Haden, R (On the Application Of) v Shropshire Council

The claimant sought judicial review of Shropshire Council’s decision of 17 May 2019 granting planning permission for phased sand and gravel extraction on Green Belt land. The claimant advanced four grounds: (1) breach of regulation 3(4) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 by failing to take the environmental information into account; (2) failure to have proper regard to the statutory development plan under section 38(6) of the Planning and Compulsory Purchase Act 2004; (3) legal error in the assessment of Green Belt openness under National Planning Policy Framework paragraph 146; and (4) unlawful treatment of air quality and failure to comply with the public sector equality duty under section 149 of the Equality Act 2010 in relation to two vulnerable residents.

The court held that (i) the information before the decision‑maker, including the environmental statement, supplementary hydrogeological reports and the Environment Agency’s responses, was sufficient to enable a rational judgment under the EIA Regulations and that the Council was not Wednesbury unreasonable in concluding that significant adverse hydrological effects were unlikely; (ii) the Council had addressed and had regard to the relevant development plan policies and its approach was not irrational; (iii) the officer’s Green Belt analysis properly addressed the spatial and visual components of openness under NPPF paragraph 146 and there was no material error in concluding the proposal preserved openness; and (iv) the Council properly considered the public sector equality duty and imposed conditions and a section 106 obligation creating an effective monitoring and mitigation regime for dust and air quality, including provision for trigger levels to be specified in an approved monitoring scheme. The claim was dismissed in its entirety.

The claimant applied for judicial review of Shropshire Council’s grant of planning permission for the phased extraction, processing and export of sand and gravel from a 44.53 hectare Green Belt site near Shipley. The development would operate for about 14 years with progressive restoration. The claimant relied on four grounds: alleged failure to comply with the 2011 EIA Regulations (regulation 3(4)); alleged failure to comply with statutory development plan requirements; alleged error in the treatment of Green Belt openness; and alleged error in relation to air quality and breach of the public sector equality duty.

The procedural history included a South Planning Committee resolution to grant permission on 25 September 2018, completion of a section 106 agreement and the grant of permission on 17 May 2019. Permission to seek judicial review had earlier been granted by order of Sir Ross Cranston on 10 September 2019 in respect of Grounds 1 and 2; permission on Grounds 3 and 4 had been refused at that stage. The claim was heard on the merits on 17 and 18 December 2019.

Issues before the court

• Whether the Council breached regulation 3(4) of the EIA Regulations by granting permission without adequate environmental information as required by Schedule 4 (distinguishing information required as of right under Part 2 from information only “reasonably required” under Part 1).
• Whether the Council failed to have proper regard to the statutory development plan (section 38(6)).
• Whether the Council misapplied NPPF paragraph 146 and took an erroneous approach to Green Belt openness and the effect of landscaping/screening.
• Whether the Council breached the public sector equality duty in section 149 of the Equality Act 2010 by relying on national air quality objectives and by failing to impose adequate, enforceable mitigation/trigger mechanisms to protect two disabled residents.

Court’s reasoning (concise):

• Grounds 1 and 2 (EIA and development plan): the court applied established authorities (including R (Hardy) and R (Jones) v Mansfield) and reviewed the environmental statement, the applicant’s supplementary hydrological reports, representations from an objector’s hydrologist and multiple Environment Agency consultation responses. The Environment Agency repeatedly described uncertainty about spring mechanisms and recommended monitoring and possible mitigation but did not object. The officer’s report fairly summarised the evidence and explained why conditions and a s.106 obligation (including a monitoring regime and powers to require mitigation or cessation) addressed residual uncertainty. The decision to grant permission was within the range of reasonable judgment and not Wednesbury unreasonable.
• Ground 3 (Green Belt): the court accepted that the officer correctly identified and applied the spatial and visual elements of openness under NPPF paragraph 146 and relevant authorities (Samuel Smith). The report’s language about specific localised impacts was not a legal error; it was a permissible planning judgment to assess the overall materiality of impacts, including the effect of proposed bunding and planting.
• Ground 4 (air quality and equality duty): the council carried out an equality impact assessment, consulted Regulatory Services who concluded that predicted concentrations would be significantly below national objectives, and secured a set of conditions and a s.106 dust‑monitoring and mitigation regime. Trigger levels were to be defined and approved as part of the required monitoring scheme (condition 9) and the s.106 expressly referred to trigger levels, so the safeguards were effective. The court found that the Council gave due regard to the equality duty and its decision was not irrational.

Outcome: the claimant’s challenge failed and renewed permission to pursue Grounds 3 and 4 was refused; the claim was dismissed.

The claim is dismissed. The court concluded that (i) the Council complied with the EIA Regulations by taking the available environmental information into account and reasonably judging that significant adverse hydrological effects were not likely, (ii) the Council properly had regard to the statutory development plan, (iii) the officer’s appraisal of Green Belt openness under NPPF paragraph 146 involved lawful planning judgments and did not err in law, and (iv) the Council lawfully discharged the public sector equality duty and imposed an adequate regime of conditions and a section 106 obligation to monitor and, if necessary, mitigate dust and air quality impacts.

Permission to apply for judicial review on Grounds 1 and 2 was granted by order of Sir Ross Cranston on 10 September 2019. The planning application was considered by the Council’s South Planning Committee on 25 September 2018, the section 106 agreement was completed on 17 May 2019 and planning permission was granted on 17 May 2019. The present judgment disposes of the substantive judicial review challenge (hearing 17–18 December 2019).