Report from planning officer in pulverised ash case was not misleading, Court of Appeal rules

A parish council has lost its case in the Court of Appeal over whether North Yorkshire County Council should have given EP UK Investments permission to extract pulverised fuel ash from a previously worked and partly restored site.

Whitley Parish Council argued North Yorkshire was led into error by its planning officer's advice on the weight to be given to a development plan policy on the ‘best practicable environmental option’.

In Whitley Parish Council, R (On the Application Of) v North Yorkshire County Council & Anor [2023] EWCA Civ 92 Sir Keith Lindblom, the Senior President of Tribunals, said the council had had “rational planning advice based on the officer's lawful exercise of planning judgment, nothing more and nothing less”.

Lewison LJ had given permission to appeal on whether the county council failed lawfully to apply a policy in its Waste Local Plan (2006) on only accepting the ‘best practical environmental option’, because advice given in the planning officer's report to committee "fettered the discretion to give the policy whatever weight the decision maker considered appropriate”.

Whitley’s second ground was whether the county council erred in law in failing to consider alternatives to the proposed development.

The site concerned is in the West Yorkshire green belt and was used to dispose of ash from the Eggborough and Ferrybridge C power stations until 2018.

EP UK applied to extract about 23m tonnes of pulverised fuel ash over 25 years for use as a secondary aggregate.

Whitley objected at the time on grounds of detriment to the countryside and green belt, noise and highway issues.

The parish argued at the Court of Appeal that the inconsistency of a development plan policy with subsequent national planning policy does not of itself justify the view that "no weight can be given" to the plan policy, but that was the effect of the advice given by the officer, who therefore misled the members.

Sir Keith said: “I cannot accept that argument. It depends on a misreading of the officer's report. And it does not reflect a true application of relevant principle.

“First, the performance by a planning decision-maker of the statutory obligation in section 38(6) of the 2004 Act, though it entails priority being given to the development plan, may result in national planning policy outweighing that priority.

“Secondly, the weight to be given to any material consideration, including material considerations arising in the development plan itself or in national planning policy, is always for the decision-maker alone to determine as a question of planning judgment, subject only to the court's intervention on public law grounds.

“And thirdly, the weight which may lawfully be given to a material consideration extends, at the bottom of the scale, to ‘no weight at all'. If the decision to give that consideration no weight is based on rational planning grounds, the planning authority is entitled to ignore it.’”

The parish also argued that the officer’s report led to an error of law by the committee as it did not assess alternatives to the ash extraction.

Sir Keith said North Yorkshire did not ignore the possibility of alternative proposals being brought forward to meet the need for pulverised fuel ash as the environmental statement contained a ‘consideration of alternatives’ section.

The planning officer did not present members with a comprehensive assessment of real or hypothetical alternatives to the proposal and “this was not in the circumstances a legal defect in the county council's decision-making”

No alternatives had been referred to in the courts and the argument about them “is wholly lacking in substance”, he said.

Sir Keith said it had been “perfectly rational and lawful” for the officer, and the committee, not to have regard to alternatives to ash extraction.

Lord Justice Dingemans and Lord Justice Edis agreed.

Mark Smulian