Neutral Citation Number:  EWHC 2172 (Admin)
Case No: CO/1272/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 24 August 2009
MR JUSTICE HICKINBOTTOM
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The Queen on the application of Kimberley Miller
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North Yorkshire County Council
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Richard Harwood and James Burton of Counsel (instructed by Richard Buxton)
for the Claimant
Frances Patterson QC (instructed by North Yorkshire Legal & Democratic Services)
for the Defendant
Jeremy Cahill QC and Richard Kimblin of Counsel (instructed by Eversheds)
for the Interested Party
Hearing dates: 17-19 August 2009
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Mr Justice Hickinbottom:
1. This judgment is divided into the following sections:
Introduction Paragraphs 1-2
Minerals Planning Policy Paragraphs 3-11
The Claimant Paragraph 12
Background to the Claim Paragraphs 13-19
Environmental Impact Assessments:
Relevant Legislative Provisions
Ground 1: Minerals Planning Policy 3/4 Paragraphs 38-86
Ground 2: Setting Paragraphs 87-100
Ground 3: The Bird Management Strategy Paragraphs 101-154
Ground 4: The Environmental Statement Paragraphs 155-163
Conclusion Paragraph 164
2. This is an application to quash a decision by the Defendant mineral planning authority ("the Council") dated 27 November 2008 to grant permission to the Interested Party ("Tarmac") for the extraction of sand and gravel, and restoration, at Ladybridge Farm, Moor Lane, Thornborough. For Tarmac, that permission allows it effectively to extend its quarry at Nosterfield, which is adjacent to Ladybridge Farm.
Minerals Planning Policy
3. This claim concerns the inevitable tension between several strands of public interest to which the extraction of minerals such as sand and gravel gives rise. It is a potential conflict which is recognised in the relevant national planning policy, Minerals Policy Statement 1:
Planning and Minerals ("MPS1"), published by the Department for Communities and Local Government, at paragraph 1:
"Minerals are essential to the nation's prosperity and quality of life, not least in helping to create and develop sustainable communities. It is essential there is an adequate and steady supply of material to provide the infrastructure, buildings and goods that society, industry and economy needs, but that this provision is made in accordance with the principles of sustainable development.... Mineral development is different from other forms of development because minerals can only be worked where they naturally occur. Potential conflicts can therefore arise between the benefits to society that minerals bring and the impacts arising from their extraction and supply. Minerals planning aims to provide a framework for meeting the nation's needs for minerals sustainably, by adopting an integrated policy approach to considering the social, environmental and economic factors of doing so and securing avoidance or appropriate mitigation of environmental impacts where extraction takes place."
4. That theme is picked up in Minerals Policy Statement 2: Controlling and Mitigating the Environmental Effects of Minerals Extraction, at paragraph 2:
"Since minerals can only be worked where they are found, and as this may be environmentally-sensitive or designated landscape areas and/or in close proximity to communities, the need to keep these impacts to an acceptable minimum in the planning and operating of extraction sites is a high priority. Where adverse environmental effects cannot be adequately controlled or mitigated through the design of proposals or the attachment of conditions, planning permission should be refused."
5. An "adequate and steady supply" of minerals is monitored and, so far as possible, ensured by the maintenance of "landbanks", i.e. reserves in respect of which planning permission has been granted. Annex 1 of MPS1 requires mineral planning authorities to maintain a landbank for sand and gravel of at least seven years, and "a landbank below [that level] indicates that additional reserves will need to be permitted if acceptable planning applications are submitted". Requirements for mineral production in each region are established at a national level, and regional requirements are apportioned to identify the production that each planning authority area must contribute to the overall supply. The relevant planning authority for the consideration of minerals applications is the county council (section 1(4) of the Town and Country Planning Act 1990). It is that level of local government authority which has the production requirement imposed upon it, and which is also charged by Parliament to grapple with and decide the complex and difficult issues that often arise from the tension between that requirement and environmental concerns.
6. For the area around Thornborough in North Yorkshire, the relevant mineral planning authority is therefore the Defendant, North Yorkshire County Council ("the Council"). The national planning policy with regard to minerals is implemented by the Council through the North Yorkshire County Council Minerals Local Plan ("the Minerals Local Plan"). Paragraph 3.2.1 of that Plan reiterates that national guidance requires each mineral planning authority to make a contribution to meeting the demand for minerals and Policy 3/1 is as follows:
"The Mineral Planning Authority will endeavour to provide and maintain throughout, and at the end of the Plan period, a stock of permitted aggregate reserves (a landbank) equivalent to at least 7 years production for sand and gravel..."
Although that was not saved as a local policy beyond 27 September 2007, it merely reflected the national policy which continues in effect.
7. Any shortfall between forecast requirements and the existing landbank is addressed in the Minerals Local Plan by the identification of "Preferred Areas" (which are considered to be less constrained in environmental and planning terms) and in "Areas of Search" (which, whilst more constrained, are designed to provide flexibility should sites in Preferred Areas not be found). The relevant site in this case, Ladybridge Farm, is in neither a "Preferred Area" nor an "Area of Search".
8. Generally, new workings outside those areas are not allowed (Minerals Local Plan, paragraph 3.2.8).
"... proposals may arise for borrow pits, or for small-scale extensions to existing workings, which do not fall within Preferred Areas and Areas of Search.... The County Council considers that limited extraction around an existing quarry can be acceptable in principle to avoid either sterilising a resource or re-starting working at a later date after mineral working in the existing quarry has ceased. Such proposals will need to be assessed against the other policies in the Plan. No allowance has been made for small-scale extensions in calculating land requirements in the Plan and they will be regarded as windfall sites for statistical purposes, adding to the stock of minerals in the landbank. Due to the individual nature of mineral workings, it is not appropriate to quantify the term "small-scale", but the County Council will assess proposed extensions, including the deepening of quarries, against the following criteria - mineral quantity, working life, annual production and the geographical extent and scale in relation to the existing quarry areas." (paragraph 3.2.9).
Reflecting that, Policy 3/4 is as follows:
"Outside preferred areas and areas of search, planning permission for aggregate mineral working will normally only be granted for borrow pits and small-scale extensions to existing sites."
9. The reference in the supporting text to it being inappropriate to quantify the term "small-scale" is noteworthy. The Minerals Local Plan was itself the subject of an inquiry, in 1996-7, conducted by an Inspector (Mr G F Self), at which one of the main issues was the definition of "small-scale" extensions (Report of the Inspector, paragraph 2.15). The Inspector concluded (at paragraph 3.22):
"It is not practicable to define "small-scale" extensions in detail. The criteria contained in the supporting text... provide reasonably clear guidance."
10. Therefore, no quantitative criteria were included. In assessing whether an extension is "small-scale", an authority has to consider any proposal in the light of the four matters specified in the supporting text, each of which is (perhaps not surprisingly) quintessentially site specific.
11. For the production period 2001-16, in relation to sand and gravel the contribution from North Yorkshire (an area rich in commercially valuable minerals) was fixed at 2.63m tonnes. They have maintained that production.
However, the North Yorkshire sand and gravel landbank in 2006 was not 7 years, but only about 5 years and falling. It is now just over 4 years.
12. The Nosterfield Quarry stands close to a scheduled ancient monument of national if not international importance, comprising three massive ancient henges linked by a causeway, known as Thornborough Henges. The Claimant, Miss Kimberley Miller, lives in Nosterfield, and is a member of the Friends of Thornborough Henges, a group which has lobbied in relation to quarrying near the henges for some years. Although not formally a representative action, the group openly support the claim.
Background to the Claim
13. Tarmac has been working the Nosterfield Quarry, the largest sand and gravel quarry in North Yorkshire, since 1995, when they were granted the appropriate planning permission by the Council. That permission extended over a site of some 106 hectares, with a mineral reserve of 6.1m tonnes, which has been extracted at an average of 500,000 tonnes per annum. The planning permission allows for operations on the site to continue until October 2010, and by now the majority of the deposits have been worked out and much of the site has been restored in accordance with the permission. Although the site was originally on a drained, dry plain, that restoration has involved filling the workings with water and their consequent conversion to an area of wetland including lakes. .
14. Ladybridge Farm is adjacent to Nosterfield Quarry. There have been a number of planning applications to work the land at that farm as an extension to the existing quarry, which I will need to consider in some detail during the course of this judgment.
15. However, briefly by way of introduction, Tarmac made the first application in 2004 ("the 2004 Application"). That application was for the extraction of 2.2m tonnes of sand and gravel, over an extraction area of 45.7 hectares, at a rate of 500,000 tonnes per year, for a period of 2-4 years. The application was refused by the Council on 21 February 2006.
16. In July 2006, Tarmac submitted a further application in respect of the Ladybridge Farm land, seeking to extract 1.1m tonnes of sand and gravel from a site of 30.9 hectares, again at a rate of 5000,000 tonnes per year ("the 2006 Application"). Planning permission was granted on 19 October 2007 ("the 2007 Permission"). However, the Claimant sought to challenge that decision, and solicitors wrote a pre-action protocol letter on her behalf on 5 December 2007 relying upon nine grounds. The Council conceded three grounds, and on 12 March 2008 submitted to judgment quashing the planning permission on those grounds.
17. Following the submission of further and revised materials by Tarmac, the application was resubmitted to the Council's relevant committee (the Planning and Regulatory Functions Committee, "the Planning Committee") on 26 August 2008, where it was resolved that planning permission would be granted, subject to conditions and an agreement under section 106 of the Town and Country Planning Act 1990. A decision notice to that effect was issued on 21 November 2008 ("the 2008 Permission"). It is that decision the Claimant now seeks to challenge.
18. She does so on four grounds, namely:
(i) Ground 1: The Planning Committee erred in its approach to, and application of, Policy 3/4 of the Minerals Local Plan. In particular, it failed to take into account three material matters. Two of those were its own earlier decisions in relation to (i) the 2004 Application and (ii) an application in 2002 relating to another site (the Ripon City Quarry), in respect of both of which the Planning Committee found the extensions proposed not to be "small-scale". The third matter is the threshold for a quarry set in EC Directive No 85/337 ("the EIA Directive") - 25 hectares - which triggers the obligation for an environmental impact assessment ("EIA") in accordance with that directive. It was also submitted that the Council's decision that the proposed extension fell within the Policy 3/4 was in any event irrational.
(ii) Ground 2: The Planning Committee erred in its approach to assessing the impact of the development on the setting of Thornborough Henges. It was required to consider the setting of that monument in-the-round, but restricted its consideration to the view of the extraction site from the henges.
(iii) Ground 3: The Planning Committee failed to have regard to the Bird Management Strategy documents prepared for 2006 Application, and advice of the County's Principal Ecologist on bird management measures in the context of the restoration scheme. That failure was a breach of the EIA Directive requirements: but in any event those matters were material, and ought to have been referred to, and taken into account by, the Committee.
(iv) Ground 4: The Claimant contends that the failure of the environmental statement to include a Bird Management Strategy was in breach of the EIA provisions, such as to make the statement inadequate and the 2008 permission based upon it unlawful.
19. Initially, only Grounds 1 and 2 were pursued. A rolled-up hearing restricted to those grounds was set down for 11 June 2009. However, at that hearing the Claimant applied to amend to add Grounds 3 and 4. After a full day's contested hearing, Sir Thayne Forbes gave the Claimant permission to amend as sought, and set down a rolled-up hearing in respect of all four grounds which he marked as suitable for vacation business. The urgency derives largely from the fact that the available deposits in the Nosterfield Quarry are more or less worked out and, whilst the future of the extension is uncertain, it is not commercially viable to keep on the entire workforce.
