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

Planning policy allocating indicative waste-treatment capacity should be construed in its full policy context. A capacity figure is not necessarily a mandatory ceiling where the policy’s wider objective is to divert waste from landfill and the proposed development would not prevent facilities being delivered elsewhere.

An environmental impact assessment need not assess a possible combined heat and power connection at the planning stage where the connection is no more than a possibility and its route and affected areas are unknown. Assessment may properly occur when the proposal becomes sufficiently probable and defined to permit a sensible evaluation.

Disagreement with planning officers does not itself amount to unreasonable behaviour for costs purposes. The relevant question is whether the authority lacked reasonable planning grounds for its decision.

Bristol City Council refused planning permission for a resource recovery centre at Avonmouth. The Secretary of State allowed the developer’s planning appeal and awarded the developer its costs.

The Council brought an application under section 288 of the Town and Country Planning Act 1990 and a related judicial review claim. It challenged the construction of the emerging West of England Joint Waste Core Strategy, contending that the proposed capacity conflicted with the spatial strategy. It also sought to add a ground alleging that the environmental impact assessment was inadequate because it did not assess possible combined heat and power connections.

The Council further challenged the costs decision, which treated its failure to follow its officers’ recommendation and planning policy as unreasonable behaviour.

1. Planning policy. The section 288 challenge failed. Policy 5 of the Joint Waste Core Strategy identified indicative capacities and locations, but had to be read with the strategy’s central objective of moving waste up the hierarchy and avoiding landfill. Increasing Avonmouth’s capacity did not prevent the indicative capacities for other zones from being delivered. The Inspector and Secretary of State therefore adopted a legally permissible, and in context sensible, construction of the policy.
2. Environmental impact assessment. The application to amend the claim was immaterial because the proposed ground had no prospect of success. Combined heat and power connections would ordinarily require environmental consideration, but assessment at the planning stage depends on what can reasonably be required. Where a connection is probable and indicative routes have been researched, assessment may be required. Where it remains merely possible, with no identified route or likely users, a sensible assessment cannot yet be made. The approach was consistent with the broad purpose of the Directive identified in Kraajeveld (ECR 1-5403).
3. Costs. The Secretary of State’s clarification did not materially alter the Inspector’s reasoning. The Council’s conduct was not unreasonable merely because members rejected their officers’ advice. The material point was that the Council had failed to justify its planning decision on reasonable planning grounds and had acted contrary to the properly construed policy. Any defect in the wording of the decision could not have affected the outcome.
4. The judicial review claim and the section 288 application were dismissed. Permission to pursue the judicial review ground was granted at the low threshold of arguability, but the claim was dismissed. The Secretary of State received agreed costs of £13,600 and the interested party received £5,000 in respect of the amendment issue.