Whitley Parish Council, R (on the application of) v North Yorkshire County Council & Anor

A planning decision-maker may rationally give no weight to an extant development plan policy where later national policy has rendered its underlying approach outdated. The weight remains a matter of planning judgment, subject to review on public law grounds.

An officer’s report must be read fairly, as a whole and in context. The court will intervene only where its effect is significantly to mislead members on a material issue. Clear advice that a policy criterion should receive no weight does not fetter the committee’s discretion merely because it says that no weight “can” be given.

Alternative sites or proposals require direct consideration only in exceptional circumstances, including where their existence and merits are so obviously material that the decision-maker must address them.

Whitley Parish Council challenged North Yorkshire County Council’s grant of planning permission for the extraction and export of pulverised fuel ash from a previously worked and partly restored site in the Green Belt. Lane J dismissed the judicial review claim in [2022] EWHC 238 (Admin).

The parish council contended that the planning officer had unlawfully advised the committee that no weight could be given to the “Best Practicable Environmental Option” criterion in a saved waste local plan policy. It argued that the advice fettered the committee’s planning judgment and led to an unlawful failure to consider alternatives.

The central issues were whether the officer’s report significantly misled the committee about the weight it could give the policy, whether the council was legally required to consider wider alternatives, and, if an error occurred, whether relief had to be refused under section 31(2A) of the Senior Courts Act 1981.

1. Appeal dismissed. The planning officer’s report gave rational planning advice and did not misstate the law or fetter the committee’s discretion. Dingemans and Edis LJJ agreed with the judgment of the Senior President of Tribunals.

2. Although section 38(6) of the Planning and Compulsory Purchase Act 2004 gives priority to the development plan, later national planning policy may outweigh that priority. The weight given to any material consideration is for the planning decision-maker, subject to public law review. That lawful range includes no weight where the conclusion rests on rational planning grounds.

3. The committee had repeatedly been reminded of its statutory duty and knew that Policy 7/3 was an extant and specifically relevant development plan policy. Read fairly and as a whole, the report advised that the “Best Practicable Environmental Option” criterion should receive no weight because that concept had ceased to form part of national waste policy. The language that no weight “can be given”, viewed in context and alongside the expression “it is not considered that”, conveyed the officer’s professional planning judgment. It did not purport to give legal advice or prevent members from exercising their own judgment.

4. A planning committee exercises its own judgment with the assistance of professional advice. An officer recommends rather than decides. A reviewing court must approach the report realistically, with common sense and reasonable benevolence, and must consider its real meaning in context. Intervention is justified only where the report significantly misleads members on a material issue. That threshold was not met.

5. Once criterion a) had rationally and lawfully been given no weight, it imposed no requirement to assess alternative sites or proposals. Neither another development plan policy nor national Green Belt policy imposed such a requirement. Wider alternatives need direct consideration only exceptionally, including where their existence and merits are so obviously material that they demand attention. No identified alternative had that quality. In any event, the environmental statement and officer’s report considered the “do nothing” option, alternative locations and alternative transport methods.

6. Section 31(2A) of the Senior Courts Act 1981 did not arise because no legal error had occurred. It was arguable, though academic, that the decision would highly likely have been the same. A court applying that provision must avoid straying into an assessment of the planning merits.

1. Court of Appeal (Civil Division): In [2023] EWCA Civ 92, the court unanimously dismissed the parish council’s appeal and upheld the conclusion that the officer’s report was lawful.
2. High Court, Planning Court: Lane J dismissed the claim for judicial review in [2022] EWHC 238 (Admin). He held that the officer had permissibly expressed a professional judgment that the policy criterion should receive no weight and that consideration of wider alternatives was unnecessary.