Consequently, quarry workers are at risk of being laid off in the immediate future and, indeed, Tarmac has been forced to release some men already.
Environmental Impact Assessments: Relevant Legislative
20. Before I turn to the individual grounds, it may be helpful if I deal with various aspects of the EIA legislative provisions, which are relied upon by the Claimant in several of those grounds.
21. The EIA Directive requires the environmental impact assessment of identified major development projects. Such an assessment demands not only the compilation of data of a project's environmental effects, but also qualitative judgment on those data, to enable the relevant authority to evaluate those effects and the scope for mitigating them before a decision on the planning application is taken.
22. The provisions of the Directive have been transposed into domestic legislation, at the relevant time by the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (SI 1999 No 293) ("the EIA Regulations"). At that time, those regulations had transposed all provisions relevant to this claim, except Article 6(3) of the Directive: but in any event the doctrine of direct effect applied (Finn-Kelcey v Milton Keynes Council  EWCA Civ 1967).
23. The following features of the regulatory scheme are particularly relevant to this claim.
24. As the recitals to the EIA Directive indicate, the purpose of the EIA provisions is to ensure that:
"... development consent for public and private projects which are likely to have significant effects on the environment should be granted only after prior assessment of the likely significant environmental effects of these projects has been carried out".
I shall return to the concept of "likely significant effects on the environment" shortly.
25. The recitals also say:
"... projects belonging to certain types have significant effects on the environment and these projects must as a rule be subject to systematic assessment"
In other words, certain types of project are, for the purposes of the EIA Directive, assumed to have significant environmental effects: and, in respect of those projects, Article 4(1) makes an EIA mandatory in every case. Those types of project are listed in Annex I to the Directive (reproduced in Schedule 1 to the EIA Regulations), and include, "quarries... where the surface of the site exceeds 25 hectares...". The proposed extension to the Nosterfield Quarry exceeds 25 hectares, and was consequently required to have an EIA. Annex II to the Directive (and Schedule 2 to the Regulations) list types of project in respect of which an EIA is not obligatory irrespective of the particulars of the development, but such an assessment is required if the specific development proposed is likely to have significant environmental effects by reference to criteria set out in Schedule 3 to the Regulations (so-called "Schedule 2 developments").
26. Where an EIA has to be performed, the starting point for the collation of the information is the requirement imposed by Article 5 that the developer supplies information on the project and its likely significant effects on the environment, including mitigating measures, which (by virtue of Article 5(3)):
"... shall include at least
- a description of measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects,
- data required to identify and assess the main effects which the project is likely..."
I shall refer to that as the "Article 5(3) information".
27. A full list of information to be supplied as part of this requirement is found in Annex IV, and it includes:
"3. A description of the aspects of the environment likely to be significantly affected by the proposed project, including, in particular, population, fauna, flora, soil, air, climatic factors, material assets, including the architectural and archaeological heritage, landscape and the inter-relationship between the above factors.
4. A description of the likely significant effects of the proposed project on the environment resulting from:
- the existence of the project,
- the use of natural resources,
- the emission of pollutants, the creation of nuisances and the elimination of waste,
and the description by the developer of the forecasting methods used to assess the effects on the environment.
5. A description of the measures envisaged to prevent, reduce and where possible offset any significant adverse effects on the environment..."
I shall refer to that as "the Annex IV information".
28. Those provisions of the EIA Directive are transposed into domestic legislation by the EIA Regulations, in which the information to be provided by the developer is referred to as "the environmental statement", the scope of which is in similar terms to Article 5 of and Annex IV to the Directive (Schedule 4 to the EIA Regulations). "Environmental statement" is defined in Regulation 2 as:
(a) that includes such of the information referred to in Part I of Schedule 4 [i.e. the Annex IV information] as is reasonably required to assess the environmental effects of the development and which the applicant can, having regard in particular to current knowledge and methods of assessment, reasonably be required to compile, but
(b) that includes at least the information referred to in Part II of Schedule 4 [i.e. the Article 5(3) information].
29. The information required to be provided by the developer is therefore that relating to the development's "likely significant effects" on the environment. That phrase was considered by the Court of Appeal in R (Jones) v Mansfield District Council  EWCA Civ 1408;  Env LR 21 in the context of whether a Schedule 2 development was required to have an EIA because it was likely to have significant effects on the environment.
Dyson LJ (with whom Laws and Carnwath LJJ agreed) said (at ):
"Whether a proposed development is likely to have significant effects on the environment involves an exercise of judgment or opinion. It is not a question of hard fact to which there can only be one possible correct answer in any given case... In my view, that is in itself a sufficient reason for concluding that the role of the court should be limited to one of review on Wednesbury grounds". (emphasis in the original).
Carnwath LJ added (at ):
"...the word "significant' does not lay down a precise legal test. It requires the exercise of judgment, on technical or other planning grounds, and consistency in the exercise of that judgment in different cases. That is a function for which the courts are ill-equipped, but which is well-suited to the familiar role of local planning authorities, under the guidance of the Secretary of State."
30. Although Dyson LJ appears to have considered the phrase "likely to have significant effects on the environment" as a whole, that case focused on the word "substantive". However, "likely" was considered in a different European environmental context (namely EC Directive No 79/407, the "Birds Directive") by Sullivan J in R (Hart District Council) v The Secretary of State for Communities and Local Government  EWHC 1204. There he said (at ):
"To an English lawyer, a need to establish a likelihood imposes a more onerous burden than a need to establish risk. The concept of a ‘standard of proof' is of little if any assistance in environmental cases, but the nearest analogy would be the difference between the balance of probability (more likely than not) and the real risk standards of proof...."
Although concerned with a different directive, that at least confirms and explains that, in a European environmental context, "likely" does not necessarily mean "more probable than not".
31. In the context of the EIA Directive and Regulations, "likely to have significant effects on the environment" is a phrase that has to be construed as a whole: and I respectfully agree with Dyson LJ in Jones that, rather than a hard-edged question of fact, it involves a question of planning judgment and opinion such that, in any set of circumstances, there is a range of valid answers. For a development to be likely to have significant environmental effects, it is certainly not necessary for it to be more likely than not that the development will have particular environmental consequences. For example, if a development has the potential for an environmental catastrophe, before the relevant provisions are brought into play it does not have to be more probable than not that such an event will occur in the future. As well as any inevitable environmental consequences that will flow from a development, the phrase requires consideration of future environmental hazards or risks. That in turn requires consideration of both the chance of an effect occurring, and also the consequences if it were to occur.
32. Not only is such a construction demanded by the context but, as Mr Cahill QC for Tarmac identified, some support for it is found in the criteria set out in Schedule 3 to the EIA Regulations for screening Schedule 2 developments, i.e. for determining whether a development for which an EIA is not obligatory should nevertheless be subject to such an assessment (the issue in Jones, referred to above). Schedule 3 sets out criteria relating to the characteristics and location of the development, and provides (in paragraph 3) that "the potential significant effects of development must be considered in relation to [those criteria], and having regard to" a number of factors, including (in sub-paragraph (d)) "the probability of the impact" on the environment.
"Probability" here can only mean "chance": and therefore the chance of an effect occurring (as well as the consequences if it were to occur) is brought into play. Although I appreciate the word "potential" is included in paragraph 3 of Schedule 3, it would be incongruous and inconsistent if environmental hazards were taken into account for these screening purposes, but not for the information purposes of Article 5 and the relevant transposed provisions in the EIA Regulations.
33. Therefore, in my view, Annex IV to the EIA Directive (and, in its turn, Schedule 4 to the EIA Regulations) requires a developer to include in his environmental statement a description of significant environmental hazards to which the proposed development will give rise. However:
(i) As indicated above (paragraph 28), by virtue of the definition in Regulation 2 of the EIA Regulations, a developer's obligation to provide information in an environmental statement is restricted to that which is "reasonably required to assess environmental effects" and that which he can "reasonably be required to compile" (emphasis added).
(ii) It is for the planning authority to decide whether the information contained within an environmental statement is sufficient to meet the requirements of the EIA Directive and Regulations (R (Blewitt) v Derbyshire County Council  EWHC 2775 (Admin);  Env LR 29, a case to which I shall return in relation to Ground 4). That is a matter of planning judgment for them, subject only to challenge on Wednesbury grounds.
34. Article 6(1) of the EIA Directive requires planning authorities to consult relevant specified authorities on the information supplied. Article 6(2) requires a planning authority to inform the public of various matters at an early stage of the process. Article 6(3) was inserted by way of amendment, by EC Directive No 2003/35. It requires a planning authority to make available to the public:
"(a) any information gathered pursuant to Article 5 [i.e. the environmental statement provided by the developer];
(b) ... the main reports and advice issued to the competent authority... at the time when the public concerned is informed in accordance with paragraph 2 of this Article
(c) ... information other than that referred to in paragraph 2 of this article which is relevant for the decision in accordance with Article 8 and which only becomes available after the time the public concerned was informed in accordance with paragraph 2 of this Article."
The public must be given a proper opportunity to express comments and opinions (Article 6(4))
35. Vitally, by virtue of Article 8:
"The results of consultations and the information gathered pursuant to Articles 5, 6 and 7 must be taken into consideration in the development consent procedure."
Article 7 is not relevant to this claim
36. Article 8 is transposed in Regulation 3(2) of the EIA Regulations, as follows:
"The relevant planning authority... shall not grant planning permission pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration..."
37. For these purposes, "environmental information" has the wide definition given to it by Article 2 of EC Directive No 2003/4, to include any information on:
"the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components...[and]...measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to...as well as measures or activates designed to protect those elements".
It is defined in Regulation 2 of the EIA Regulations as:
"the environmental statement, including any further information and other information [i.e. any other substantive information relating to the environmental statement and provided by the applicant], any representations made by any body required by these Regulations to be invited to make representations, and any representations duly made by any person about the environmental effects of the development."
Ground 1: Minerals Planning Policy 3/4
38. I now turn to deal with the discrete grounds upon which the Claimant relies.
39. As her first ground, the Claimant contends that, in determining that the proposed extension was "a small-scale extension to an existing site" for the purposes of Policy 3/4 of the Minerals Local Plan, the Planning Committee failed to take into account a number of material considerations because they were neither included in the Planning Officer's Report to the Committee ("the POR") nor otherwise brought to the Committee's attention.
40. With regard to the relevant legal background, by virtue of section 38 (6) of the Planning and Compulsory Purchase Act 2004 planning applications are to be determined in accordance with the relevant Development Plan. The Development Plan in relation to this application comprised a number of documents, the material document being the Minerals Local Plan. The Planning Committee was therefore bound to determine the application in accordance with that plan, including Policy 3/4.
