Steetley Woburn Bentonite Ltd. v Secretary of State for the Office of the Deputy Prime Minister & Anor

In a planning challenge, an inspector may take account of evidence that cannot be tested because of commercial confidentiality, although the inability to test it must inform the weight given to it. A decision must be read as a whole and in a common-sense manner. Apparent differences between a finding that the evidence did not establish the absence of alternatives and a later finding that alternatives existed did not make the reasoning irrational where both findings arose from the same assessment. Where the applicant’s case was put principally as one of national need based on the claimed uniqueness of a mineral, the inspector was entitled to treat a separate local-need analysis as artificial, provided the local policy context and relevant local economic considerations were addressed.

The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash the Secretary of State’s decision dismissing its appeal against refusal of planning permission for fuller's earth extraction and site restoration at Wavendon Heath South. The claimant also challenged the Secretary of State’s refusal to confirm related highway stopping-up orders.

The Inspector found unacceptable harm to the local landscape, the Greensand Ridge Area of Great Landscape Value, trees, woodlands and County Wildlife Sites. She found no harm to listed buildings or the Woburn Conservation Area, but concluded that the evidence did not establish a clear and genuine need based on the claimed uniqueness of Woburn Bentonite. The claimant challenged the treatment of confidential evidence and the approach to national and local need.

1. The application was dismissed. The related challenge to the highway orders was also dismissed. The claimant was ordered to pay the first defendant’s costs, summarily assessed at £8,807.25.
2. The Inspector was entitled to have regard to Dr Thompson’s doubts about the claimed uniqueness of Woburn Bentonite, even though the confidential report supporting his evidence could not be produced or tested. That limitation affected the weight to be given to the evidence; it did not require the Inspector to ignore it altogether. The Inspector assessed the doubts against the claimant’s unpersuasive evidence, evidence concerning other systems, and the competitive market for retention and drainage aids.
3. The reference to evidence that could not be properly tested was not an erroneous attribution of responsibility for withholding Dr Thompson’s report. Read realistically, the Inspector’s conclusion concerned the claimant’s own evidence, which had been limited by its reliance on commercial confidentiality. The reason why evidence is not produced may be relevant to the weight it receives.
4. The Inspector’s conclusions were not irrational because she stated at one point that she could not conclude that there were no alternatives, but later concluded that alternatives existed. The findings concerned the claimant’s linked propositions that Woburn Bentonite was unique and that no alternatives were available. The decision, read as a whole, showed a rational conclusion that the evidence did not establish the asserted uniqueness or the absence of alternatives.
5. The Inspector was entitled to reject the proposed distinction between national and local need as artificial on these facts. The claimant’s case was principally based on the mineral’s alleged national importance to the paper-making industry. Once that case failed, the remaining local considerations were the commercial interests of the claimant and CIBA and the effect on the local economy. Those matters had been considered and were entitled to little weight. The Inspector had recognised the local character of the relevant designations and carried out the necessary balancing exercise.

Not stated in the judgment.