The claimant company applied to the local planning authority for planning permission for a surface mine for the extraction of up to three million tons of coal from land which was to be restored to agricultural and ecological uses after the conclusion of the mining operations. The Secretary of State called in the application for his own determination and, following a public inquiry, the appointed inspector recommended that planning permission be granted since the proposal accorded with national policy and the planning balance, under paragraph 149 of the National Planning Policy Framework (“NPPF”), favoured the development. The Secretary of State accepted most of the inspector’s conclusions, but rejected his recommendation and refused permission in his decision letter because of the very considerable weight he gave to the adverse effects of the emission of greenhouse gases (“GHG”). The claimant challenged that decision under section 288 of Town and Country Planning Act 1990 on the grounds that the Secretary of State (i) had erred in law in his interpretation of paragraph 149 of the NPPF, omitting in consequence a relevant benefit and (ii) had, without giving adequate reasons (a) wrongly concluded that there would be an increase in the emission of GHG and (b) failed to justify departing from a clear line of previous planning decisions. All parties were agreed that paragraph 149 of the NPPF contained a two-stage test and that the first stage was to consider all factors which might be described as “environmental”, whether adverse or beneficial. The Secretary of State, supported by the second and third interested parties, contended that at the second stage it was necessary to consider on the one side only the residual balance of the adverse effects as mitigated, ie the net harm, and, after allowing for environmental benefits, then to balance that net harm against the “national, local or community benefits”, on the other side. The claimant submitted that that approach was irrational where a particular consideration involved both mitigation and an additional benefit going beyond mitigation of the harm and that the Secretary of State had ignored the biodiversity benefits.
On the claimant’s application—
Held, application granted. (1) The residual or netting-off approach was not itself irrational. Whatever might be the relative merits of either approach, neither was unlawful, nor a misinterpretation of paragraph 149 of the NPPF. What mattered was that all the benefits and adverse effects had been taken into account without double counting or discounting. There was a risk, on the residual approach, however, that a benefit might be excluded at stage one, as going beyond mitigation, yet not included at stage two, if the view was taken that “national, local or community benefits” encompassed no environmental benefits. However, the true issue here was not the interpretation of paragraph 149, but the interpretation of the Secretary of State’s decision letter. No issue arose in relation to stage one of paragraph 149, since the harm taken into account outweighed the benefits taken into account at that stage. However, in the decision letter the Secretary of State had brought forward all the harm into stage two and what he had said was simply incompatible with a netting-off approach. He had ignored the biodiversity benefits in his overall conclusions, had failed to carry them forward to the stage two exercise, and had failed to have regard to all the considerations material to that stage. Paragraph 149 did not permit all the harm to be considered at stage two with only part of the benefits. If a residual approach was followed, both benefits and harms had to be netted off to come to a single notional value for a reduced harm then used at stage two. The Secretary of State had not done that and accordingly the decision had to be quashed (paras 24, 35, 41, 48, 66).
(2) The Secretary of State had explicitly accepted all the inspector’s conclusions, reached en route to the latter’s overall conclusion that the benefits of extraction for power generation and employment outweighed the adverse impacts, including the adverse effect of GHG emissions and that there was a need for the coal to meet the United Kingdom’s energy needs. He had also accepted that there would be savings in GHG emissions compared to the burning of imported coal. What he had to explain, on those findings, was how a proposal needed for the country’s energy requirements could be refused on the basis of the adverse impact of GHG, unless the gap was filled by renewables or low carbon sources. Given the significance of the issue, the detailed evidence at the inquiry and those conclusions of the inspector which he had accepted, the decision letter had failed to provide adequate reasoning as to how the Secretary of State had reached his very different decision. The possible different level of emissions was not quantified even in the broadest terms. The Secretary of State had not found how any need left unmet by those possibilities would be sourced, and if by imported coal, how that would affect the overall level of GHG emissions. His reasoning had been wholly unclear and inadequate on a critical issue and he had not dealt with the issues which his reasoning created. That justified genuine concern that significant considerations had been ignored, and that the issues raised and evidence presented for his consideration had not been rationally considered (paras 94, 96, 102, 122).
Nathalie Lieven QC and Flora Robertson (instructed by Eversheds) for the claimant.
David Elvin QC and Richard Moules (instructed by Treasury Solicitor) for the Secretary of State.
Paul Brown QC and Matthew Fraser (instructed by Solicitor, Friends of the Earth Ltd) for Friends of the Earth Ltd, the second interested party.
Estelle Dehon (instructed by Richard Buxton Solicitors, Cambridge) for Save Druridge, the third interested party.
Northumberland County Council, the first interested party, did not appear and was not represented.