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

A planning authority may grant permission where it has sufficient environmental information to make a rational judgment that significant adverse effects are not likely. It need not resolve every uncertainty, but information capable of meeting Part 2 of Schedule 4 to the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 must be provided and considered.

Mineral extraction is not inappropriate development in the Green Belt if openness is preserved. Openness has spatial and visual dimensions. A public authority must rigorously consider the public sector equality duty, but the court does not reassess the weight given to equality considerations where the decision is otherwise lawful.

The claimant sought judicial review of Shropshire Council’s decision to grant planning permission for phased sand and gravel extraction, processing and restoration near Shipley. The challenge alleged breaches of the environmental impact assessment regime, failure to have regard to the statutory development plan, error in applying Green Belt policy, and breach of the public sector equality duty concerning air quality and two disabled residents.

Permission was granted on Grounds 1 and 2 and refused on Grounds 3 and 4. The claimant renewed the application on the latter grounds. The issues were whether the Council had sufficient environmental information, properly considered the development plan, correctly assessed Green Belt openness, and complied with the equality duty.

1. Environmental information. The challenge under regulation 3(4) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 failed. The Council was entitled to conclude that it had adequate information and that significant adverse effects on the water environment were not likely. The Environment Agency identified uncertainty and recommended further monitoring, but did not say that significant adverse effects were likely or object to the proposal.
2. The adequacy of information and the likelihood of significant effects involved planning judgment subject to Wednesbury review. All uncertainty did not have to be resolved. Conditions could address residual risk, but could not substitute for the environmental impact assessment process.
3. Development plan. The Council had regard to the statutory development plan under section 38(6) of the Planning and Compulsory Purchase Act 2004. The relevant policies were expressly considered and the conclusion that their requirements were met was not irrational.
4. Green Belt. The officer’s report correctly treated openness as having spatial and visual components. It was permissible to assess the proposal in its wider context rather than merely catalogue localised effects. The Council was entitled to conclude that temporary extraction, progressive restoration, bunding, planting and site design would preserve openness.
5. Equality duty and air quality. Under section 149 of the Equality Act 2010, the Council had to have due regard to disability-related disadvantages and different needs. It had to be properly informed and conduct a rigorous and conscientious consideration, but did not have to achieve a particular outcome. The evidence supported the conclusion that air-quality levels would remain substantially below national objectives and that the quarry would not materially alter background levels.
6. The monitoring and mitigation conditions, read with the section 106 agreement, were sufficiently certain and effective. The claim and renewed applications failed.

On 10 September 2019 Sir Ross Cranston granted permission on Grounds 1 and 2 and refused permission on Grounds 3 and 4. The renewed applications on Grounds 3 and 4 were refused by the High Court, and the judicial review claim failed.