Samuel Smith Old Brewery (Tadcaster) (an Unlimited Company) and Another v North Yorkshire County Council Darrington Quarries Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 07 March 2017 |
| Neutral Citation | [2017] EWHC 442 (Admin) |
| Docket Number | Case No CO/5517/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 March 2017 |
[2017] EWHC 442 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT IN LEEDS
Leeds Combined Court,
1 Oxford Row, Leeds LS1 3BG
Mr Justice Hickinbottom
Case No CO/5517/2016
The Queen on the application of
and
Peter Village QC and Ned Helme (instructed by Pinsent Masons LLP) for the Claimants
Nathalie Lieven QC and Hannah Gibbs (instructed by Legal and Democratic Services, North Yorkshire County Council) for the Defendant
Jonathan Easton (instructed by Walker Morris LLP) for the Interested Party
Hearing date: 17 February 2017
Approved Judgment
Introduction
The First Claimant is a long-established brewery, with its head office in Tadcaster, North Yorkshire; and the Second Claimant is a member of the same group of companies.
Both companies own farmland in the vicinity of Jackdaw Crag Quarry, a magnesian limestone quarry extending over 25 hectares, lying to the west of the village of Stutton, about 1.5km to the south west of Tadcaster, in an area of Green Belt as designated by the Selby District Core Strategy Local Plan ("the Local Plan"). It is owned and operated by the Interested Party ("Darrington"). Planning permission for the extraction of limestone from the quarry was first granted in July 1948, and has been renewed from time-to-time, permission eventually being granted to work the quarry until February 2016, which was expected to see its complete depletion. Various restoration obligations were attached.
In October 2009, Darrington applied to the Defendant mineral planning authority ("the Council") for planning permission to extend the operational face of the quarry southwards, to incorporate a 6 hectare area of adjacent Grade 2 agricultural land ("the Application Site"). The proposed extension was about 24% of the existing quarry area. It was proposed that, over a period of seven years, approximately 2m tonnes of limestone be extracted from the existing quarry face in a series of 25m wide and 5m deep strips. Under the proposal, the topsoil would be stripped from the extended area, and used to create screening mounds on the southern and eastern boundaries of the Application Site. The rock would be processed using existing plant on the current quarry site, and exported in the same way as for the current quarry under the existing section 106 agreement using the existing haul road.
The Claimants have a particular interest in the Application Site because it has a major aquifer running beneath it, and it is within a Category 1 Source Protection Zone for groundwater as designated by the Environment Agency. The First Claimant draws water from that aquifer for use in its brewing business. Furthermore, as I have indicated, the Claimants own farmland in the vicinity of the Application Site. Notably, they own Warren House Farm and Cottages, a number of farm dwellings immediately to the south of the Application Site.
Despite the Claimants objecting to the proposed development on various grounds, on 7 January 2013, planning permission was granted. However, following a challenge by the Claimants in this court, that permission was quashed on the basis that the Council accepted that it had acted unlawfully in failing to take into account environmental information as required by regulation 3(2) of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (SI 1999 No 293).
Following submission of an updated environmental statement, the application was reconsidered by the Council's Planning and Regulatory Functions Committee ("the Committee") on 9 February 2016. In the usual way, the Committee had the benefit of an officers' report ("the Officers' Report"). That report concluded that the proposed development was not inappropriate development in the Green Belt; and it recommended that permission be granted. Subject to the completion of a section 106 agreement, the Committee resolved to grant conditional planning permission. Having secured such an agreement, planning permission was duly granted on 22 September 2016.
In this claim, the Claimants seek to challenge that grant, on a single ground, namely that the Officers' Report – and, in their turn, the Committee and the Council – misunderstood, and thus misapplied, the relevant national policy, namely paragraph 90 of the National Planning Policy Framework ("the NPPF"); and consequently erred in concluding that the development was not inappropriate development in the Green Belt. If it had correctly interpreted the policy, it is said that the Council could only have concluded that it was inappropriate development, for which there were no "very special circumstances", a prerequisite for approval of inappropriate development in Green Belt land.
