R v Derbyshire County Council and another, ex parte Woods

Developer applying for planning permission – Applicant objecting – Whether council giving adequate consideration to applicant’s representations – Whether council failing to take into account relevant issues – Whether council considering and interpreting national policy correctly – Application for judicial review – Leave refused – Court of Appeal dismissing renewed application The second respondents, who were developers, made four development proposals in relation to land in the valley of the River Rother in Derbyshire. The proposals were to extract 437,000 tonnes of open cast coal, to reclaim a former coke works and bury contaminated material from the worked mine in one of the open cast voids, to restore the land to agriculture, amenity and a land form capable of use for industrial development and to construct a road and a bridge. The application for planning permission was lodged with Derbyshire County Council. The applicant, who lived near the coke works made objections to the council in relation to the works and the objections were passed on to the subcommittee. After a meeting at which objections were made by representatives of three local parish councils the subcommittee approved a majority of the proposals. The applicant sought judicial review claiming that the subcommittee had failed to give adequate consideration to his objections regarding control of noise from the proposed development and other courses of action which could be taken, funded by a subsidies, which would cause less damage to the environment. The applicant also contended that the council had failed to take into account national policy as set in paras 60-61 of MPG3. The judge, refusing leave to apply for judicial review, held that the council’s consultation exercise looked at as a whole could not be said to be unfair. The applicant made a renewed application to the Court of Appeal. Held The applicant’s renewed application was dismissed. 1. The possibility of a subsidy for the works was a matter of great uncertainty and it would have been inappropriate for the council to have taken that possibility into account. 2. Although the council had failed to consider whether they would have appropriate powers to adopt a lower nominal daytime limit above existing background noise levels, it was not an appropriate ground on which to grant judicial review since the passage phased in the relevant guidelines was in terms as tentative as ‘A lower nominal daytime limit might be appropriate . . .’ and the difference in limits would have made no difference at all to the applicant and other nearby inhabitants. 3. Although the council had not expressly adopted a test which had required them to consider whether the benefit of the development outweighed the harm it would cause and whether the impact, singly or together, would have such an adverse effect on the environment and on the quality of life for the locality that the para 61 test should have applied, it was not arguable that the council had failed to take proper account of national policy guidance, as set out in para 60-61 MPG 3, when they had decided to grant permission for the development. Andrew Gilbart QC and William Birtles (instructed by Tyndallwoods) appeared for the applicant; John Hobson (instructed by the solicitor to Derbyshire County Council) appeared for the first respondents; Gerard Ryan and Douglas Edwards (instructed by the solicitor to Fitzwise Ltd) appeared for the second respondents.