Scarisbrick, R (On the Application Of) v Secretary of State for Communities and Local Government

A national policy statement establishing need for a generic type of infrastructure applies to every project within that type. A qualitative assumption of need does not establish a quantitative need for any particular capacity or location.

The assumption is a material consideration favouring a project, but it is not conclusive. Its weight is a matter of planning judgment. The decision-maker must still balance the project's benefits against its adverse impacts, apply site-specific policies and separately satisfy any statutory requirements governing compulsory acquisition and human rights.

The Secretary of State made a development consent order under the Planning Act 2008 for the extension of a hazardous waste landfill in the Green Belt. The order also authorised compulsory acquisition. The Examining Authority had recommended approval after finding that national policy established a need for the project and that its benefits clearly outweighed the identified harm.

A neighbouring landowner sought judicial review. Permission was initially refused in the Planning Court, but Lindblom LJ subsequently granted permission and directed that the claim be heard in the Court of Appeal because of its potential wider importance.

The central issue was whether the Secretary of State had misconstrued or misapplied section 3.1 of the National Policy Statement for Hazardous Waste by assessing the application on the basis that need had been demonstrated.

Claim for judicial review dismissed unanimously.

1. Planning policy is interpreted objectively according to its language read in context. Its interpretation is ultimately for the court. The application of correctly interpreted policy, including the weight given to relevant considerations, is a matter of planning judgment reviewable on public law grounds.

2. Section 3.1 of the National Policy Statement established a general, qualitative need for nationally significant infrastructure within each identified generic type, including hazardous waste landfill. It applied to every project within those types capable of meeting that need. It did not establish a quantitative requirement, prescribe a particular capacity or location, or make the need increase with the scale of a proposal.

3. An applicant could therefore proceed on the basis that national need had been demonstrated. That did not give the applicant a blank cheque or confer an entitlement to consent. The presumption in favour of consent remained only a presumption. The Secretary of State had to balance adverse impacts against benefits and apply all relevant project-specific and site-specific policies.

4. The national need was always material, but its weight was for the Secretary of State's planning judgment. It need not be decisive or even significant in a particular case. The Secretary of State lawfully gave it considerable weight and did not treat it as automatically overriding the Green Belt harm or other objections.

5. The Green Belt policy required substantial weight to be given to harm and consent to be granted only where that harm and any other harm were clearly outweighed by other considerations. The Examining Authority and Secretary of State applied that policy correctly. National need was only one of several considerations supporting the project, alongside regional and local need and the project's particular benefits. Together those considerations established very special circumstances.

6. The requirements governing compulsory acquisition and human rights were also lawfully applied. The conclusion that there was a compelling case in the public interest rested on the overall planning merits, not national need alone. The resulting interference with property and private rights was proportionate and justified.

1. Court of Appeal (Civil Division): The court dismissed the claim for judicial review in [2017] EWCA Civ 787. Lindblom LJ gave the judgment, with which Irwin LJ and the Senior President of Tribunals agreed.
2. Planning Court: Permission to apply for judicial review was initially refused. Lindblom LJ subsequently granted permission on one ground and directed that the claim be heard in the Court of Appeal because of the issue's potential wider importance.