Outdoor education business fails in Court of Appeal challenge to approval of waste recycling centre

Upholding a judgment by Mrs Justice Lieven in the High Court, Lord Justice Dove found Norfolk County Council did not make any unlawful error of fact and nor were planning committee members misled.

Education site operator Hilltop Experiences objected that Norfolk, in its role as a planning authority, had given planning permission to itself in its waste disposal authority role, though it did not claim there was a conflict of interest.

Hilltop argued that Lieven J erred in law when finding Norfolk’s consideration of alternative sites for the HWRC was sufficient in circumstances where it had acknowledged the error of not considering a site named East Beckham Quarry, and that this material error of fact made the committee report underpinning the decision materially misleading.

An HWRC already adjoins Hilltop’s property but it is only some 0.1 hectares and the new one would take around 0.45 hectares.

Dove LJ noted Hilltop argued Norfolk failed to consider East Beckham Quarry as a possible alternative site and that it incorrectly claimed that the quarry owner, Robert Batt, had not engaged with the council when in fact he had.

The judge said: “…it is in my view, highly questionable as to whether or not this was an error in relation to an established fact of the kind which engages the error of law jurisdiction”.

Email correspondence showed various dates were offer to Mr Batt for meetings but no response confirmed any arrangement.

“It is apparent from the chronology that site selection was completed during 2020 and at that time it was reasonable to conclude that Mr Batt had failed to engage by responding to the meeting request and providing a convenient date for discussions to continue,” Dove LJ said.

“I am not therefore satisfied that the suggested error of fact in relation to Mr Batt's engagement amounted to the kind of established factual error which can amount to an error of law. At the time when [Norfolk] had to complete the site selection process, the position in relation to East Beckham Quarry was that there had been an attempt to have meetings and a discussion with Mr Batt but that endeavour died out…”

Dove LJ said even if there were an error of fact it would still not amount to an error of law on the basis it was not material.

He said it was clear from extracts of the officer's report that the recommendation to give consent “was predicated explicitly on the basis that the planning balance had been struck taking account of the fact that there may be a suitable alternative site outside the National Landscape designation [for the NorfolkCoast]”.

Officers concluded the planning advantages of the site adjoining Hilltop “were such that on balance they outweighed the conflict with the development plan and this objection in particular”.

Dove LJ said the officer's report was not significantly misleading on the basis that it did not specifically identify East Beckham Quarry as a potential alternative site.

“The absence of the information about East Beckham Quarry did not lead, in my judgment, to the members being materially misled or to the conclusion that their decision was invalidated by the absence of that material,” he said.

Dove LJ said Lieven J’s substantive conclusions were sound and dismissed the appeal. Lord Justice Miles and Lord Justice Zacaroli both agreed.

Mark Smulian