Leicestershire County Council, R (on the application of) v Secretary of State for Communities and Local Government

In an appeal concerning mineral planning, individually acceptable environmental impacts cannot be treated as cumulatively unacceptable merely because they occur together. The decision-maker must undertake a further proper assessment of the alleged cumulative effect. A mineral planning authority’s value judgment remains an important consideration, particularly where policy creates a presumption against development, but an inspector may depart from it where the authority has given only a concise assertion without reasons. Adequate reasons are required to explain why the authority’s assessment is not accepted and why the policy presumption is rebutted. The further assessment need not be contained in a separate document, but it must identify an intelligible basis for concluding that the combination of impacts creates an unacceptable result.

UK Coal Mining Ltd applied for permission to undertake opencast coal mining at Long Moor, Leicestershire. Leicestershire County Council, acting as mineral planning authority, refused permission on the ground that the cumulative environmental impact was unacceptable. Following an inquiry, the Inspector recommended conditional permission. The Secretary of State accepted that recommendation.

The Council challenged the decision under section 288 of the Town and Country Planning Act 1990. It argued that the Inspector had failed to give proper weight to the Council’s assessment, had misunderstood the requirement for a proper assessment of cumulative impacts under MPS2, and had failed adequately to explain why the presumption against development in MPG3 was rebutted. The central issue was whether the Inspector was entitled to differ from the Council’s cumulative-impact assessment.

1. The claim was dismissed. The Inspector’s recommendation and the Secretary of State’s decision to grant conditional planning permission were not unlawful.
2. MPG3 created a presumption against opencast coal development, subject to the stated environmental-acceptability and local-or-community-benefits tests. The Inspector recognised that presumption and was entitled to conclude that it was outweighed.
3. MPS2 required a two-stage approach to cumulative impact. Relevant impacts had first to be assessed objectively and then subjected to a further proper assessment before impacts acceptable individually could justify refusal in combination. The mere fact that several impacts occurred together was insufficient.
4. The Council’s assessment was a value judgment and was not criticised as negligent or otherwise legally defective. However, it was expressed only as a concise assertion that the combined impacts were unacceptable. It gave no reasons explaining why the combination produced an unacceptable effect.
5. An Inspector was entitled to differ from the Council’s assessment, particularly where the assessment contained no reasons capable of being evaluated. The absence of a separate document did not determine whether the assessment was proper. What mattered was whether there was an intelligible reasoned basis for the cumulative conclusion.
6. The Inspector had considered the individual impacts, the cumulative issue, the Council’s evidence and submissions, and the policy presumption. Her conclusion that there was nothing unusual about the combination of impacts, and that the Council had supplied no reasoned basis preventing her from differing from its view, was adequately reasoned.
7. The court endorsed the importance of reasons in planning decisions, referring to South Buckinghamshire County Council v Porter (No 2) [2004] 1 WLR 1953, Save Britain’s Heritage v Number 1 Poultry Limited [1991] 1 WLR 153 and Dunster Properties Limited v First Secretary of State [2007] EWCA Civ 236. The Council was ordered to pay the Secretary of State’s costs, to be taxed if not agreed.

The judgment records no prior court decision. The challenge was brought directly under section 288 of the Town and Country Planning Act 1990 against the Secretary of State’s decision following the Inspector’s inquiry.