Hartleyburn Parish Council v Secretary of State for Communities and Local Government & Ors

An application under section 288 of the Town and Country Planning Act 1990 is confined to points of law. The court reviews legality, not the planning merits or the weight given to competing considerations. A planning decision must be read as a whole, and reasons need address the principal controversial issues sufficiently to show how the decision was reached. Challenges to planning judgments face a particularly high Wednesbury threshold. Where a development-plan policy is inconsistent with the National Planning Policy Framework, the policy may attract little weight. An alleged policy error will not justify relief without a realistic prospect of substantial prejudice. A coal-mining proposal must be assessed through the balancing exercise required by paragraph 149 of the Framework.

Following a public inquiry, an Inspector allowed an appeal under section 78 of the Town and Country Planning Act 1990 and granted permission, subject to conditions, for opencast coal extraction and restoration at land adjacent to Halton Lea Farm, Northumberland.

Hartleyburn Parish Council challenged the decision under section 288, alleging misinterpretation of local-plan Policy NE15, failure to apply the paragraph 149 balancing exercise in the National Planning Policy Framework, and irrational or inadequately reasoned conclusions concerning lapwings. The procedural-fairness ground was abandoned. The developer applied for summary judgment on the basis that the remaining grounds had no realistic prospect of success.

1. Summary judgment granted. The challenge to the Inspector’s decision was dismissed. An application for summary judgment in a section 288 challenge is unusual but permitted. The relevant question was whether the grounds had any realistic prospect of success.

2. Section 288 provides a remedy on a point of law, corresponding broadly to judicial-review grounds. The court is concerned with the legality of the decision-making process, not the planning merits or the weight assigned to competing considerations. Planning judgment lies primarily with the decision-maker.

3. Policy NE15 was arguably misread in relation to its second limb, because the Inspector’s use of balancing language could suggest that he had not applied the policy’s wording directly. That did not provide a realistic route to success. The Inspector had considered the landscape effects in detail and made a planning judgment that the temporary harm was not unacceptably harmful. If the policy imposed a stricter requirement, it was inconsistent with the Framework and attracted very little weight. Any error was also immaterial under the principles stated by Glidewell LJ in Bolton MBC v SS and Greater Manchester Waste Disposal Authority (1991) 61 P & C R 343.

4. The argument concerning alternative sites under the third limb of Policy NE15 was also unsuccessful. The Inspector had adequately addressed the issue. In any event, the policy’s failure to identify the relevant geographical scope of alternative sites, and its inconsistency with the Framework, meant that any breach carried little weight.

5. The Inspector had performed the balancing exercise required by paragraph 149 of the Framework. His assessment of the benefits and disadvantages of the proposal was a planning judgment. The challenge based on the national need for coal was therefore a disguised merits challenge and had no realistic prospect of overcoming the high threshold for intervention identified in R (Newsmith Stainless Ltd.) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC 74 (Admin).

6. The lapwing challenge likewise failed. The Inspector considered the possible displacement of breeding pairs, the wider population context, mitigation, habitat creation and other benefits. His conclusion that the effects were neither significant nor unacceptable was a planning judgment supported by adequate reasons. The application accordingly succeeded and the Council’s substantive challenge was dismissed.

The judgment itself records that an Inspector appointed by the Secretary of State allowed the developer’s section 78 planning appeal on 7 August 2012. The Parish Council then brought a statutory challenge under section 288 of the Town and Country Planning Act 1990. The High Court granted summary judgment for the developer and dismissed the challenge.