41. Of course, the Minerals Local Plan was a policy document drafted by the Council for the guidance of its own Planning Committee (as well as, of course, for the assistance of applicants and others interested in mineral planning applications). In construing Policy 3/4, the Planning Committee was interpreting the Council's own policy. In those circumstances, the courts have indicated that they will pay considerable deference to the interpretation adopted, and will only interfere where that interpretation was perverse (see, e.g., Northavon District Council v The Secretary of State for the Environment  JPL 761 at page 763 per Auld J, and R (Heath & Hampstead Society) v Vlachos  EWCA Civ 193 at  per Carnwath LJ). Such perversity would include giving words a meaning which they were not as a matter of law capable of bearing, or giving the same words in the context of different decisions arbitrarily or logically inconsistent meanings (i.e. that the same words mean "X" in one decision, but "not X" in another), or where the interpretation adopted was inconsistent with the authority's own expressed intentions when adopting the policy (as in R (Adriano) v Surrey County Council  EWHC 2471 (Admin);  Env LR 24). In Cranage Parish Council v The First Secretary of State  P & CR 390 at , Davis J gave helpful guidance as to the limits of interpretation that a planning authority can legitimately adopt, but his observations do not detract from the principles set out in Northavon and Vlachos. They rather apply them.
42. The correct approach has three further important features. First, words in policy documents should not be interpreted with the exegetical scrutiny demanded by the construction of, say, a statute or commercial contract. They are often quite loosely drafted by planners for planners, without the intention of being legally binding documents in the strict sense (see Cranage at ).
Second, it is vitally important that any words are construed in their full context (see Vlachos at ).
Third, it is important to recognise that most planning decisions turn upon the exercise of planning judgment to a unique set of facts and circumstances, rather than any point of law. That is perhaps particularly the case in respect of mineral planning applications in which, uniquely, the planning authority has to take into account production requirements for its area as well as criteria relevant to other types of planning decision. In this field it is particularly important for the planning authorities and courts to recognise their respective roles (see Jones at , quoted above at paragraph 29).
43. Those features lead this court to be cautious when asked to condemn a mineral planning authority's interpretation of its own planning policy as being perverse.
44. This ground also raises the issue of the purpose of PORs. The core criticism of the Claimant is that the material considerations upon which she relies ought to have been brought to the Planning Committee's attention by the Planning Officer in the POR, which they were not.
45. A consideration is "material" if it is relevant to the question whether the application should be granted or refused:
"... that is to say if it is a factor which, when placed in the decision-maker's scales, would tip the balance to some extent, one way or the other. In other words, it must be a factor which has some weight in the decision-making process, although plainly it may not be determinative. The test must, of course, be an objective one in the sense that the choice of material considerations must be a rational one, and the considerations chosen must be rationally related to land use issues." (R (Kides) v South Cambridgeshire District Council  EWCA Civ 1370;  JPL 431).
Therefore, a consideration is "material" if it has some weight in the decision-making process. If it has no weight, it is not material.
46. Relying upon R (Jones) v North Warwickshire Borough Council  EWCA Civ 315, Mr Harwood submitted that the Planning Committee itself, as the decision-maker, must decide whether a consideration is material in that sense. It must decide what it will take into account: as well as, of course, the weight to give anything that it does decide to take into account. It is not for the Council's Officers to decide what is material: and, therefore, if a consideration might be material in the sense I have described, then the POR is bound to inform the Planning Committee of it so that the Committee can decide whether it is material or is not.
47. In my view, that places too great a weight upon Jones. Although Laws LJ said (at ), "... the decision-maker must decide for himself what he will take into account" (emphasis added), the point he was making was that it is for the decision-maker rather than the court to decide what is relevant. Hence, in the next sentence he said, "... his decision as to what he will consider and what he will not is itself only to be reviewed on the conventional Wednesbury principle". He was not expressly dealing with the relationship between the Planning Officer and the Planning Committee.
48. That (together with the issue of appropriate content for PORs more generally) was, however, a matter considered by Sullivan J (as he then was) in R v Mendip District Council ex parte Fabre (2000) 80 P & CR 500. At page 509, he said:
"Whilst [PORs] should not be equated with inspectors' letters, it is well established that, in construing the latter, it has to be remembered that they are addressed to the parties who will be well aware of the issues that have been raised in the appeal. They are thus addressed to a knowledgeable readership and the adequacy of their reasoning must be considered against that background. That approach applies with particular force to a [POR] to a committee. Its purpose is not to decide the issue, but to inform the members of the relevant considerations relating to the application. It is not addressed to the world at large but to council members who, by virtue of that membership, may be expected to have substantial local and background knowledge. There would be no point in a [POR] setting out in great detail background material, for example, in respect of local topography, development planning policies or matters of planning history if the members were only too familiar with that material. Part of a planning officer's expert function in reporting to the committee must be to make an assessment of how much information needs to be included in his or her report in order to avoid burdening a busy committee with excessive and unnecessary details."
49. Therefore, whilst no doubt the Planning Committee does have an obligation to consider what considerations are relevant for the purposes of a planning decision, Sullivan J properly recognised the sifting role of a Planning Officer - and also the expert nature of his function when assessing whether something is capable of being material, in the sense of realistically being capable of having some weight in the respect of the decision to be made. As this application shows, the amount of material produced by the information requirements of the EIA Directive and Regulations can be enormous. The volume of representations (which included nearly 1,000 letters in addition to the responses from 15 statutory and non-statutory consultees) was the subject of particular remark in the POR (paragraph 5.11). Members of the relevant planning committee cannot be expected to read everything produced. To require them to do so would, as suggested by Sullivan J, inevitably cloud rather than clear their judgment. It is the Planning Officer's role to ensure that matters which might realistically bear upon the relevant decision are brought to the attention of the committee, and other matters are not: and the Planning Officer's judgment in that role deserves some respect. That was perhaps the point being made by Judge LJ (as he then was) in Oxton Farms v Selby District Council (CA) (18 April 1997) when he said:
"In my judgment an application for judicial review based on criticisms of the [POR] will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken"
In my respectful judgment, the duty on a Planning Officer goes beyond a duty simply not to mislead the Committee - but rather "includes a positive duty to provide sufficient information and guidance to enable members to reach a decision applying the relevant statutory criteria" (R (Lowther) v Durham County Council  EWCA 781 at  per Pill LJ: see also the formulation of Sullivan J as to the purpose of a POR in Fabre above, namely to "...inform the members of the relevant considerations relating to the application"). However, Judge LJ was certainly (and, in my respectful view, properly) not encouraging to those who contend that deficiencies in a POR led to an unlawful planning decision by the relevant authority.
50. With that introduction, I now turn to the material considerations which the Claimant contends were neither included in the POR, nor as a consequence taken into account by the Planning Committee when considering the 2006 Application at its 26 August 2008 meeting.
Decision on the Ripon City Quarry Application
51. This is the primary plank of this ground (Claimant's Skeleton Argument, paragraph 3(1)).
52. On 11 June 2002, the Planning Committee had before it two applications for mineral planning permission for the extension of existing quarries.
53. The first was in respect of a proposed extension to Kirk Smeaton Limeworks, a long-established site where planning permission was granted in 1948 (presumably under the Town and Country Planning Act 1947) but where work was suspended for many years until 1992. Being under a previous scheme, the permission was without limit as to depth of working. By 2002, three years' reserves remained. The proposal was for a substantial extension in terms of proportionate increase in site area, the POR indicating "about 30%". However, the POR considered the extension "small-scale" because, although the percentage increase in area was substantial, "the net volume of additional reserves and the additional life of the site would be relatively small in relation to the potential life of the site and reserves under the existing planning permission" (paragraph 5.2). In other words, despite the percentage increase in area, it was considered "small-scale" in the light of all of the Policy 3/4 criteria. That was accepted by the Committee, which appears to have granted the application on that basis.
54. The second application related to the Ripon City Quarry, a small quarry near Ripon Racecourse which had been worked since the late 1960s. At the time of the application, the area of extraction was about 50 hectares, the most recent permission being granted in March 2000 for the removal of 280,000 tonnes of material over 3-4 years. The proposal was for an extension of 17.2 hectares (an increase of about 35%), for the extraction of 850,000 tonnes of material over 8½ years.
55. The Committee had to consider whether this proposal for Ripon was for a "small-scale" extension within the terms of Policy 3/4. It had a memorandum from the Council's Head of Legal Services which, having set out the Policy 3/4 specified criteria and something of the recent planning history of the site, continued:
"Can the current proposal be described as small-scale? I think not. An extension of 18 hectares would constitute an increase in the site area of some 35%, that is not, I submit, on any reasonable interpretation of the criteria cited in the local plan ‘small-scale'."
The POR referred to this advice at paragraph 6.2.6:
"The Head of Legal Services was asked to provide advice concerning this application and the relevant policies within the North Yorkshire minerals local plan. He has advised that this current application does not constitute a small-scale extension by virtue of its size in relation to the existing quarry area. The application therefore falls outside Policies 3/2 and 3/3 of the local plan and does not accord with the test set out in Policy 3/4. However, he goes on to advise that there are quite clearly material considerations in this case that could entitle the county planning authority to grant planning permission. The weight given to these considerations and the consequent decision which will be arrived at is a question for members of the [Planning] Committee to determine."
56. In the event, the Committee decided that the extension proposed was not "small-scale" within the parameters of Policy 3/4, but granted permission on the basis of other material considerations.
57. Mr Harwood for the Claimant submitted that the Head of Legal Services' advice was to the effect that any proposed quarry extension that involves an increase of 35% or more could not as a matter of law fall within the parameters of "small-scale extension" for the purposes of Policy 3/4, irrespective of any other considerations required to be taken into account by Policy 3/4 itself. He submitted that the Planning Committee in this case, through the POR, should have had referred to them the decision in the Ripon City Quarry application, and particularly the advice from the Head of Legal Services in relation to that application. That was especially so because those matters were expressly raised the representations made on behalf of the Friends of Thornborough Henges. Furthermore, Mr Harwood submitted that the advice of the Head of Legal Services was correct: and, consequently, no Planning Committee could properly find that the extension proposed in this case (of 32%) fell within those parameters. That was also the primary basis of his contention that the Planning Committee's decision was perverse.
58. I do not find that submission compelling, for the following reasons.
59. First, in my judgment, it is based upon a false premise, namely that the Head of Legal Services' advice was on the general scope of Policy 3/4, namely that, irrespective of other considerations, no extension involving a 35% increase in site area could as a matter of law properly be considered "small-scale" for the purposes of Policy 3/4. In coming to that conclusion, I have taken into account in particular the following.
(i) As the POR notes, "the Head of Legal Services was asked to provide advice concerning this application" (emphasis added). He was responding to a request, not for general advice on the scope of Policy 3/4, but on the application of that policy to the circumstances at the Ripon City Quarry site. He summarises the advice as "this current application does not constitute a small-scale extension by virtue of its size in relation to the existing quarry area" (emphasis added). Although of course the percentage increase in site area was an important factor, his memorandum refers to all four criteria, and there is nothing to suggest that he was purporting to give anything other than advice restricted to the circumstances of Ripon and taking all of those circumstances into account.
(ii) Whilst of course, everything else being equal, the greater the percentage increase in site area the less likely a proposal is to be "small-scale", to set a bar to an extension being small-scale by setting an absolute quantitative limit terms of a percentage increase in site area would (a) be contrary to the supporting text that "it is not appropriate to quantify the term ‘small-scale', and contrary to the Inquiry Inspector's conclusion that it would be impracticable to do so (see paragraph 9 above): and (b) improperly fetter the discretion of the Planning Committee which, by the terms of Policy 3/4, is bound to take into account all of the four specified criteria. Such a hard-edged test as suggested is simply and clearly inappropriate in the terms of Policy 3/4. That makes it less likely that the Head of Legal Services would advise that there was such a test.