On 5 December 2016, Gilbart J adjourned the application for permission to proceed to be listed in court as a rolled-up hearing. At that hearing before me, Peter Village QC and Ned Helme appeared for the Claimants; Miss Nathalie Lieven QC and Hannah Gibbs for the Council; and Jonathan Easton for Darrington. At the outset, I thank them all for their contribution to the debate.
The Legal Principles
The legal principles relevant to this claim are well-established and uncontroversial. They are as follows.
i) Section 70(2) of the Town and Country Planning Act 1990 ("the 1990 Act") requires that planning authorities, in dealing with an application for planning permission, must have regard to all "material considerations", which include relevant statements of policy. Since March 2012, statements of central government policy have been set out mainly in the NPPF.
ii) Planning policies are not statutory or contractual provisions, and should not be construed as if they were. The correct interpretation of planning policy, including the NPPF, is a matter of law for the court to determine objectively in accordance with the language used, read purposively in its proper context. When construing particular provisions of the NPPF, the context is the NPPF looked at as a whole. Because relevant planning policy is a material consideration, and policy cannot be properly applied if it is misconstrued, where a planning decision-maker fails properly to understand relevant policy, that is an error of law in respect of which the court may intervene, if it is material (see Tesco Stores Limited v Dundee City Council [2012] UKSC 13 at [17]–[21] per Lord Reed JSC, R (Timmins) v Gedling Borough Council [2015] EWCA Civ 10 at [24] per Richards LJ, and Suffolk Coastal District Council v Secretary of State for Communities and Local Government [2016] EWCA Civ 168 especially at [26]–[27] per Lindblom LJ).
iii) Whereas what amounts to a material consideration is a matter of law, the weight to be given to such considerations is a question of planning judgment and is a matter entirely for those to whom the task of planning decision-making has been assigned. An application for judicial review does not provide an open opportunity for a disappointed party to contest the planning merits of a decision. The court will intervene, and will only intervene, on conventional public law grounds, which focus on process (see Newsmith v Secretary of State for the Environment, Transport and the Regions [2001] EWHC 74 (Admin) at [6] per Sullivan J, and Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759 at page 780F-H per Lord Hoffmann).
iv) In relation to process, a local planning authority usually delegates its planning functions to a committee of councillors, who act on the basis of information provided by case officers in the form of a report. Such a report usually also includes a recommendation as to how the application should be dealt with. In the absence of contrary evidence, it is a reasonable inference that, where a recommendation is adopted, members of the planning committee follow the reasoning of the report. The officers' report is therefore often a crucial document. It must not mislead the decision-makers; and it must be sufficiently clear and full to enable councillors to understand the important issues and the material considerations that bear upon them, and decide those issues within the limits of planning judgment that the law allows them (see Oxton Farms and Samuel Smith Old Brewery (Tadcaster) v Selby District Council (18 April 1997) 1997 WL 1106106 per Judge LJ, and R (Lowther) v Durham County Council [2001] EWCA Civ 781 at [97]–[98] per Pill LJ). If an officers' report, as supplemented by any further oral report at the planning committee meeting, is insufficient to enable the planning committee to perform its function, or if it is materially misleading, the decision taken by the committee on the basis of the report may be challengeable.
v) Whilst the officer's report must be sufficient for those purposes, when challenged, such reports are not to be subjected to the same exegesis that might be appropriate for the interpretation of a statute: what is required is a fair reading of the report as a whole, taking into account the fact that it is written for a committee of local councillors who can be taken to be experienced in planning matters and to have considerable local knowledge ( R (Siraj) v Kirklees Metropolitan Borough Council [2010] EWCA Civ 1286 at [19] per Sullivan LJ). Furthermore, the courts have stressed the need for reports to be concise and focused, and the dangers of reports being too long, elaborate or defensive (see R (Morge) v Hampshire County Council [2011] UKSC 2 at [36], per Baroness Hale JSC; and R (Maxwell) v Wiltshire Council [2011] EWHC 1840 (Admin) at [43], per Sales J as he then was).
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