Elizabeth Condron v National Assembly for Wales & Anor

Planning decision-makers may address dust and amenity impacts through conditions rather than a fixed buffer zone where the applicable guidance is non-binding and the local circumstances have been assessed rationally.

Late environmental representations must be assessed by balancing their importance and materiality, the opportunity to raise them earlier, and any delay or explanation for it. A planning committee decision is unlawful where a fair-minded and informed observer would conclude that there was a real possibility that a member approached the matter with a closed mind. The appearance of predetermination by one committee member may invalidate the decision where it cannot be shown that an unbiased majority supported it.

The claimant applied under section 288(1) of the Town and Country Planning Act 1990 to challenge the National Assembly for Wales’s grant of planning permission for opencast mining and associated reclamation works at Ffos-y-fran.

She alleged failures concerning buffer zones, a neighbouring landfill site, post-Inquiry environmental information, and apparent bias or predetermination within the Planning Decision Committee. The central issue was whether any of those matters rendered the permission unlawful.

1. The buffer-zone challenge failed. The environmental statement referred to recommended distances but did not itself recommend a particular buffer zone for the site. Department of Environment guidance and Welsh minerals policy were guidance rather than statutory requirements. The Inspector was entitled to prefer site-specific assessment and detailed planning conditions addressing dust, noise and blasting. Minor errors concerning the nearest dwellings and the distance of workings were immaterial.

2. The Assembly’s later resolution seeking legislation concerning a 500-metre buffer zone did not require reconsideration of the permission. Unlike the supervening matter in Bolton Metropolitan BC v Secretary of State for the Environment and Greater Manchester Waste Disposal Authority (1990) 61 P & CR 343, the resolution was unlikely to have made a difference because the committee already had power to impose an appropriate planning condition.

3. The challenge concerning the Trecatti landfill failed. The Inspector knew of the landfill and there was no evidence before him that emissions from it created a cumulative odour or health issue requiring consideration. A later Environment Agency report could not retrospectively establish a failure to consider information unavailable when the Inspector reported.

4. For late environmental representations under regulation 3(2) of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, “duly made” requires a balancing exercise. Relevant considerations include the importance and materiality of the information, whether it could previously have been raised, and the delay and its explanation. The representations concerning an allegedly undisclosed tip and the Newcastle study did not establish a failure to comply with that requirement.

5. The applicable apparent-bias test was whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias, applying Porter v Magill [2002] 2 AC 357 and Georgiou v Enfield LBC [2004] LGR 497. The words attributed to the committee chairman that he was going to follow the Inspector’s Report indicated a closed mind rather than a mere predisposition. The chairman’s role and casting vote increased the concern. Following Bovis Homes Ltd v New Forest District Council [2002] EWHC 483 (Admin), the decision was unsafe where an unbiased majority could not be demonstrated. The permission granted on 11 April 2005 was quashed and the planning question was to be reconsidered.

First-instance application under section 288(1) of the Town and Country Planning Act 1990. The court quashed the National Assembly for Wales’s planning permission dated 11 April 2005 and directed that the question of permission be considered afresh.