(iii) Furthermore, as I have indicated, on the same day the Planning Committee considered the Kirk Smeaton application in which an increase in site area of "about 30%" was not suggested to be determinative of the small-scale question, nor was it suggested in relation to that site that there was any figure for percentage increase in site area that would be decisive. That, at least, is very curious, if the Committee had that day hard advice in general terms that an increase of 35% would be determinative.
Looked at in context, the Head of Legal Services' advice was clearly intended to be (and taken by the Planning Officer in the POR, and hence the Planning Committee to be) specific to the facts and circumstances of the Ripon Quarry site. It was not intended to be, or taken by the Committee to be, of general application
60. Second, for the reasons given above (paragraph 59(ii)), had the advice been given, I do not consider it would have been correct. The Planning Committee would have erred in law if they had approached the issue as being conclusively determined by the fact that the percentage increase in the site area proposed was 35% or more.
61. In any event, third, the percentage increase in this case was not 35%: it was 32%. Mr Harwood suggested that the difference between the two figures was insignificant in this context, but that is not necessarily the case. As I have indicated, in relation to Kirk Smeaton, there was no suggestion that an increase of "about 30%" was, without more, determinative of the issue. Whether 32% is "about 30%" is a semantic issue with which, fortunately, I do not have to deal, given my interpretation of Policy 3/4.
62. Fourth, although the POR did not refer to the Ripon City Quarry decision of 2002 (or the reasons why the Friends considered it material), it did refer in general terms to the ground of objection of the Friends of Thornborough Henges that, "The lack of consistency in judging this application relative to nearby quarrying applications...".
63. Fifth, in relation to the Ripon City Quarry decision itself, that was based upon very different, and clearly distinguishable, facts that appertained to that site. That quarry was a long standing small limeworks quarry in respect of which an extension was sought for triple the deposits to be extracted, with an increase on extraction over 3-4 years of up to an additional 8½ years. The circumstances of that application were very different from those of this application. Of course, a previous decision of a planning authority is capable of being a material consideration in a later application (see, e.g., R (Rank) v East Cambridgeshire District Council  EWHC 2081 (Admin)). However, whilst consistency of decision making is an important tenet of good administration, reference to previous planning decisions in respect of other sites will, in my judgment, rarely be of any value to a decision-maker on the basis of a requirement for such consistency. In North Wiltshire District Council v Secretary of State for the Environment (1991) 65 P & CR 137, where it was contended that a previous decision was a material consideration, Mann LJ said (at page 145)
"To state that like cases should be decided alike presupposes that the earlier case is alike and is not distinguishable in some relevant respect. If it is distinguishable then it will usually lack materiality by reference to consistency, although it may be material in some other way."
64. In the overwhelming majority of applications, the circumstances will be distinguishable: and what may have happened in a different application, concerning a different site, at a different time, in different circumstances will not arguably have any possible weight in the decision-making process. This is precisely such a case. The fact that one element of each application - namely, the percentage increase in site area - may have borne some similarity does not make the applications non-distinguishable. Other circumstances were, clearly, very different, and the applications were distinguishable in a number of relevant respects.
65. Leaving aside the advice from the Head of Legal Services (which was the focus of Mr Harwood's submission, and with which I have dealt above), the 2002 decision in respect of the Ripon City Quarry could not have been material to the decision the Planning Committee had to make in relation to the 2006 Application. In my judgment, the Planning Officer did not err in omitting it or the legal advice from the POR, nor did the Committee err in not taking them into account when making its decision on the application.
66. Mr Harwood conceded that, if the Ripon City Quarry decision had not been relied upon by the Friends of Thornborough Henges in their representations to the Council (notably those of 20 July 2008), there would have been no requirement for the Planning Officer to trawl through previous decisions to see whether any were potentially material. It was, he said, the fact that that decision had been raised that gave rise to the requirement to refer it to the Committee, so that they could decide the question of materiality. Again, I cannot agree. A matter does not become material simply because one set of many representations refers to it and relies upon it. The Planning Officer was perfectly entitled to regard that earlier decision as unarguably immaterial to the decision the Committee had before them to make. Indeed, had the Officer referred to that earlier decision, in my judgment he would have been failing in is duty as outlined by Sullivan J in Fabre (see paragraphs 48-9 above). In preparing a POR, it is part of the Planning Officer's job - "his expert function" - to make an assessment of how much information needs to be included in his or her report in order to avoid burdening the committee with excessive and unnecessary materials. Had the Officer included reference to the Ripon City Quarry decision, it seems to me that he would have had to search for other decisions that bore upon the issue of percentage increase in site area as an important potentially determinative factor, so as not to give the Committee a misleading overall picture. The Kirk Smeaton decision would perhaps have been one. That exercise would have added no value to the decision-making process, but would have unnecessarily added to the workload of both the Officer and Committee. The approach of the Planning Officer and the Committee in relation to the Ripon City Quarry issue was, in my view, correct: and certainly they did not err in law in taking the approach that they did.
67. Indeed, it is the 20 July 2008 representations from the Friends of Thornborough Henges that betray an incorrect approach to the issue of small-scale in Policy 3/4. In respect of the Ripon City Quarry application, they said:
"Quotable precedence was set on 22 May 2002 when the Head of Legal Services advised, in relation to similar application, that "an increase of some 33% is not, on any reasonable interpretation of the criteria cited in the Local Plan, small scale". In whatever way it is calculated, the proposed extension is not small in relation to the current quarry."
68. I have already dealt with the limits of "precedent" in the field of planning decisions, and leave aside the misprint (of 33% rather than 35% as the percentage increase in site area at Ripon). The error in approach is that, in assessing whether an extension is small-scale, an authority is not making a quantitative calculation as these representations suggest: they are making a qualitative planning judgment. That misunderstanding also appears in relation to the sub-ground of Ground 1 concerning the EIA threshold, which I deal with below.
69. For those reasons, I am quite satisfied that neither the advice from the Head of Legal Services in respect of the Ripon City Quarry application in 2002 particularly relied upon by the Claimant, nor that decision itself, were material considerations for the decision on the 2006 Application. The Planning Officer did not err in not including it in the POR: nor did the Committee did not err in not taking it into account.
The 2006 Decision on the 2004 Application
70. Mr Harwood contends that the POR was inadequate because it did not properly and fully set out the Planning Committee's grounds of refusal of the 2004 Application in respect of the same site: and, in particular, it did not stress that the annual removal rate (500,000 tonnes) was the same in the 2004 Application and in the 2006 Application.
71. The 2004 Application was refused on the ground that the extension proposed was not "small-scale". The 2006 Application proposed extension was substantially different. Those revisions were (i) a reduction in extraction area from 45.7 hectares to 30.9 hectares, (ii) a reduction in mineral yield from 2.2 million tonnes to 1.1 million tonnes and (iii) the omission of an area of archaeological interest. The proposed annual extraction rate (500,000 tonnes) remained the same.
72. The POR did refer in terms to the previous refusal (paragraph 1.2), and the particular changes from the previous application to which I have referred (paragraph 2.0). The obvious (and only reasonable) assumption from those references is that the proposed annual yield remained the same. In any event, members of the Planning Committee would have been familiar with the planning history of this application. I am quite satisfied that the Planning Committee were well aware that the annual yield in each of the applications was the same. In the circumstances of this case, the suggestion that they were not so aware is unrealistic.
73. However, in any event, I do not accept that there was any deficiency in the POR in failing expressly to refer to the fact that the annual tonnage proposed in the 2006 application was the same as that in the (refused) 2004 Application. The fact that one element of the application was the same as the earlier application does not mean that the process was flawed because the POR did not specifically refer to or stress that similarity, or that the Committee did not specifically take into account that there existed that element of similarity. The POR, properly, referred to the distinguishing features between the applications.. It also set out the relevant matters in relation to each of the four policy criteria, including (at paragraph 9.14(iii)) the proposed annual extraction rate of 500,000 tonnes. The primary obligation on the Committee was to consider the circumstances of the application as they stood at the time of its decision, and to exercise its judgment on the basis of those circumstances. That it did.
The EIA threshold
74. I have dealt with the relevant provisions of the EIA Directive and Regulations above (see paragraphs 20-38).
75. In respect of the types of developments listed in Schedule 1 to the Directive, an EIA is obligatory because, by their nature, they are assumed "likely to have significant effects on the environment" (Articles 2 and 4). Quarries "where the surface area of the site exceeds 25 hectares" fall into that category (Schedule 1, paragraph 19). The proposed extension in the 2006 Application was in excess of 25 hectares. It is not in issue that, as a consequence, an EIA had to be - and was - performed. That is something to which I shall return.
76. However, in relation to Ground 1, Mr Harwood submitted that:
"It is difficult to see how a project could on the one hand be judged to have significant effects on the environment yet on the other could reasonably be regarded as a small scale extension of anything". (Claimant's Skeleton Argument, paragraph 52)
77. The submission was put in two ways. First, as the skeleton argument suggested, it was submitted that any quarry extension of over 25 hectares could not be, as a matter of law, small-scale. Alternatively, it was submitted that the POR advice on how the EIA threshold was relevant to the issue of small-scale was unclear and confused, resulting in the Planning Committee failing properly to take the threshold into account as a material consideration when deciding whether the extension was small-scale.
78. The EIA threshold is dealt with in paragraph 9.16 of the POR. Having set out the EIA Directive requirements, that paragraph continues:
"Representations submitted in relation to the application suggest that the existence of the 25 hectare threshold figure is relevant to whether the proposal could be reasonably described as a "small-scale extension". The [Council] as Minerals Planning Authority also considers this to be a relevant consideration but not one that is, in itself, determinative of scale. Rather it is one consideration that must be considered in the context of the application. Whereas this is an indication of the significance of this proposal in relation to the criteria set out in the EIA Regulations, assessment of the scale of the proposal in relation to Policy 3/4 must be address the specific criteria set out at paragraph 3.2.9 of the [Minerals Local Plan]."
79. That appears to me to be abundantly clear. The representations of the Friends of Thornborough Henges suggested that the threshold in the EIA Directive may be determinative of the issue of whether an extension is small-scale, because, if a proposed extension was 25 hectares or more, then it could not be small-scale within the terms of Policy 3/4. In paragraph 9.16, the POR rejected that submission. It was right to do so, for the reasons set out above in relation to the suggestion that any percentage increase of over 35% would be determinative. Whilst again, everything else being equal, the larger a proposed extension in absolute terms the less likely it is to be a "small-scale" extension, there are no quantitative trump cards. However, the POR recognises that it is (or could be) a material consideration in assessing whether an extension is small-scale. That appears to me to be unarguably a lawful - and clear - approach.
80. Mr Harwood raised two matters which he suggested showed error. First, paragraph 11.6 of the POR reads as follows:
"Although exceeding the threshold of 25 hectares set out in the EIA Regulations for the requirement of an [environmental statement], that threshold is prescribed for that particular purpose and there is no equivalent threshold under the Development Plan policy."
81. Second, the Defendant's response to the pre-action protocol letter in relation to this point (letter from the Council's Assistant Chief Executive and Solicitor dated 6 January 2009, at paragraph 2) said:
"We are unsure of your allegation here.... You appear to assert that the 25ha EIA threshold is a material consideration when assessing whether a proposed extension is a small-scale one. The [POR] expressly deals with that contention and rejects that view. The Report raises the matter in the light of the representations that were received to the contrary, so as to properly direct Members that when assessing the scale of the extension regard should be had to the criteria found in the supporting text to Policy 3/4. EIA thresholds exist for a different purpose. That is expressly restated at paragraph 11.6 of the [POR]".
