Haden, R (On the Application Of) v Shropshire Council

The Claimant seeks judicial review of the decision of Shropshire Council (“the Council”) dated 17 May 2019 (“the Decision”) to grant the Applicant (which is now the Interested Party in these proceedings) planning permission for a development on land near Shipley, Bridgnorth Road, Shipley, Shropshire (“the Site”). The permission was for:

The Claimant contends that the Decision is unlawful on four grounds:

The Council breached reg. 3(4) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011;

The Council failed to satisfy the legal requirements in relation to the statutory development plan; iii) The Council erred in law in relation to the Green Belt; and iv) The Council erred in law in relation to air quality / dust.

By Order dated 10 September 2019 Sir Ross Cranston (sitting as a High Court Judge) granted permission on Grounds 1 and 2 but refused permission on Grounds 3 and 4.

The Site comprises 44.53ha of agricultural land in the Green Belt. The Development comprises the phased extraction, processing and export from the Site of c. 3.5 million tonnes of saleable sand and gravel aggregate. The total amount excavated will be 4.13mt but this will be reduced by mineral processing. The mineral will be exported from the Site at an average annual rate of about 250,000 tonnes. Mineral production will last for a period of about 14 years, with an initial preparatory period of up to one year and a final restoration period lasting about two years. Initial works will include the formation of screening mounds around the periphery of the Site. The equipment used at the Site will primarily consist of long-arm excavators, backacters, front-loaders, articulated trucks, static wash plant and mobile mineral processing plant; possibly also a conveyor for transporting material across the Site. When operational, the Development is likely to result in an average of about 96 individual HGV movements (48 return movements) per operational day.

Under the proposal, the Site is subdivided with extraction and restoration taking place in phases. After extraction has finished, the Site will be restored progressively to a combination of agricultural land, with nature conservation interest and enhanced habitat diversity including species rich grassland, acid grassland/heath mosaic and woodland. The amount of best and most versatile agricultural land would remain unchanged. No importation of material would be required. The changes effected by the extraction will be very largely reversible. The restoration is to mimic the current lie of the land. Although there will be some permanent change to the landform, it will only be apparent at local level, not least because of peripheral planting and bunding such as is now typical for mineral extraction sites.

The Council received the Interested Party's application for planning permission for the Development ("the Application") on 1 November 2017. An officer's report to the Council's South Planning Committee ("the Committee") was prepared, which recommended that planning permission for the Development be granted, subject to the imposition of planning conditions and the completion of a s. 106 agreement.

The Committee considered the Application on 25 September 2018. It resolved that planning permission should be granted, subject to the imposition of planning conditions and the completion of a s. 106 agreement. The s. 106 agreement was completed on 17 May 2019 and planning permission for the Development ("the Permission") was granted on the same day.

It is common ground that the applicable regulations are The Town and Country

Regulation 3(4) provides that:

"Environmental information" was defined by reg. 2(1) as meaning:

that includes such of the information referred to in Part 1 of Schedule 4 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

that includes at least the information referred to in Part 2 of Schedule 4; ..."

Part 1 of Sch. 4 included the following:

A description of the aspects of the environment likely to be significantly affected by the development, including, in particular, population, fauna, flora, soil, water, air, climatic factors, material assets, including the architectural and archaeological heritage, landscape and the inter-relationship between the above factors.

A description of the likely significant effects of the development on the environment, which should cover the direct effects and any indirect, secondary, cumulative, short, medium and long-term, permanent and temporary, positive and negative effects of the development, resulting from—

the existence of the development;

the use of natural resources;

the emission of pollutants, the creation of nuisances and the elimination of waste,

Part 2 of Sch. 4 included the following:

The net result of these provisions is that the Environmental Statement must include the information referred to in Part 2 of Schedule 4 without the “reasonable requirement” qualification which applies to information that falls within Part 1 but not Part 2 of Schedule 4. The second point to note is that paragraphs 3, 4, and 5 of Part 1 are concerned with “significant effects” that are “likely”, while paragraphs 2 and 3 of Part

