of PFA onto HGVs.
An Environmental Statement (“ES”) accompanied the planning application. The ES considered landscape and visual amenity, ecology and nature conservation, traffic and transport, air quality and greenhouse gases, noise and vibration, geology, hydrology and contaminated land and cumulative effects and interactions.
The total quantity of saleable PFA proposed to be extracted is approximately 23 million tonnes. The proposed duration is 25 years. The development is intended to be in seven phases.
The IP will carry out relevant roadworks pursuant to a highways agreement to be agreed with the defendant under the terms of a section 106 agreement, that provides for submission of a programme of works within one year of implementation of the permission or prior to the extraction of 30,000 tonnes of PFA from the site under the permission, whichever is earlier. The IP is also committed to re-examining the potential for alternative means of transporting the material from the site, once the volume of material leaving it reaches 100,000 tonnes per annum.
The IP confirmed that it was committed to fully restoring the site, eventually, so as to create the “Gale Common Country Park”, to which the public would be given full access.
As we shall see, a significant matter is that the site lies wholly within the West Yorkshire Green Belt.
The above description of the site and of the application leading to the grant of permission comes from the report of the Corporate Director — Business and Environmental Services to the Committee. This report (hereafter “OR”), together with its associated plans, runs to 113 pages. Given that the OR is the focus of the claimant's challenge, it is necessary for me to refer to it in some detail.
Before I do so, however, it is convenient to examine relevant provisions of the National Planning Policy Framework (“NPPF”) and of Local Plans.
C. NATIONAL PLANNING POLICY FRAMEWORK
Paragraph 133 of the NPPF states:
“The Government attaches great importance to Green Belts. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the essential characteristics of Green Belts are their openness and they are permanent.”
Paragraph 134 regards the Green Belt as serving five purposes; namely, to check the unrestricted sprawl of large built-up areas; to prevent neighbouring towns merging into one another; to assist in safeguarding countryside from encroachment; to preserve the setting and special character of historic towns; and to assist in urban regeneration by encouraging the recycling of derelict and other urban land.
Paragraph 143 reads as follows:
“143. Inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.”
Paragraph 144 provides:
“144. When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. ‘Very special circumstances’ will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm resulting from the proposal, is clearly outweighed by other considerations.”
Paragraph 145 provides that a local planning authority should regard the construction of new buildings as inappropriate in the Green Belt, subject to certain exceptions there specified. One such exception is described in paragraph (g): limited infilling or the partial or complete redevelopment of previously developed land, whether redundant or in continuing use, which would not have a greater impact on the openness of Green Belt than the existing development.
Paragraph 146 provides that certain other forms of development are also not inappropriate in the Green Belt, provided they preserve its openness and do not conflict with the purposes of including land within it. One such exception is “mineral extraction”.
D. NORTH YORKSHIRE WASTE LOCAL PLAN (ADOPTED 2006)
Policy 7/3 “Re-working of Deposited Waste” provides:
“Proposals to re-work deposited waste will be permitted only where:
a) the proposals represent the Best Practicable Environmental Option; and
b) re-working would achieve material planning benefits that would outweigh any environmental or other planning harm which might result.”
As regards policy 7/3, paragraph 7.17 of the Waste Local Plan states:
“7.17 There may be instances where the re-working of deposited waste is required to resolve pollution problems or where changed economic circumstances support the re-use of deposited waste for example Pulverised Fuel Ash (PFA). In considering applications for the re-working of material there will be a need to balance the desire to encourage re-use of material and the impact that re-working the material will have on the site and the surrounding area. It is therefore necessary to establish that the proposal represents the Best Practicable Environmental Option. Developers will therefore be expected to demonstrate that they have carried out an appraisal of the options having regard to the social, environmental, economic, land use and resource impacts and that the scheme represents the best available option in the context of the policies of the plan.”
E. SELBY CORE STRATEGY LOCAL PLAN (ADOPTED 22 OCTOBER 2013)
Paragraph 4.39 of the Selby District Core Strategy Local Plan notes that the NPPF “stresses the importance of protecting the open character of Green Belt, and that ‘inappropriate’ forms of development will be resisted unless very special circumstances can be demonstrated.”
Policy SP2 (spatial development strategy) provides, inter alia, that development in the countryside will be limited to the replacement or...
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