82. Mr Harwood accepted that paragraph 9.16 of the POR was clear: and that paragraph 11.6, at face value, did not contradict (or did not necessarily contradict) the clear statement in that earlier paragraph. However, he submitted that the solicitor's response to the pre-action protocol letter showed that in fact the advice on how the EIA threshold should be taken into account in determining whether an extension was "small-scale" was confused. That was his alternative basis for this part of the claim.
83. That argument does not withstand scrutiny. The purpose of the POR was to put the Planning Committee into a position in which it could make a properly informed decision on the application. Policy 3/4 concerned the size of the proposed extension. Without doubt, the size of the proposed extension - in relative and absolute terms - was very clear to the Committee: as were the environmental issues relevant to the application (at least subject to the other environmental issues raised by the Claimant in this claim, which I deal with below). Those issues are the subject of Chapter 4 of the Minerals Local Plan. Together, those were the real issues of substance. The threshold criterion for a mandatory EIA under the EIA Directive as applied to quarries was, as the POR indicated, an indicator of potential environmental impact from the scheme, but no more than that. For the reasons I have given, it was not a threshold criterion for "small-scale". I accept that it may be arguable that it is capable of being a material consideration in respect of the decision on an application for mining planning permission. However, the threshold is based upon a provision that assumes, for EIA purposes, that certain development projects (including quarries of over 25 hectares) are likely to have significant environmental effects. If the threshold is met, that carries no necessary assumption about actual environmental effects. Furthermore, Policy 3/4 does not in itself require any environmental appraisal - that comes in elsewhere in the decision-making process. The purposes of the EIA Directive and Policy 3/4 are therefore very different. I am therefore very doubtful whether the POR would have been deficient if it had not referred to the EIA threshold at all.
84. But it is unnecessary for me to decide that point: because, whatever the Council Solicitor's letter of 6 January 2009 said, the POR did refer to the threshold and in a manner to which the Claimant could not properly take any exception. Paragraph 9.16 is clear, and in my judgment paragraph 11.6 does not derogate from the substance or clarity of that earlier paragraph. Insofar as the Solicitor took the view that paragraph 11.6 indicated something different from that, I consider her letter to be wrong (and, with respect to her, clearly wrong) - although, as I have said, as a matter of interpretation, I consider it at least arguable that, in fact, the EIA threshold per se (as opposed to the size of the site extension, in percentage and absolute terms) is not a material consideration to a decision as to whether a quarry extension if "small-scale".
85. On the basis of a proper interpretation of Policy 3/4 - and my findings that the Committee did not act unlawfully in failing to take into account the three specific matters relied upon by the Claimant - the perversity argument is empty. In fact, the approach of paragraphs 9.11 and following of the POR to the issue of whether the extension proposed is "small-scale" is in my view model. It (properly) discounted any quantitative measure - or "trump card" - as pressed for by the Friends of Thornborough Henges, in favour of taking into account rationally each of the four criteria specified in Policy 3/4 (see, particularly, paragraph 9.14. As the Claimant accepts, those criteria "do not contain a test, merely matters to reach judgment on" (Claimant's Skeleton Argument, paragraph 56). The POR properly reflected the issues, and the evidence, giving a clear appraisal of the relevant criteria. The Committee exercised its collective judgment, and was entitled to conclude that the extension was "small-scale" within Policy 3/4, as it did. It then proceeded, as it should, to consider other matters material to the decision, such as the declining landbank (paragraph 11.9). The POR was supplemented by both the Committee's knowledge of the planning history of the Nosterfield and Ladybridge sites, and presentations at the Committee meeting from the applicant (Tarmac), Council's Officers and, of course, other interested parties including the Friends of Thornborough Henges. That approach was unimpeachable; as is the Committee's decision in relation to the "small-scale" issue.
86. For those reasons, Ground 1 fails.
Ground 2: Setting
87. Whilst not the focus of the main debates before me, the Claimant and other Friends of Thornborough Henges have a particular interest in this ground, as it concerns the henges and their setting.
88. Planning Policy Guidance Note 16: Archaeology and Planning (November 1990) states, in paragraph 18 that:
"The desirability of preserving an ancient monument and its setting is a material consideration in determining planning applications..."
Paragraph 27 continues:
"Where nationally important archaeological remains...and their settings are affected by proposed development they should be a presumption in favour of their physical preservation i.e. a presumption against proposals which would involve significant alteration or cause damage, or would have a significant impact on the setting of the visible remains." (emphasis added)
89. There is no definition of "setting" in this context, but it was common ground before me that it is a matter of judgment to be determined in visual terms, with regard being had to (i) the view from the monument towards the development (ii) the view from the development towards the monument and (iii) any other relevant view which includes both the monument and the development (an approach adopted in Revival Properties Ltd v Secretary of State for the Environment  JPL B86). In other words, the setting of a monument has to be considered "in-the-round".
90. Paragraph 10.14 of the POR said:
"Both English Heritage and the County Council's Heritage Section are satisfied that, in the context of this revised application, the visual setting of the scheduled (and therefore nationally important) Thornborough Henges will not be affected by the proposed development as the area of extraction will not be visible from either of the three henges at ground level."
91. Mr Harwood submitted that the report failed correctly to advise the Planning Committee to consider setting in-the-round - it restricted itself to views from the henges - and the suggestion was that both English Heritage and the Council's own Countryside Service Heritage Section considered there to be no effect "as" (i.e. because and only because) the site would not be visible from the henges at ground level. That, he submitted, would have led the Committee to leave out of account consideration of views from the site to the henges, or of both site and the henges from elsewhere, all of which were material to setting.
92. I am unpersuaded by this ground.
93. First, the extract above from paragraph 10.14 of the POR must be seen in its proper context. Tarmac carried out a comprehensive assessment of setting, the results of which were set out in the June 2008 environmental statement (at paragraphs IV.133 and following). The extensive field work was supplemented by a computer-based exercise, the results of which were set out in the report of Mike Griffiths and Associates Ltd, expert archaeological assessors retained by Tarmac. That assessment did expressly consider, in some detail, (i) views out from the monument towards the site, (ii) views out from the site towards the monument and (iii) views from the side including the monument and site. Those results are summarised in the environmental statement, which concludes (at paragraphs IV.137 and IV.140) that:
"... there will be a negligible impact on the setting of the schedule of ancient monuments on Thornborough Moor... The revised application will therefore not have a significant impact on the setting of the Thornborough Henges or other scheduled monuments and listed buildings in the area".
94. Second, Mr Bob Sydes (of the Council's Heritage Section) also considered that there would be no significant impact. In his memorandum dated 7 December 2006, he indicated that the Friends of Thornborough Henges' objections on setting grounds were misconceived, because they relied upon non-visual matters and setting was a visual concept. He considered there was any adverse impact of the development on the henges' setting was "insufficiently significant or adverse to warrant refusal of permission", and that there were "no archaeological grounds for refusing this application". Setting was also raised with Mr Sydes at the 29 August 2008 Committee Meeting, where he said that, although the impact "can be seen as significant", it was his opinion that it was not significant. His view (that any impact on setting was not significant) accorded with that of English Heritage, a statutory consultee. Mr Stephen Timms (an archaeologist with Mike Griffiths and Associates, who had performed the assessment to which I have referred) was also of the view that there was no significant impact. Therefore, all of the expert evidence was to the effect that the impact of the extension on the setting of the henges was not significant.
95. Third, the Planning Committee members would have had their own knowledge of the area. In addition, at the Committee meeting, they were shown photographs to put the discussion at that meeting in context. At the meeting, the Committee members were told in terms that, "It is almost impossible to see the henges from the quarry or vice versa" (Stephen Timms First Statement, 21 February 2009, paragraph 22). Furthermore, Mr Sydes expressly told the meeting that he agreed with Mr Timms' assessment, which was based upon all relevant views. That advice was given of a full and proper appreciation and interpretation of setting.
96. Of course, lay persons can have an opinion on setting. The Friends contended that the impact of the extension on the setting for the henges was significant, on essentially "non-visual" grounds (see their representations of 20 July 2008, paragraph 2). However, that was an assertion that was misdirected (in that setting is a visual concept) and, perhaps for that reason, unsupported by any professional evidence. Although others had made representations on landscape context (the Council for British Archaeology, the Yorkshire Archaeological Society, Heritage Action, a Senior Lecturer in Archaeology and several individuals), the Claimant does not suggest that any of this amounts to professional evidence as to setting in the relevant sense. Because setting is a visual concept, particular views have to be considered. That is exactly what the professional advice obtained did. In the event, there was no professional advice that the impact on setting would be significant: all such advice was that it would not be significant.
97. There had been an earlier concern, in relation to the refused 2004 Application, that the setting of the henges would be affected: but that concern was alleviated by a restriction on the extent of the site in the 2006 Application. Paragraph 10.14 has to be read in context: in the light of the fact that the Committee would have been aware of that earlier concern.
98. Looked at in full context, paragraph 10.14 was patently adequate, and I am quite satisfied that it did not mislead the Committee into considering setting on a false basis. I am also satisfied that the Committee were aware that they had to - and did - consider setting in-the-round. Indeed, I consider the contrary view to be untenable, when all of the evidence is considered in context.
99. But, in any event, even if, contrary to my firm view, the Committee did not consider the issue on the correct legal test, on the basis of the evidence before it, I am confident that its decision could not sensibly have been different. In relation to setting, at the 26 August 2008 meeting, the Planning Committee had before it all relevant evidence. There was no professional advice that the development would have any significant impact on the setting of the henges. That advice was based upon consideration of all relevant views. It was tested at the Committee meeting. The Friends' representations were wrongly focussed. Even now, the Claimant has not put forward any compelling evidence that setting would be significantly affected by the development: nor any particularised submission to that effect.
100. For those reasons, Ground 2 fails.
Ground 3: The Bird Management Strategy
101. Grounds 3 and 4 both concern the treatment of information about a particular issue which arose at the Ladybridge Farm site, namely the potential for the restored site to encourage birds that might endanger aircraft flying in and out of the RAF Leeming aerodrome which is 8.8km away. The factual background to these grounds is common.
102. Collisions between birds and aircraft ("birdstrike") are uncommon, but, when they do occur, they greatly endanger the aircraft and those travelling in it. Large or flocking birds such as gulls, geese and lapwings present the greatest hazard. The majority of collisions occur within the boundaries of aerodromes, where the risk is managed through habitat management and scaring tactics. Outside aerodrome boundaries, the risk is managed by the imposition of a 13km radius safeguarding zone around each aerodrome. If a planning application is made for a development in that zone which has the potential for increasing the risk of birdstrike, the relevant planning authority must consult bodies responsible for the aerodrome. Given the number of aerodromes, much of the country is covered by safeguarding zones.
103. Where there is a potentially increased risk of birdstrike as the result of a development near an aerodrome being attractive to large or flocking birds, that risk may be managed by "passive" or "active" measures, or a combination of the two. Passive management steps include landscape and habitat design, and habitat management. Active management steps include those which are fatal (e.g. shooting or egg-oiling, which prevents reproduction) or non-fatal (e.g. bird scaring) to the birds. Active management steps tend to be inefficient and relatively expensive if recurring. Therefore, habitat design and management are the key tools, with active bird management steps being used only on a temporary basis as a last-resort if, for example, monitoring suggests that passive steps are inadequate and as a result the habitat design has to be changed.
