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Areas of Outstanding Natural Beauty and the exceptional circumstances test

The Planning Court has dismissed a challenge to a decision granting planning permission for relocation of works at a nuclear power station within an area of outstanding natural beauty (AONB). Leanne Buckley-Thomson analyses the ruling.

Judgment in the case of Girling v East Suffolk Council [2020] 9 WLUK 348 was delivered on 1 October 2020 and it is certainly one to add to your personal planning case book.

The claimant sought judicial review of the council’s decision to grant planning permission for replacement facilities in respect of what is known as ‘Sizewell B’ power station, part of the Sizewell power stations in Suffolk, in advance of a decision on whether or not to grant development consent for ‘Sizewell C’. The site lies within the Suffolk Coast and Heaths AONB and the Suffolk Heritage Coast. The Sizewell Marshes SSSI lies immediately west and north of the site and within the western boundary lies Coronation Wood. The claimant was secretary and member of ‘Together Against Sizewell C’, a group which held concerns as to the sensitive nature of the environment around Sizewell and the impact of the Sizewell C project.

The claim was advanced on two grounds:

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  1. That the council unlawfully failed to consider the need for, and alternatives to, the proposal for the purposes of paragraph 172 of the NPPF in addressing whether there were exceptional circumstances to justify development.
  2. The council failed to reach a lawful conclusion that the environmental information was “up to date” contrary to regulation 26 of the Town and Country Planning (Environmental Impact Assessment) Regulations 2017.

Exceptional Circumstances Test

It is well-known that paragraph 172 of the NPPF comprises the key policy for the protection of the AONB and includes that planning permission should be refused for major development other than in exceptional circumstances and where it can be demonstrated that the development is in the public interest. Consideration of such applications should include an assessment of:

  1. the need for development, including in terms of any national considerations, and the impact of permitting it, or refusing it, upon the local economy;
  2. the cost of, and scope for, developing outside the designated area, or meeting the need for it in some other way; and
  3. any detrimental effect on the environment, the landscape and recreational opportunities, and the extent to which that could be moderated.

When applying the exceptional circumstances test in this case, the officer's report relied upon a reduction in delay to the completion of the Sizewell C project as the need for the advance works. It was common ground that no estimate of the amount of time that would be saved was either supplied by the developer to the council or was estimated by the council.  The claimant contended that it was legally insufficient for the council merely to have proceeded on the basis that some time would be saved, without having an assessment of how much that would be, and that without that information they could not rationally decide how much weight to give to this highly specific form of need so as to see whether the claimed benefits of the proposal outweighed any harm to the AONB identified. The council submitted that their decision was based upon a qualitative appreciation of the time saving as opposed to a quantitative assessment and that as they had concluded that there would be no material adverse impact upon the AONB, there was no legal requirement for any assessment of the time savings to be made so that the exceptional circumstances test could be lawfully applied. A quantitative assessment was not an obviously material consideration rendering the council’s decision irrational in its absence.

Mr. Justice Holgate deals with this ground at paragraphs 29 to 43 of the Judgment and it is worth a read. In particular, at paragraph 30 helpful clarification is provided as to the differences between how the exceptional circumstances test in the context of paragraph 172 of the NPPF (AONB) is to be applied and that in the context of paragraphs 136-137 of the NPPF (Green Belt). In summary:

  • The approach summarised at paragraph 146 of Keep Bourne End Green v Wycombe Council [2020] EWHC 1984 (Admin), dealing with the exceptional circumstances test in respect of Green Belt, can be broadly read across.
  • However, it should be remembered that in development control “inappropriate development” in the Green Belt is treated as being harmful in itself to Green Belt policy by reason of its inappropriateness per paragraph 144 of the NPPF quite apart from any additional harm that would be caused by the impact of the particular proposal on the Green Belt and its purposes in that location.
  • There is no notion of harm simply through development being treated as inappropriate in policy terms under AONB policy.
  • Further, AONB policy explicitly requires consideration of whether the development would be in the public interest and sets out some of the factors which should be addressed, where relevant, in assessing whether or not exceptional circumstances exist.

In the context of this case, Mr. Justice Holgate accepted that the council considered that the overall impact of the proposal would not be materially harmful (paragraph 41), which the council was legally entitled to conclude. Accordingly, it was not accepted that the council acted irrationally by failing to require a quantitative assessment of the time saved for the Sizewell C project. Other factors were accepted by the council to form part of the overall exceptional circumstances case including the urgent national need for new nuclear power generation endorsed in the NPSs, the identification of the Sizewell C site as potentially appropriate for an additional power station, the public interest in reducing the risk of overlapping construction and the lack of suitable sites outside of the AONB.

Regulation 26(2)

Practitioners will be familiar with Regulation 26 and the provision at (2) that the relevant planning authority must not grant planning permission or subsequent consent for EIA development unless satisfied that the reasoned conclusion at paragraph (1)(b) is up to date. A reasoned conclusion if taken to be up to date if in the opinion of the relevant planning authority it addresses the significant effects of the proposed development on the environment that are likely to arise as a result of it.

It was the claimant’s position that parts of the ecological survey work were not up to date such that regulation 26(2) was not satisfied. The council was accordingly prohibited from granting planning permission. This position relied upon the suggestion that the council’s ecologist – and thus its committee acting in agreement – concluded that survey information on breeding birds was out of date. It was agreed that the argument depended upon whether or not the officer’s report to committee could be read as stating that the council’s ecologist disagreed with the developer’s team.

In response, the council contended that regulation 26(2) does not deal with the up-to-datedness of the environmental information but rather the council’s “reasoned conclusion”. Further, whether or not surveys were sufficiently reliable considering the date of their conclusion was a separate issue involving a matter of judgement.

Mr. Holgate’s consideration of the issue can be found at paragraphs 55 to 62 of the decision and provides helpful comment as to the effect of regulation 26(2). In summary (see paragraph 56):

  • It is plain that regulation 26(2) is dealing with whether the competent authority is satisfied that its "reasoned conclusion" under regulation 26(1)(b) on the significant environmental effects of the proposal was up to date: paragraph
  • The legislation does not make the validity of the development consent depend on a formal conclusion by the authority that all the environmental information is up to date.

In the context of this case, it was impossible to read the officer's report as indicating that the local authority was not satisfied that its "reasoned conclusion" under regulation 26(1)(b) was up to date, whether in relation to the whole or any part of the environmental information: see paragraph 57. Furthermore, the issue of whether the survey information on breeding birds was "up to date", taking into account more recent habitat surveys, was a matter of judgement for the local authority going to the quality of that information such that it could only be challenged if that judgement was irrational: see paragraph 58.

Conclusion

I certainly recommend that this Judgment is added to your respective piles of bedtime reading. AONB and Green Belt are different beasts and that there are exceptional circumstances tests in the context of paragraph 172 and paragraphs 136-137 of the NPPF does not mean that the differences between them should be ignored. The clarification given to the effects of application of regulation 26(2) and how wide its net is cast are welcomed.

Leanne Buckley-Thomson is a barrister at No5.

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