Judicial review application of local authority's decision to grant agricultural land in the Green Belt refused
Published: 02 Apr 2020

The claimant applied for judicial review of the defendant local authority's decision to grant planning permission for the development of agricultural land in the Green Belt.

The development involved the phased extraction, processing and export from the site of 3.5 million tonnes of saleable sand and gravel aggregate. An officer's report to the local authority's planning committee recommended that planning permission be granted for the development, subject to the imposition of planning conditions and the completion of an agreement under the Town and Country Planning Act 1990.

The claimant argued that:

  • in failing to require a further hydrological assessment before granting permission, the local authority had breached the Town and Country Planning (Environmental Impact Assessment) Regulations SI 2011/1824, which stated that planning permission would not be granted unless the environmental information had first been taken into consideration;
  • the local authority failed to satisfy legal requirements in relation to the statutory development plan;
  • in relation to the Green Belt, the officer approached the question of "preservation" incorrectly, because he did so on a mistaken understanding that "specific localised impacts" could not result in a failure to preserve openness, and because the report did not include any discussion of whether the proposed screening measures themselves might have a harmful effect on the openness of the Green Belt;
  • the local authority had failed in relation to the development's impact on air quality/dust, in particular, its reliance on national air quality levels was unlawful, and it had failed to impose adequate planning conditions to address the issue of air quality.

The judge concluded it was not necessary for all uncertainty to be resolved to achieve compliance with the requirements of SI 2011/1824. This case fell within the scope of the local authority's entitlement and obligation to exercise a judgement on the adequacy or otherwise of the available information, and it was entitled to conclude that it had adequate information and that significant adverse consequences were not likely. In regards to the statutory development plan, it was confirmed that the officer's report evidently had the relevant policies in mind because it had referred to them expressly and concluded that their requirements were met. It could not reasonably be argued that the local authority's conclusion, having expressly considered the policy provisions on which the claimant relied, was irrational or unreasonable.

When considering the Green Belt, the judge stated that the report had approached the issue or "preservation" correctly. It showed the importance of taking a broader look at the potential impacts of a proposal rather than merely cataloguing and assessing specific impacts that might have a local effect, but were not necessarily material when viewed in the overall context of a development. Also while the report did not expressly question whether the proposed screening measures might themselves have a harmful effect on the openness of the Green Belt, it plainly addresses the question of openness, taking into account the screening measures that were proposed, and concluded that there was no material residual impact or harm to the openness of the site. That was a planning assessment and judgment which the local authority was entitled to reach. There was no material error in the report's approach and it was not reasonably arguable that the committee would have been materially misled by the terms in which it was presented.

On the final argument on air quality/dust, the judge decided the evidence before the committee indicated that levels of air pollution would be significantly below the national objective levels set in legislation. The available information was that those statutory levels were considered to be acceptable in terms of what was scientifically known about the effects of pollutants on health and the environment. The evidence was that the quarrying would not make a material difference to background levels. There was no basis on which the court could speculate that such levels were or might be damaging for two sensitive individuals living in the vicinity, whereas the evidence was that they would not be.

"It is concluded that the interests of the sensitive receptors can be adequately safeguarded given the design of the quarrying proposals and the available planning conditions. This conclusion is supported by the Council's Regulatory Services section and by experience of operation of other sand and gravel sites within Shropshire".

The application for judicial review was refused.