104. There is a frequent if not inevitable tension between the interests of aerodrome operators (who are committed to managing the risk of birdstrike within safeguarding zones), and local government (which is committed to meeting biodiversity action plan targets for the creation of priority habitats). Whilst at the planning permission stage landscaping and habitat schemes are often dealt with by the imposition of conditions or planning obligations, where the proposed development is within an aerodrome safeguarding zone, it is open to the aerodrome operator to oppose permission if he considers the development will increase the risk of birdstrike or if he is not satisfied that that risk can be satisfactorily dealt with, for example by appropriate conditions or a section 106 agreement. However, the requirement for local planning authorities to consult safeguarding aerodrome authorities over any development that has the potential to increase the risk of birdstrike before granting planning permission enables dialogue to take place aimed at identifying habitat restoration schemes acceptable to the safeguarding authorities. For obvious reasons, such liaison inevitably involves the prospective developer, as well as the planning and aerodrome authorities.
105. As I have indicated, so far as Ladybridge Farm is concerned, it falls within the safeguarding zone of RAF Leeming. The relevant safeguarding authority for that aerodrome is Defence Estates on behalf of the Ministry of Defence. The creation of areas of water (including restored quarrying sites) has a particular potential to attract hazardous birds, and the issue of birdstrike was therefore not new to Tarmac. The Nosterfield Quarry permission required restoration to a water-based scheme, and much of that site has indeed been restored to lakes and other wetland. The issue in respect of the application for permission for the quarry extension was as to the potential increase in the risk of birdstrike as a result of the additional water and wetland features proposed in the restoration of the extension.
106. As part of the 2004 Application, Tarmac produced an environmental statement including a detailed restoration strategy. That did not include any reference to the risk of birdstrike.
107. However, as statutory consultees, Defence Estates responded to the proposals on 5 August 2004, indicating that they maintained no safeguarding objection to the proposal "subject to the amendment of the restoration designs to minimise the attractiveness of the site to bird species hazardous to air traffic and the establishment of a bird management plan to control the numbers of hazardous bird species at the site". Because in part of the inherent uncertainties over a number of relevant variables unless and until the development had been completed - and, in any event, the likelihood of those variables changing over time - a bird management plan or strategy ("BMS") is a common way of addressing birdstrike risk.
108. A dialogue ensued, and by the time the application was considered by the Planning Committee on 21 February 2006, the position (as set out in the POR, at paragraph 6.4) was as follows:
"Defence Estates raise no objection to the proposal in principle subject to the design of the restoration scheme being amended in order to ensure the attractiveness of the site to hazardous birds is minimised, details of planting and the management of grassland being provided and the confirmation that a bird management plan will be incorporated into a section 106 agreement."
109. That accurately identified Defence Estates' concerns as set out in their response of 19 July 2005 to the application. In addition to asking for further information about the proposed restoration grassland areas (relevant to the potential for lapwing flocking), Defence Estates therefore identified a two-stage process towards addressing their concerns about potential increased birdstrike as a result of the quarry extension, namely (i) restoration scheme design changes prior to planning permission being approved (which they considered needed some modification), and (ii) a BMS as part of a section 106 agreement, after that approval. With regard to restoration design, they made particular suggestions (i.e. the depth of water, design of bank sides and as to the size of gaps between roosting sites and the water bank sides). With regard to the proposed section 106 agreement, they also identified some features that they considered should be incorporated. Tarmac had in fact, on 6 February 2006, confirmed that they were willing to complete a section 106 agreement to include a BMS.
110. The POR also confirmed that both the County Council's Principal Ecologist (then Ms Kirsty Maddocks) and English Nature were of the opinion that the proposed development would not have any significant adverse effect on ecology (paragraph 8.19).
111. As indicated above, for reasons unconnected with ecology but related to the size of the proposed extension, the recommendation of the POR was for the refusal of the planning application, and on 27 February 2006 the Committee followed that recommendation.
112. A revised application was submitted in June 2006, with an environmental statement. In addition to the changes referred to above in relation to Ground 1 (effectively reducing the size of the development), a new restoration design strategy and drawing (Drawing LO93-0016/L5) were prepared. In relation to that restoration strategy, given the Council's obligations under the biodiversity action plan, it is not surprising that its objectives were heavily focused on biodiversity. Paragraph I.20 set out the objectives, as follows:
"To take advantage of the varying water depths across the site to create shallows and increase habitat diversity.
To significantly increase the biodiversity of the existing site including.
• the development of marginal areas of reed bed habitat
• shallow, undulating margins on a range of water bodies of diverse structure
• neutral grassland"
113. Some design work had also been done to address the design concerns of Defence Estates by seeking to "designing out" the attraction of the restored site for birds such as gulls and geese. That was incorporated into the environmental statement submitted with the 2006 Application (Michael Glen First Statement 7 July 2009, paragraph 21). Although unfortunately I do not have a full copy of that statement, I understand that the body of it also addressed the birdstrike issue in the same or similar terms to the revised statement prepared in June 2008, prior to the matter going to the Planning Committee in August 2008. Under the heading, "Constraints of the Mineral Extraction Process and Restoration", in paragraph IV.30, it said:
"The proposed mineral extraction area falls within the MoD's area of exclusion related to RAF Leeming. The restoration of the site would therefore be subject to the prescribed requirements of a [BMS] which requires consideration of the following:
iii The avoidance of large areas of open water and the (preferred) creation of ‘small' water areas with a radius of less than 100m width to discourage roosting fowl.
iv The avoidance of islands (which provide wildfowl refuge from predators, such as foxes.
v The avoidance of open shallow water areas which are attractive to wildfowl and the preferred use of relatively steep-sided margins together wit a minimum 4m depth of water to inhibit feeding on submerged vegetation.
vi The avoidance of areas of open, short grassland surrounding the residual lake and the preferred use of tall grasses and clumps of trees and hedgerows which discourages wildfowl grazing activity in the vicinity."
114. The matter was considered by the Planning Committee on 21 January 2007. In the POR for that meeting, there was (at paragraph 6.11) an identical note concerning the position of Defence Estates to that in the POR for the 2004 Application. However, in relation to the County Council's own Heritage Section under the heading "Ecology" (at paragraph 6.14) it is noted that they "request that restoration proposals are clarified prior to the commencement of working and that the site management plan is secured through a section 106 agreement". That effectively reflects the two aspects of risk management that Defence Estates had earlier identified.
115. The POR recommended the grant of consent subject to conditions and a section 106 agreement with (amongst other things) a BMS (paragraph 12.1(vi)). Condition 3 required the development to be carried out in accordance with the environmental statement. Condition 7, under the heading "Detailed working and restoration schemes", read as follows:
"Prior to commencement of extraction in each phase a detailed scheme of working and restoration shall be submitted to and approved in writing to the County Planning Authority. Such schemes shall give details of
Nature Conservation Restoration
(x) Location of shore line to include promontories, bays and islands
(xi) Shoreline treatment to include gradients of water margins and specification for planting, soil/shingle covering...
Thereafter working and restoration shall take place in accordance with the approved details."
116. The Committee resolved to grant permission in accordance with the POR recommendations.
117. Tarmac prepared a draft section 106 agreement on 23 March 2007, but, with regard to the BMS, it simply said (at paragraph 6 of Schedule 2) that Tarmac would implement a BMS, suggesting in parentheses that the same BMS be used as had been used at another site, at Scorton.
118. Ms Maddocks commented on the draft section 106 agreement on 26 March 2007. She said:
"Clarity is needed to ensure that the plans cited ([including the BMS]) are consistent in their approach and drawn up collectively so as to ensure no conflict arises and that opportunities are maximised between the different requirements of each respective plan. Cross referencing and cumulative effects and opportunities of each of the plans should be provided for. At present the different specialist aspects of the site are being approached separately and yet the land will be managed as a single entity with differing requirements. I feel that we should be pulling this together more coherently within the relevant landscape framework to provide a more complete and long-term vision. This is not least because we need to demonstrate joined up thinking from inception, pursuance of opportunities and their implementation....
It is not recommended that the Scorton Plan is used wholesale word for word as each site is different. Further there should be scope and opportunity to amend, adjust or revise the bird management tactics to the benefit of nature conservation above and beyond that at Scorton using the experiences that Scorton has given us. I think we should push this to the absolute limit, as some of the bird management procedures can be diametrically opposed to the other natural environment objectives we are trying to achieve.
Why is the timing of the bird management plan different to that of the other plans? This plan should be prepared in conjunction with the other plans so that it can be sensibly applied to the site. Unless of course it is to simply be a series of guiding principles? I would be interested to know the view on this. My feeling is that we should be working up the restoration objectives and feeding in the bird management plan and not letting the bird management plan drive the whole restoration process."
I pause there to say that that memorandum is first of two sets of comments made by the County Principal Ecologist from time-to-time that the Claimant submits ought to have been taken into account by the Planning Committee in August 2008.
119. A section 106 agreement was executed on 3 October 2007. Paragraph 6.1 required the developer (Tarmac), prior to commencing work on phase 6, to submit a BMS to the Council for its approval. Paragraph 6.4 provided that the BMS:
"... shall make provision for the following matters during the 25 year post-extraction period:
6.4.1 Successful breeding by and establishment of a significant population of feral/wild geese and/or gulls is to be avoided.
6.4.2 Proposed lake shoreline, residual body configurations and lake marginal planting are designed to minimise their attractiveness to large flocking birds, but do not conflict with 5.3.1 [that seems to be a reference to paragraph 5.5.1]
6.4.3 Maintenance of appropriate lake shoreline profiles and marginal planting is in accordance with the restoration and Aftercare Plan.
6.4.4 Access to the site at reasonable times and on reasonable notice to be granted to the Council and the Ministry of defence for the purposes of verifying bird populations.
Paragraph 6.5 provided that as soon as the BMS was approved by the Council, the site owners and Tarmac should implement its provisions in accordance with the timetable as set out. Paragraph 6.6 allowed Tarmac to amend the BMS with the approval of the Council.
120. Paragraph 5.1 of the section 106 agreement provided that the agreement would end if the planning permission were quashed.
121. Tarmac submitted a draft BMS in line with the requirements of section 106 agreement in November 2007 (although it is dated July 2007). Paragraph 1.9 set out the aims of the plan:
"The aim of this document is to achieve the minimisation of risk caused by target birds assembling on the site in significant numbers rather than the removal of such risk. As such, it contains broad strategies which would lead to ‘risk reduction'. These strategies would be incorporated, as considered appropriate, into detailed design and implementation of the site restoration. In order to achieve the proposed afteruses of the site, any or all of the identified measures may not be employed if that afteruse would be prejudiced."
It was proposed that, as envisaged in the section 106 agreement, a Management Plan would be drawn up for the proposed operations to reflect the BMS (paragraph 1.7).
122. By this time, Ms Maddocks was no longer the County's Principal Ecologist. Ms Julia Casterton had taken over. She commented on various issues relating to the discharge of the planning permission condition and the section 106 agreement (including the draft BMS) on 29 January 2008. In respect of the BMS, she said:
"There is a fundamental contradiction of the [BMS] and nature conservation restoration which was agreed as part of the planning consent. The nature conservation restoration strongly promotes areas of shallow water, peninsulas, islands and marsh grassland with reduced areas of deep water. The [BMS] which was required as part of the section 106 agreement suggests larger areas of deep water, steep sides and no islands or peninsulas.
We cannot at this stage agree to the information submitted for either condition 7 or the section 106 agreement.
