The Queen (on the application of Isabel Haden) v Shropshire Council
| Jurisdiction | England & Wales |
| Judge | Stuart-Smith J |
| Judgment Date | 14 January 2020 |
| Neutral Citation | [2020] EWHC 33 (Admin) |
| Date | 14 January 2020 |
| Docket Number | Case No: CO/2517/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2020] EWHC 33 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Stuart-Smith
Case No: CO/2517/2019
and
Heather Sargent (instructed by Richard Buxton & Co) for the Claimant
Nina Pindham (instructed by Legal and Democratic Services Department of Shropshire Council) for the Defendant
David Hardy (solicitor advocate) (instructed by JPE Holdings Ltd) for the Interested Party
Hearing dates: 17th and 18th December 2019
Approved Judgment
The Claimant seeks judicial review of the decision of Shropshire Council (“the Council”) dated 17 May 2019 (“the Decision”) to grant the Applicant (which is now the Interested Party in these proceedings) planning permission for a development on land near Shipley, Bridgnorth Road, Shipley, Shropshire (“the Site”). The permission was for:
“The phased extraction of sand and gravel, inclusive of mineral processing, all ancillary works, equipment and associated infrastructure and progressive restoration” (“the Development”).
The Claimant contends that the Decision is unlawful on four grounds:
i) The Council breached reg. 3(4) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011;
ii) The Council failed to satisfy the legal requirements in relation to the statutory development plan;
iii) The Council erred in law in relation to the Green Belt; and
iv) The Council erred in law in relation to air quality / dust.
By Order dated 10 September 2019 Sir Ross Cranston (sitting as a High Court Judge) granted permission on Grounds 1 and 2 but refused permission on Grounds 3 and 4. The Claimant has renewed her application for permission in respect of Grounds 3 and 4.
Factual Background
The Site comprises 44.53ha of agricultural land in the Green Belt. The Development comprises the phased extraction, processing and export from the Site of c. 3.5 million tonnes of saleable sand and gravel aggregate. The total amount excavated will be 4.13mt but this will be reduced by mineral processing. The mineral will be exported from the Site at an average annual rate of about 250,000 tonnes. Mineral production will last for a period of about 14 years, with an initial preparatory period of up to one year and a final restoration period lasting about two years. Initial works will include the formation of screening mounds around the periphery of the Site. The equipment used at the Site will primarily consist of long-arm excavators, backacters, front-loaders, articulated trucks, static wash plant and mobile mineral processing plant; possibly also a conveyor for transporting material across the Site. When operational, the Development is likely to result in an average of about 96 individual HGV movements (48 return movements) per operational day.
Under the proposal, the Site is subdivided with extraction and restoration taking place in phases. After extraction has finished, the Site will be restored progressively to a combination of agricultural land, with nature conservation interest and enhanced habitat diversity including species rich grassland, acid grassland/heath mosaic and woodland. The amount of best and most versatile agricultural land would remain unchanged. No importation of material would be required. The changes effected by the extraction will be very largely reversible. The restoration is to mimic the current lie of the land. Although there will be some permanent change to the landform, it will only be apparent at local level, not least because of peripheral planting and bunding such as is now typical for mineral extraction sites.
The Council received the Interested Party's application for planning permission for the Development (“the Application”) on 1 November 2017. An officer's report to the Council's South Planning Committee (“the Committee”) was prepared, which recommended that planning permission for the Development be granted, subject to the imposition of planning conditions and the completion of a s. 106 agreement.
The Committee considered the Application on 25 September 2018. It resolved that planning permission should be granted, subject to the imposition of planning conditions and the completion of a s. 106 agreement. The s. 106 agreement was completed on 17 May 2019 and planning permission for the Development (“the Permission”) was granted on the same day.
Ground 1: breach of the 2011 Regulations
The Legal Framework
It is common ground that the applicable regulations are The Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (“the 2011 Regulations”).
Regulation 3(4) provides that:
“The relevant planning authority … shall not grant planning permission … pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration … .”
