Jenkins v Gloucestershire County Council

In environmental impact assessment cases, substantive information about likely significant environmental effects and proposed mitigation must be available for the statutory publicity and consultation process before planning permission is granted. A decision-maker cannot postpone assessment of such effects to a planning condition. Conditions may address final details where the available mitigation is sufficiently specific and there is no real doubt about its effectiveness. A planning policy allowing development outside preferred areas does not require a county-wide review of every potential alternative site. It requires the non-preferred site to be significantly preferable to any available preferred-area site. Planning authorities must also consider relevant adopted policies, but guidance directed to recreational uses is not necessarily material to a minerals application.

The claimant sought judicial review of Gloucestershire County Council’s decision to grant planning permission for sand and gravel extraction and restoration at Shorncote. The challenge concerned the interpretation of Policy A4 of the Gloucestershire Minerals Local Plan, noise, dust, flooding, environmental information, publicity, reliance on planning conditions and reasons.

The site was outside the Plan’s preferred areas. The environmental statement and later information addressed groundwater, flood risk and proposed drainage measures. The claimant argued that additional information had not been properly publicised and that the Council had unlawfully deferred important environmental matters to conditions.

1. Policy A4. Policy A4 permitted mineral working outside a preferred area where it met the Plan’s objectives and was significantly more acceptable overall than any available site in a preferred area. It did not require a mini-local-plan exercise examining every potential site across the county. The Council’s interpretation was correct.
2. Noise. The Council was entitled in principle to disagree with the district council’s environmental health officer. The minor error in attributing a reference to PPG24 rather than MPS2 was immaterial because the officer’s report accurately summarised the relevant MPS2 guidance. Supplementary planning guidance directed principally to leisure and recreational uses was not a material consideration which the Council was bound to take into account on an application for mineral extraction.
3. Dust. The claimant’s field was agricultural land. The earlier permission for stables did not establish a lawful equestrian use or create a protective cordon around the field. The challenge based on dust failed.
4. Environmental information and publicity. Under the Town and Country Planning (Environmental Impact Assessment) Regulations 1999, the additional drainage information was substantive information relating to the environmental statement. It fell within the publicity requirements of regulation 19(3). The information had not been advertised or made available for the required minimum period of 21 days. The publicity requirements were therefore breached. The principle that the public must have an opportunity to participate in the environmental assessment process was supported by Berkeley v Secretary of State for the Environment [2001] 2 AC 603.
5. Conditions and flooding. A decision-maker cannot defer information needed to identify and assess likely significant environmental effects, or the effectiveness of mitigation, to a condition. However, final details may be left to conditions where the mitigation measures are specific, available and not subject to real doubt about their effectiveness. Applying the principles in Smith and Secretary of State for the Environment [2003] EWCA Civ 262 and R (Hereford Waste Watchers) v Herefordshire County Council [2005] EWHC 191 (Admin), the Council acted lawfully in accepting the Environment Agency’s clear and carefully reasoned advice.
6. Reasons and outcome. The Council’s reasons were adequate. In an environmental impact assessment case, the statutory requirement was satisfied by a summary of the reasons, read with the detailed officer’s report where the committee followed its recommendation. The claim succeeded only on the failure to comply with the publicity requirements. Remedy, costs and any application for permission to appeal were reserved.

First-instance judicial review proceedings. The claim was brought against the Council’s planning decision dated 23 July 2010. The judgment records earlier unsuccessful permission applications concerning related challenges, but no appellate decision in this claim.