ProtectBath.org and Victims of Fullers Earth Ltd, R (On the Application Of) v Gazelle Properties Ltd

A planning committee may rely on an officer’s report where the report, read fairly and as a whole, enables members to understand the important issues and material considerations. Judicial review ordinarily arises only where the report’s overall effect significantly misleads the committee about material matters left uncorrected before the decision.

Planning policy must be interpreted as a matter of law, but the weight given to material considerations remains a matter of planning judgment. Safeguarding policies may operate cumulatively where they serve complementary purposes. An allocation for one form of development does not necessarily displace protection for an existing operational use. In assessing Green Belt development, the authority must address the actual harm, including harm to openness, and decide whether very special circumstances clearly outweigh that harm.

The claimants challenged Bath and North East Somerset Council’s decision of 4 August 2014 to grant outline planning permission to Gazelle Properties Ltd for a residual waste facility at Fosseway Environment Park, Englishcombe, Bath.

The site comprised existing developed land used as a non-residual waste facility and adjoining open land. The claimants argued that the development plan allocation for residual waste treatment displaced safeguarding of the existing facility, that alternative siting had not been considered, and that the officer’s report failed to address Green Belt harm and openness. The central issues were the proper construction of the Joint Waste Core Strategy and the adequacy and legality of the officer’s report.

1. The claim was dismissed. None of the five grounds of challenge was made good.
2. An officer’s report must be sufficiently clear and full to enable councillors to understand the important issues and material considerations and decide them within the limits of lawful planning judgment. It must be read fairly as a whole, having regard to its knowledgeable readership. The report in this case was not required to satisfy the strict exegesis appropriate to a statute.
3. The existing non-residual waste facility on the developed land was safeguarded by the first limb of Policy 13 of the Joint Waste Core Strategy. The allocation of the whole site for residual waste development under Policy 5 did not displace that protection. Policy 13’s two limbs were complementary: one protected existing operational waste facilities, while the other protected allocated sites against development unrelated to residual waste treatment.
4. The Strategy contemplated co-location of residual and non-residual waste facilities. It did not require development under the allocation to replace the existing buildings or to use the developed land in preference to the open land. The decision-maker was entitled to consider the proposed development alongside the safeguarded existing use.
5. The officer’s report adequately addressed Green Belt policy, including the inappropriate nature of the development, harm to openness, the lack of alternative sites, the design and layout, landscaping, and the effect on future development. It recognised that some harm to openness would result, but concluded that the impact had been minimised and that very special circumstances clearly outweighed the harm.
6. The Governing Body of Langley Park School for Girls v London Borough of Bromley [2009] EWCA Civ 734 was distinguishable because the existing use here was safeguarded, the whole site had been allocated for development, and alternative layout and future development had been considered.