Woods, R (on the application of) v Derbyshire County Council

In planning judicial review, the court distinguishes between the legal meaning of policy guidance and the planning judgment entrusted to the local authority. The authority must have regard to the development plan and other material considerations under Town and Country Planning Act 1990, s 70(2), but the court does not re-weigh them. A late representation is not automatically part of the environmental information which the authority must consider. The court decides whether any matter was independently material. Policy words must be given a meaning they are capable of bearing. Intervention is justified where the adopted interpretation is legally impermissible or perverse. MPG 3, paragraphs 60–61, did not impose a separate or more stringent two-stage balancing exercise on the facts and wording here. The renewed application for leave was refused.

Fitzwise Limited sought planning permission for a major opencast coal, land reclamation and road-development scheme near Chesterfield. Derbyshire County Council approved most of the proposals. Mr Woods, a nearby resident, challenged the decision by judicial review, alleging inadequate consideration of late representations, failure to consider material environmental matters, and misinterpretation of national mineral-planning guidance on noise and the weighing of benefits against environmental harm.

Harrison J dismissed the initial application for leave. The Court of Appeal considered the renewed application and the central question whether the Council had failed to take account of material considerations or had applied an erroneous legal interpretation of the relevant planning guidance.

The Court of Appeal, with Brooke LJ giving the leading judgment and Balcombe and Butler-Sloss LJJ agreeing, unanimously refused the renewed application for leave to apply for judicial review.

1. Leave and material considerations. After detailed inter partes argument, the court adopted an approach between requiring a reasonable prospect of success and requiring a strong case likely to succeed. Nothing turned on the distinction. Under Town and Country Planning Act 1990, s 70(2), a local planning authority must have regard to the development plan and other material considerations. A matter is material if it might realistically cause the authority to reach a different conclusion. The court distinguishes matters required by statute from those material because of the nature of the decision and its subject matter.
2. Late representations. A representation was not duly made, for the purposes of the environmental-assessment regime, unless submitted within the prescribed period. Accordingly, Mr Woods’s late representations were not automatically environmental information which the Council was bound to consider. It remained for the court to decide whether any points were independently material, with lateness relevant to the exercise of discretion. On the evidence, the Council had sufficient information and had not arguably failed to consider a material matter.
3. Specific objections. Challenges based on dust and vibration were abandoned or unsupported. Possible alternative public funding for reclamation was too uncertain to require consideration, and the Council was entitled to prefer certain early remediation backed by the developer. The suggested lower noise limit would have made no difference at the locations relevant to Mr Woods.
4. Planning guidance. The meaning legally capable of being borne by policy guidance is for the court. Choosing between legally permissible meanings, and assessing whether a dangerous inconsistency exists, is ordinarily a matter of planning judgment. MPG 3 was guidance, not legislation. Paragraphs 60–61 did not require a separate two-stage test. Greater environmental disbenefit required greater countervailing benefit, but the language of outweighing and overriding did not materially differ in this context. The Council had lawfully balanced the benefits and disbenefits.

The applicant was ordered to pay the Council’s costs, payable by the Legal Aid Board pursuant to section 18. There was no order as to costs for Fitzwise.

1. Court of Appeal (Civil Division): refused the renewed application for leave to apply for judicial review.
2. Divisional Court of the Queen’s Bench Division: Harrison J dismissed the original application for leave after a two-day hearing.