R (Whitley Parish Council) v North Yorkshire County Council

The Court of Appeal dismissed the challenge to the county council’s grant of planning permission. The central legal issues were whether the planning officer’s report unlawfully fettered the committee’s discretion by advising that criterion (a) of Policy 7/3 (the requirement to demonstrate the “Best Practicable Environmental Option”) of the North Yorkshire Waste Local Plan could be given no weight, and whether the council failed to consider alternatives. The court held that the officer was providing planning advice based on professional judgment about the weight to be given to a saved development plan policy in light of changed national policy, which the committee was entitled to accept or reject. The officer’s advice was not a statement of law, did not unlawfully bind the committee, and was not misleading. Because the officer rationally advised that criterion (a) could be given no weight, there was no requirement in the circumstances for the authority to undertake a wider exercise of identifying and evaluating alternative sites or proposals. The appeal was therefore dismissed.

The appellant, Whitley Parish Council, sought judicial review of North Yorkshire County Council’s decision to grant planning permission to EP UK Investments Limited for phased extraction and export of pulverised fuel ash (PFA) from Gale Common and associated works. The permission affected land within the Green Belt and proposed long-term HGV movements. Permission to appeal to the Court of Appeal was granted from Mr Justice Lane’s dismissal of the judicial review claim ([2022] EWHC 238 (Admin)).

Nature of the application:

• Claim for judicial review of the decision to grant planning permission, challenging the lawfulness of the officer’s advice on the weight to be given to Policy 7/3(a) (the Best Practicable Environmental Option) and an alleged failure to consider alternatives.

Issues framed by the court:

• Whether the planning officer’s report unlawfully fettered the committee’s discretion by advising that no weight could be given to criterion (a) of Policy 7/3 of the North Yorkshire Waste Local Plan (2006), because later national waste policy (National Planning Policy for Waste 2014) did not refer to the Best Practicable Environmental Option.
• Whether the authority unlawfully failed to consider alternatives to the proposed development.
• If an error of law was established, whether relief should be refused under section 31(2A) of the Senior Courts Act 1981 as it was highly likely the outcome would not have been substantially different.

Court’s reasoning:

• The court reviewed established principles: the primacy of the development plan under section 38(6) of the Planning and Compulsory Purchase Act 2004, that weight is for the decision-maker as a matter of planning judgment, and that a decision-maker lawfully may give a material consideration no weight if rational grounds exist.
• The officer’s report repeatedly reminded the committee of its statutory duty and specifically identified Policy 7/3. The report explained that the concept of the Best Practicable Environmental Option was no longer part of national waste policy and, on that basis, the officer advised that criterion (a) "can be given no weight" while criterion (b) could be given moderate weight. That wording was an expression of professional planning judgment, not a legal prohibition on the committee’s consideration. The advice was intelligible, rational and not misleading when read in context.
• Because the officer lawfully advised, on planning grounds, that criterion (a) should carry no weight, there was no requirement in this case for the authority to undertake the exceptional step of identifying and assessing alternative sites or proposals beyond the consideration already undertaken (the environmental statement’s alternatives section and transport alternatives material). The court relied on relevant authorities about when alternatives are required in planning decisions.
• Given those conclusions, consideration of section 31(2A) was unnecessary; in any event it was arguably highly likely the outcome would have been the same.

Disposition: The appeal was dismissed.

Appeal dismissed. The court held that the planning officer’s report comprised permissible professional planning advice on the weight to be attached to a saved development plan policy in light of changed national policy; the advice did not unlawfully fetter the committee’s discretion or misstate the law. Because the officer rationally advised that criterion (a) of Policy 7/3 should carry no weight, there was no legal obligation in the circumstances to undertake further assessment of alternatives. The lower court’s dismissal of the claim for judicial review was upheld.

Appeal from the High Court of Justice, Queen's Bench Division (Planning Court), Lane J, [2022] EWHC 238 (Admin). Permission to appeal granted by Lewison L.J.; appeal heard in the Court of Appeal and dismissed ([2023] EWCA Civ 92).