“Environmental information” was defined by reg. 2(1) as meaning:
“the environmental statement, including any further information and any other information, any representations made by any body required by these Regulations to be invited to make representations, and any representations duly made by any other person about the environmental effects of the development”
The “environmental statement” was defined by reg. 2(1) as meaning:
“a statement—
(a) that includes such of the information referred to in Part 1 of Schedule 4 as is reasonably required to assess the environmental effects of the development and which the applicant can, having regard in particular to current knowledge and methods of assessment, reasonably be required to compile, but
(b) that includes at least the information referred to in Part 2 of Schedule 4; …”
Part 1 of Sch. 4 included the following:
“…
3. A description of the aspects of the environment likely to be significantly affected by the development, including, in particular, population, fauna, flora, soil, water, air, climatic factors, material assets, including the architectural and archaeological heritage, landscape and the inter-relationship between the above factors.
4. A description of the likely significant effects of the development on the environment, which should cover the direct effects and any indirect, secondary, cumulative, short, medium and long-term, permanent and temporary, positive and negative effects of the development, resulting from—
(a) the existence of the development;
(b) the use of natural resources;
(c) the emission of pollutants, the creation of nuisances and the elimination of waste,
and the description by the applicant or appellant of the forecasting methods used to assess the effects on the environment.
5. A description of the measures envisaged to prevent, reduce and where possible offset any significant adverse effects on the environment…”
Part 2 of Sch. 4 included the following:
“…
2. A description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects.
The data required to identify and assess the main effects which the development is likely to have on the environment…”
The net result of these provisions is that the Environmental Statement must include the information referred to in Part 2 of Schedule 4 without the “reasonable requirement” qualification which applies to information that falls within Part 1 but not Part 2 of Schedule 4. The second point to note is that paragraphs 3, 4, and 5 of Part 1 are concerned with “significant effects” that are “likely”, while paragraphs 2 and 3 of Part 2 are concerned with “significant adverse affects”, and “main effects” which the development is “likely” to have on the environment.
The Claimants rely upon the decision of Harrison J in R (ex p. Hardy) v Cornwall County Council [2001] Env LR 25. There is little between the parties on the main principle to be derived from Hardy. It is encapsulated at [56] where Harrison J said:
“it is for the relevant planning authority to judge the adequacy of the environmental information, subject of course to review by the courts on the normal Wednesbury principles, but information that is capable of meeting the requirements of Part II of Schedule 4 to the Regulations must be provided and considered by the planning authority before planning permission is granted.”
On the facts of Hardy, the outstanding information related to the protection of roosting or resting bats, which were subject to strict protection under the Habitats Directive. The Council decided that further surveys were required to see whether or not roosting or resting bats were present; but instead of requiring those surveys to be carried out before the issue of permission was determined, it granted permission and made it a condition that the surveys be carried out and appropriate mitigation measures be prepared. With compelling logic, Harrison J said at [61]–[62]:
“61. … The respondent concluded that those surveys should be carried out. They could only have concluded that those surveys should be carried out if they thought that bats or their resting places might, or were likely, to be found in the mine shafts. If their presence were found by the surveys and if it were found that they were likely to be adversely affected by the proposed development, it is, in my view, an inescapable conclusion, having regard to the system of strict protection for these European protected species, that such a finding would constitute a “significant adverse effect” and a “main effect” within the meaning of paragraphs 2 and 3 of Part II of Schedule 4 to the Regulations, with the result that the information required by those two paragraphs would have to be contained in the environmental statement and considered by the...
To continue reading
Request your trial
-
The Queen (on the application of KTT) v Secretary of State for the Home Department
...Ground was granted by Mostyn J on 10 May 2021. It is based on his decision in R (EOG) v Secretary of State for the Home Department [2020] EWHC 33 (Admin) which is currently before the Court of Appeal. Mostyn J therefore stayed Ground 4 pending the determination of that appeal. 6 The key pr......