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Parish council fails in legal challenge over grant of permission to extract pulverised fuel ash

The High Court has dismissed all six grounds of challenge brought by a parish council over the extraction of pulverised fuel ash.

In Whitley Parish Council, R (On the Application Of) v North Yorkshire County Council [2022] EWHC 238 (Admin) Mr Justice Lane said that even had he been convinced that any of the grounds advanced by Whitley Parish Council were made out against North Yorkshire County Council’s decision, “I am fully satisfied that they could have been addressed by minor changes to the [officer’s report].

“If those changes had been made, I am entirely satisfied that it is highly likely that the result would have been the same. In so saying, I am conscious of the fact that the application was granted only on the casting vote of the chair. Any such changes to the [officer’s report] would not, however, have altered the views of Members, one way or the other.”

Pulverised fuel ash is generated by burning coal in power stations and can be used as a building aggregate. It is classed as a recycled aggregate and can reduce CO2 emissions, as it reduces the amount of clinker used in cement and concrete.

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EP UK Investments won planning permission in April 2021 to extract material from the Gale Common Ash Disposal Site, where it had been deposited since 1963.

The site would be restored after extraction to create the Gale Common Country Park, and lies within Green Belt.

Whitley Parish Council argued that the officers’ report had been wrong to divide up the development proposal into those parts which would be appropriate development in the Green Belt and those that would be inappropriate.

It said a proposed development is not acceptable in Green Belt policy terms merely because part of it is appropriate.

The parish said none of the exceptions for the construction of new buildings in the Green Belt were relevant and the report failed to take “any other harm arising from the proposal” into account.

Other grounds comprised arguments about the relevance of various local plans.

Lane J said: “Although the ‘very special circumstances’ requirement means the overall balance remains loaded against inappropriate development in the Green Belt, it made perfect sense for the [officer’s report] to examine the issue of harm arising from the built element of the proposals, by considering whether - in the light of the buildings etc already on the site (some of which would be demolished) - that element could be said to have ‘a greater impact on the openness of the Green Belt than the existing development’.”

The judge said the decisions on whether ‘very special circumstances’ existed “could only properly be achieved by understanding the overall nature of the harms.

“So far as the built element was concerned, its overall impact fell to be assessed in the light of the existing buildings etc. In short, whether the built development, viewed in its own terms, would be inappropriate development in terms of paragraph 145 of the NPPF, was relevant to the overall assessment of whether the ‘very special circumstances’ test was met.”

Dismissing another ground, that the officer’s report failed to recognise “any other harm” arising from the development could include all harm, including non-Green Belt harm, Lane J said: “The fact that a particular harm is assessed as being capable of amelioration by reason of a planning condition does not in any way mean that the harm in question is being left out of account; quite the opposite.”

He said: “Acceptance of the claimant's challenge under [this] ground would be a departure from the approach to planning officers' reports that has been repeatedly taken by the courts. It would be bound to have a chilling effect upon the way such reports are hereafter prepared, with no commensurate benefit to the elected members who must take the ultimate decisions or to the public interest.”

Mark Smulian

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