Tarmac need to either submit a fully revised restoration scheme for approval or they need to review the bird management plan to ensure that it does not contradict the principles of the approved nature conservation.
There are serious concerns that the restoration outlined in the bird management plan is unachievable and the difficulties in achieving this type of restoration are not alluded to in the plan. Difficulties in achieving restoration on previous sites should be considered when developing nature conservation restoration and bird management strategy."
Again, in parentheses, that memorandum is the second set of comments from the Council's Principal Ecologist which, the Claimant submits, ought to have been submitted to the Planning Committee for consideration on 26 August 2008.
123. In her witness statement of 3 July 2009, Ms Casterton identified what her concerns were in March 2008:
"9. The comments made in relation to the [BMS] and the submission made under condition 7 (restoration details) were concerned, first, with the ability to implement the plans/proposals due to caveats contained within each that seemed to cancel each other out. In particular, I was concerned with a paragraph within the information submitted under condition 7, that states, "However, care must be taken not to compromise the names of the [BMS], which has been submitted in accordance with an obligation contained within the section 106 agreement". In the [BMS], I was concerned with paragraph 1.10 and 1.11 in terms of "site restoration, habitat management... when the control of target birds is not compromised" because in my view the restoration plan needed to prevail. I had not at that stage seen the section 106 agreement.
10. My concerns were not raised in relation to the active bird management measures proposed in the [BMS].
11. As a result I was concerned that the nature conservation objectives outlined within the application would not be achieved to their maximum potential. At this stage I required further clarification to understand how the nature conservation restoration objectives and the requirements of the [BMS] could both be met. I was looking for them to resolve the conflict that I saw between the two proposals."
From contemporaneous evidence, it seems that Ms Casterton may be mistaken in saying that she had not seen the section 106 agreement at that stage: but nothing seems to turn on that.
124. On 21 February 2008, Ms Casterton met with representatives of Tarmac, and her concerns were discussed. The minutes record that:
"Tarmac to review and respond to contents of [Ms Casterton] memo (handed to [Tarmac]) re incompatibility of [BMS] and proposed LFE final restoration proposal"
125. However, before that was actioned, the 2007 planning permission was quashed on 12 March 2008. The section 106 agreement, incorporating the requirement for a BMS, consequently came to an end (see paragraph 120 above).
126. Nevertheless, there was continued dialogue on bird management issues between the Council and Tarmac, as pre-reapplication discussions. On 23 April 2008, Ms Casterton received a revised BMS from Tarmac for comments: and she and Tarmac representatives met again on 7 May 2008 to discuss its contents. The key points from that meeting were, according to Ms Casterton (Statement 3 July 2009, paragraph 13):
a) that the overall measures included within the BMS were satisfactory in principle.
b) that simply looking at the BMS and nature conservation objectives side by side there was a potential conflict between the two.
c) the various mechanisms that were being put in place to review this conflict through the section 106 agreement.
127. The outcome of the meeting was that Tarmac was to review the draft BMS to consider whether it needed amending before it was formally submitted to the Council should planning permission be granted. On 9 May, Mr Glen on behalf of Tarmac sent an email to Ms Casterton, suggesting the following (italicised) amendments to paragraph 1.9 of the BMS:
"The aim of this document is to achieve the minimisation of risk caused by target birds assembling on the site in significant numbers rather than the removal of such risk. As such, it contains broad strategies and measures, such as the establishment and maintenance of fringing reeds around water areas, which would lead to ‘risk reduction'.
These strategies would be incorporated, as considered appropriate, into detailed design and implementation of the site restoration that would seek to maximise the opportunities for biodiversity and nature conservation. In order to achieve the proposed nature conservation priority afteruse of the Ladybridge Farm site, any or all of the identified measures may not be employed if that afteruse would be significantly prejudiced."
128. Ms Casterton agreed that by email on 13 May. It was envisaged that there would be a restoration review based on a programme of three site meetings a year (Mr Glen email to Ms Casterton, 13 May 2008)
129. In May 2008, Tarmac asked the Council to reconsider the application for permission: and in June, they submitted a revision to the environmental statement. That was sent to the Council's Heritage Section (Ms Casterton), but they made no further comment.
130. The Planning Committee considered the application for a second time on 26 August 2008. The POR contained the same narrative about the views of both the Principal Ecologist and Defence Estates (i.e. that Defence Estates had confirmed that it had no safeguarding objections in respect of the proposal) (see paragraphs 108-110 and 114 above]). None of (i) the draft 2007 BMS, (ii) the 2008 BMS prepared following the permission that was quashed or (iii) the Principal Ecologist's comments of 26 March 2007 or 29 January 2008 was submitted to the Council.
131. The POR recommended grant of permission, subject to the same conditions and section 106 agreement as previously. A new draft section 106 agreement was attached to the report - the paragraph in the section 106 agreement attached to the permission was in the same form as the previous agreement (although renumbered paragraph 15) - and the Committee's attention was drawn to the fact that that agreement would require a BMS.
132. The application was considered in full at the 26 August meeting. The minutes of the meeting say::
"Members undertook a detailed discussion on the application, requesting clarification on issues raised from the applicant, the objectors and planning officers. A proposal was put forward for a reduction in the amount of water areas but would be included in the eventual restoration of the land, but this was not supported."
133. The Committee resolved that planning permission should be granted subject to a section 106 agreement and the conditions recommended in the POR (including, of course, Condition 7).
134. Discussions continued thereafter in relation to the section 106 agreement. On 13 November 2008, Ms Casterton confirmed that she was satisfied with the draft agreement from an ecological point of view. It was signed the following day. The obligations made it clear that restoration was to be undertaken in a way to maximise nature conservation.
135. Planning permission was finally granted on 21 November 2008. It was subject to the section 106 agreement and a number of conditions, Condition 7 of which was substantially the same as Condition 7 of the quashed 2007 consent (see paragraph 115 above), save that the requirement to provide details of islands was omitted.
136. The BMS was formally submitted in December 2008. Ms Casterton commented on it on 11 and 13 February 2009, indicating that she had "no major concerns" about the BMS, although:
"Due to the restrictions imposed by the MOD there is always going to be potential conflict between nature conservation and [BMS], but hopefully with good communication this can be dealt with during the restoration and management process. Good communication (and the need to balance these two issues) is all that I have raised in comments relating to the [BMS]..."
137. On 3 March 2009, the matter came back before the Planning Committee for approval of the discharge of various conditions to the permission (including Condition 7). Condition 7(x)-(xii) were delegated, subject to consideration of any further views Defence Estates may have. As I understand it, those conditions were duly discharged in June 2009.
138. With that factual background, I can now turn to Ground 3 relied upon by the Claimant. Mr Harwood submitted that the POR was defective in not referring the Planning Committee to the BMSs that had been prepared in respect of the 2006 Application, i.e. the 2007 BMS (that was signed as part of permission that was quashed) and the 2008 BMS (that was, in August 2008, still in draft form and still merely a discussion document): and the Principal Ecologists' advice on bird management measures to which I have referred, "particularly that there was a ‘fundamental contradiction' between the bird management and nature conservation proposals" (Claimant's Supplementary Skeleton Argument, paragraph 6(iii)). That, of course, is a reference to the comments of Ms Casterton on 29 January 2008 (quoted at paragraph 122 above). The focus on that aspect was understandable because, as Mr Harwood put it (Claimant's Supplementary Skeleton Argument, paragraph 38):
"That the detail of restoration and bird management might be able to be deferred for later approval, does not alter the need to consider at the planning application stage whether they can be carried out in an acceptable fashion. If not, it would be irrational to defer their approval to a planning obligation or condition." (emphasis added)
139. That is correct as a proposition. But the question in this claim is whether there was, at the time of the Planning Committee's consideration of the application in August 2008, any real possibility of bird management issues being incapable of being resolved - essentially to the satisfaction of Defence Estates - in the light of the restoration scheme that was an inherent part of the development proposal. If there had been such a possibility, then that would have been relevant to the decision on the application before the Committee in August 2008 and the BMSs and comments of the Principal Ecologists would go to that material consideration.
140. Mr Harwood submitted that the evidence showed that there was such a possibility, the main evidence he relied upon being the contradiction in the environmental statement prepared for the 2006 Application between the proposals in the restoration scheme in favour of biodiversity (in paragraph I.20, quoted at paragraph 111 above) and the proposals resulting from consideration of bird management in the light of the risk of birdstrike (in paragraph IV.30, quoted at paragraph 112 above). It is that which appears to have triggered Ms Casterton's "fundamental contradiction" remark. Mr Harwood submitted that the BMSs and comments from the Principal Ecologists were such that, had they been before the Committee, the Committee would or could have given them some weight in relation to the decision on approval of permission; and, as a consequence, the Committee's decision might have been different.
141. However, I do not agree.
142. First, there is no logical or inevitable irreconcilable conflict between the passages from the environmental statement relied upon by Mr Harwood, that related to the restoration strategy and bird management. Paragraph I.20 set out objectives of the restoration strategy, heavily biodiversity-based. Paragraph IV.30 set out matters that would have to be considered in relation to bird management and the risk of birdstrike. As I have noted, the objectives of the local authority in pursuing biodiversity and of an aerodrome operator seeking to minimise the risk of birdstrike are, of course, different and are very likely to be in tension. In practice, the plans for the restoration of the development needed to consider these diverse objectives, and arrive at a scheme that encouraged biodiversity whilst satisfying Defences Estates that the design of the scheme (together with a later BMS) would not increase the risk of birdstrike.
143. However, it is true that the environmental statement highlighted the differences in objectives, without making proposals as to how they would be reconciled in practice. Indeed, the scheme as a whole sought to promote a landscape with shallow water areas, peninsulas, islands and marshy grassland with less areas of deeper water pursuant to the objectives of the nature conservation restoration strategy: whilst at the same time seeking to promote a landscape of larger areas of deeper water with steep banks, with no islands or peninsulas, pursuant to bird management objectives. That was the "fundamental contradiction" referred to by Ms Casterton in her 29 January 2008 memorandum. As she herself said (Statement 3 July 2009, paragraph 19), she simply saw a potential conflict within the proposals, not a conflict that was inevitable or irreconcilable. However, those objectives needed to be reconciled in practice. Certainly, both Defence Estates and the Principal Ecologist had to be satisfied that the design of the restoration scheme would not be incompatible with a BMS which would satisfactorily minimise the additional risk of birdstrike.
144. Ms Casterton, being the County Principal Ecologist, was of course primarily concerned with the nature conservation and biodiversity aspects of the restoration scheme. She was anxious that any scheme for bird deterrence adversely impacted upon that as little as possible. She was also concerned that the bird management proposals being put forward at that stage might be "unachievable". Defence Estates on the other hand were concerned that the development did not increase the risk of birdstrike.
145. That was in the first quarter of 2008. However, the position had changed by August 2008, when the Planning Committee came to consider the application. During 2008, nature conservation and bird management were addressed together, as Ms Maddocks had suggested was an appropriate course in her memorandum of 26 March 2007. By August 2008, Ms Casterton was satisfied with the design of the restoration scheme: and she was satisfied that bird management, satisfactory to Defence Estates, could be worked out within that design, through conditions, a section 106 agreement and a BMS. Mr Harwood suggested that there was little in the way of changes to the BMS or otherwise that could have comforted Ms Casterton in the meantime: but discussions were on-going and there is nothing to suggest that Ms Casterton was other than sufficiently comforted by them by August 2008. As I have said, she was concerned to ensure that the biodiversity elements of the restoration scheme were not compromised. By August 2008, she was confident that they would not be compromised by measures for dealing with birdstrike risk which she was satisfied could be achieved, to the satisfaction of Defence Estates and within the design parameters proposed, through a section 106 agreement and BMS. She said that, by August 2008, she was "satisfied that the mechanisms provided sufficient control to the Council and other organisations" (Statement 3 July 2009, paragraph 17). Again, that was a judgment she was entitled to make. For its part, Defence Estates had no safeguarding objections. They too considered that their bird management concerns could be dealt with through conditions etc, within the context of the design parameters proposed. Nothing has happened subsequently to suggest otherwise.
146. In these circumstances, the Claimant's primary contention under this ground (that there was an irreconcilable conflict between the restoration scheme and the BMS as at August 2008) is seen to be baseless. The differences in objectives - which never, in my view, created any irreconcilable conflict - had been reconciled in practice, at least to the extent that all relevant parties (Defence Estates, the Council by its Principal Ecologist and Tarmac) were by August 2008 satisfied that outstanding matters could safely be left to be dealt with, within the proposed design, by conditions and planning obligations. So far as Defence Estates and the Council were concerned, that was a matter of judgment for each of them with their own, different statutory responsibilities. Certainly, by August 2008, there was no real possibility of bird management issues being incapable of being resolved - essentially to the satisfaction of Defence Estates - in the light of the restoration scheme that was an inherent part of the development.
147. In those circumstances, the comments of the Principal Ecologists - expressing concern about plans that had been altered to address those very concerns, and altered to the Ms Casterton's satisfaction - could not possibly have been material to the decision the Planning Committee were required to make on 26 August 2008.
148. Nor in my view were the BMSs prepared in 2007 and 2008 material to that decision. What was relevant for the Planning Committee was assurance that the restoration scheme, which they were being asked to approve consent, was secure and not at risk because of bird management issues that could properly be dealt with by conditions and the imposition of planning obligations. They properly had that assurance. That the BMS required further work was neither unusual nor relevant to the Committee's decision-making process. I do not see how, even arguably, those documents could have had any weight in respect of the decision they were required to make.
149. Mr Harwood submitted that both the consequences for human health of birdstrike causing an aeroplane to crash, and the impact of shooting birds and killing their eggs, inevitably meant that birdstrike risk was a likely significant effect of the development. However, in relation to the former, Defence Estates were insistent that the development did not significantly increase the risk of birdstrike at all: and they, as well as Ms Casterton, were confident that that could be done, within the proposed restoration design, through conditions and a BMS. In relation to the latter, active measures occupied only one page of the 17-page 2008 draft BMS: and that made clear that such measures would only be used as a last resort, if monitoring suggested passive measures were not working. None of the experts considered that active bird management measures would be likely or constitute a likely significant effect on the environment. In any event, fatal actions would not be taken against protected species. Active measures were not likely to cause significant effects because "such measures only have an ephemeral and inconsequential impact on birds of minimal ecological importance" (Malcolm Ratcliff Third Statement 29 June 2009, paragraph 37).
150. There was therefore no evidence to suggest that the development would realistically give rise to any likely significant effects on the environment arising from birdstrike and its proposed management. That was the case despite the fact that (i) Tarmac opted to refer to birdstrike in its environmental statement, following Defence Estates raising the issue in 2005 in respect of the 2004 Application, and (ii) it was proposed to incorporate a BMS in a section 106 agreement.
151. Nevertheless, Mr Harwood submitted that the Committee was bound to take the BMSs and comments of the Principal Ecologist into account because of the terms of the EIA Regulations. By Regulation 3(2), the Committee had to take into consideration "the environmental information", which is defined to include the environmental statement, any representations made by any body required by the Regulations to be invited to make representations, and any representations duly made by any other person about the environmental effects of the development (Regulation 2). It also includes "other information" which is itself defined as "any other substantive information relating to the environment statement and provided by the applicant". The BMSs and comments (he submitted) fell within this definition of "environmental information", and therefore the Committee were bound to take them into account irrespective of significance or materiality.
152. I do not accept that argument. First, a number of points can be made about whether the information (the BMS 2007, the draft BMS 2008 and the Principal Ecologists' comments) do fall within the definition of "environmental information". Article 2(1) of EC Directive 2003/4 includes in the definition "environmental agreements" in that definition: but the BMS 2008 was not an agreement, merely a draft; whilst the BMS 2007, as Miss Patterson submitted, had ceased being an agreement by August 2008 because of the quashing of the 2007 permission. In any event, the BMS 2007 related to the initial application - rather than the re-application - as did the comments of Ms Maddocks in March 2007. I see some force in those arguments.
153. However, it is unnecessary to determine them in this case, and they seem to me to miss the substantive point. This submission is made on the basis that these documents are not material considerations in the sense that they could not realistically attract any weight in the relevant decision-making process. Leaving "likely significance" aside, I do not accept that the EIA Directive or Regulations requires - or could sensibly require - a planning authority to take into consideration matters which are immaterial. If I were required to, I would find that, in Regulation 3(2), "environmental information" is constrained or limited to information which is material to the relevant planning decision. The purpose of the EIA Directive is to ensure that significant environmental effects are assessed prior to relevant planning decisions, and should be given a purposive construction. It is inherent in the Directive that only relevant information is provided and taken into account in decision-making.
154. However, I do not need to go even that far in this case because the Planning Committee's decision could not have been different even if they had breached that regulation and not taken into account matters which, by definition, could not have had attached to them any weight at all in the decision-making process. Even on the strictest application of Berkeley v The Secretary of State for the Environment  2 AC 603 urged upon me by Mr Harwood, again giving the relevant provisions a purposive construction I would have no hesitation in finding that, in these circumstances, not only did the breach of the Directive provisions have no effect on the decision made, but that there had been substantial compliance with the EIA Directive and EIA Regulations that transpose it.
Ground 4: The Environmental Statement
155. In the Claimant's final ground, she contends that the June 2008 environmental statement was deficient in failing to include a BMS, and the POR and subsequent decision of the planning Committee of 26 August were consequently legally flawed.
156. This is a particularly bold submission in the light of the findings I have made in respect of the BMS above, and also the comments of Sullivan J in R (Blewett) v Derbyshire County Council  EWHC 2775 (Admin);  Env LR 29 upon the proper approach to claims that environmental statements are deficient. Sullivan J said (at -):
"41. Ground 1 in these proceedings is an example of the unduly legal approach to the requirements of Schedule 4 to the [EIA] Regulations that has been adopted on behalf of claimants in a number of applications for judicial review seeking to prevent the implementation of development proposals. The Regulations should be interpreted as a whole and in a common-sense way. The requirement that "an EIA application" (as defined in the regulations) must be accompanied by an environmental statement is not intended to obstruct such development. As Lord Hoffman said in R v North Yorkshire County Council ex parte Brown  1 AC 397 at page 404, the purpose is "to ensure that planning decisions which may affect the environment are made on the basis of full information". In an imperfect world, it is an unrealistic counsel of perfection to expect that an applicant's environmental statement will always contain the ‘full information' about environmental impact of a project. The Regulations are not based upon such an unrealistic expectation. They recognise that an environmental statement may well be deficient, and make provision through publicity and consultation processes for any deficiencies to be identified so that the resulting ‘environmental information' provides the local planning authority with as full a picture as possible. There will be cases where the document purporting to be an environmental statement is so deficient that it could not reasonably be described as an environmental statement as defined by the Regulations.... But they are likely to be few and far between.
42. It would be no advantage to anyone concerned with the development process - applicants, objectors or local authorities - if environmental statements were drafted on a purely ‘defensive basis', mentioning every possible scrap of environmental information just in case someone might consider it is significant at a later stage. Such documents would be a hindrance, not an aid to sound decision-making by the local planning authority, since they would obscure the critical issues in a welter of detail.
157. Having rejected the claim in the case, he continued (at ):
"I have dealt with [the ground] in some detail because it does illustrate a tendency on the part of claimants opposed to the grant of planning permission to focus upon the deficiencies in environmental statements, as revealed by the consultation process prescribed by the Regulations, and to contend that because the document did not contain all the information required by Schedule 4, it was therefore not an environmental statement and the local planning authority had no power to grant planning permission. Unless it can be said that the deficiencies are so serious that the document cannot be described as, in substance, an environmental statement for the purposes of the Regulations, such an approach is in my judgment misconceived. It is important that decisions on EIA applications are made on the basis of ‘full information', but the Regulations are not based on the premise that the environmental statement will necessarily contain the full information. The process is designed to identify any deficiencies in the environmental statement so that the local planning authority has the full picture, so far as it can be ascertained, when it comes to consider the ‘environmental information' of which the environmental statement will be but a part."
158. Those remarks display Sullivan J's usual insight into such matters. I gratefully adopt them as my own.
159. In the light of them, I consider Ground 4 is without merit, for the following reasons.
160. I do not have a full copy of the June 2008 environmental statement - no doubt because of its length - but from the extracts I do have it appears to have been about 120 pages long with seven lengthy appendices. I have referred to quoted extracts relevant to this claim, including those concerned with the restoration strategy and bird management. On no view could it be arguable that the statement contains "deficiencies [that] are so serious that the document cannot be described as, in substance, an environmental statement for the purposes of the Regulations."
161. The June 2008 environmental statement did address the issue of bird management. In paragraph II.78, it said:
"The [restoration design] presented is designed to maximise the area returned for nature conservation afteruses and contribution to landscape enhancement whilst minimising the potential for birdstrike hazard and the loss of high-quality agricultural land."
It was entirely unnecessary for the environmental statement to include details of landscaping and habitat to the degree that is necessary in a BMS designed to deal with potential birdstrike risk. Those are matters which do not go to the design of the development. Such schemes for the management of habitat in order that they may be controlled in some way are not uncommon, and they can be (and usually are) sensibly the subject of planning obligations in the form of a section 106 agreement, after permission has been approved.
162. Nor, at the time of the BMS, did bird management strategy fall within Schedule 4 to the EIA Regulations by being either something which itself had "a likely significant effect" on the environment, or by being a measure to prevent or reduce any significant adverse environmental effect, for the reasons I have given above. It is impossible for a BMS to be settled without detailed discussions between the relevant aerodrome authorities (who have the responsibility for ensuring that the risk of birdstrike is properly managed), the planning authority and developer. Those discussions take place as part of the planning process referred to by Sullivan J. In any event, any BMS needs to be sufficiently flexible to ensure that, if variables change, the risk can still be managed satisfactorily. Further, in the light of those changes, there has to be scope for amending the BMS over time. That is why there is provision for monitoring of birds at the site post-restoration, and for regular reviews of how any steps put in place by a BMS are working. I note that it is proposed that the post-restoration obligations on Tarmac will apply for 25 years.
163. For these reasons, it was neither necessary nor possible for a BMS to have been incorporated into the environmental statement. Certainly, the lack of a BMS in the statement did not render that statement flawed, such that the ensuing permission is legally defective.
164. In respect of Ground 4 (which, as I have indicated above, I do not consider arguable), I refuse permission. However, this rolled-up application involved hearing bundles of ten lever arch files of documents (including over 30 authorities) and three lengthy days' argument, mainly in relation to Grounds 1, 2 and 3. In respect of those grounds, I grant permission: but, for the reasons I have given, I dismiss the substantive application.