The Claimants rely upon the decision of Harrison J in R (ex p. Hardy) v Cornwall County Council [2001] Env LR 25. There is little between the parties on the main principle to be derived from Hardy. It is encapsulated at [56] where Harrison J said:

On the facts of Hardy, the outstanding information related to the protection of roosting or resting bats, which were subject to strict protection under the Habitats Directive. The Council decided that further surveys were required to see whether or not roosting or resting bats were present; but instead of requiring those surveys to be carried out before the issue of permission was determined, it granted permission and made it a condition that the surveys be carried out and appropriate mitigation measures be prepared. With compelling logic, Harrison J said at [61]-[62]:

This passage provides a good illustration of how the principle set out at [14] above may work in practice. It does not, to my mind, add any new or additional principle. It is merely the working out of a factual conclusion that the requirements of Part II of Schedule 4 had not been satisfied. The grant of planning permission was therefore quashed. The judgment makes clear that the decision whether outstanding information falls within the ambit of either Part I or Part II of Schedule 4 will always be intensely fact sensitive: see [65] where the distinction is drawn between outstanding information relating to bats on the one hand and badgers or liverwort on the other.

The first question in every case is whether the Council could rationally conclude that the outstanding aspects did not amount to “significant adverse effects” or “main effects”. If they did or could amount to “significant adverse effects" or “main effects” the next question would be whether the Council could rationally conclude that those significant or main effects were not likely. These questions flow directly from the terms of Schedule 4; and see Hardy at [58].

Although arising in slightly different circumstances, two statements of principle from R (Jones) v Mansfield DC [2003] EWCA Civ 1408 show the approach to be taken to the question whether a development is likely to have significant effects on the environment. At [17] Dyson LJ (with whom Carnwath LJ agreed) said:

At [38]-[39] he said:

Lindblom LJ’s convenient summary of “the well settled principles” at [41]-[42] of Mansell v Tonbridge and Malling BC [2017] EWCA Civ 1314 is sufficient for present purposes and does not need to be set out again in full. The guidance that Officers’ Reports “are not to be read with undue rigour, but with reasonable benevolence, and bearing in mind that they are written for councillors with local knowledge” and the guiding criteria that “minor and inconsequential errors may be excused” and that “it is only if the advice in the officer’s report is such as to misdirect the members in a material way – so that, but for the flawed advice it was given, the committee’s decision would or might have been different” are to be borne in mind at all times.

In addition, I note with respectful agreement the observation of Andrews J in Pagham Parish Council v Arun District Council and Langmead [2019] EWHC 1721 (Admin) at [33] that the Court should resort to good sense and fairness and should not adopt a hypercritical approach.

The Claimant submits that, in failing to require further hydrological assessment before granting the Permission, the Council breached regulation 3(4) of the 2011 Regulations. It submits that on a proper understanding of observations made by the Environment Agency the Council should have decided that there was inadequate evidence upon which to conclude that significant effects were not likely; and that, if it was going to disagree with the Environment Agency, it had to give cogent reasons, relying upon R (Prideaux) v Buckinghamshire County Council [2013] EWHC 1054 Admin at [116].

The Council and the Applicant submit that there was ample evidence upon the basis of which the Council was entitled to and did conclude that there was no likely significant effect that required further assessment to be carried out and that proper provision was made for future contingencies by conditions, the true purpose of which was to provide reassurance in the event that any adverse effects eventuated.

The information in respect of hydrology/hydrogeology that was before the Committee in making the Decision included the following:

The environmental statement ("ES") dated 17 November 2017;

Two reports prepared by Caulmert on behalf of the Interested Party, dated May 2018 and July 2018;

A response to a Regulation 25 request for further information dated 31 May 2018;

A report prepared by Stephen Buss on behalf of an objector, dated 6 September 2018 ("the Buss Report"); and

Consultation responses from the Environment Agency ("the EA") dated 15

The relevant section of the ES reported on a study area comprising the Site, the groundwater and surface water environment located within a c. 2 km radius of the centre of the Site, geological information located within 500m of the Site’s boundary, and private water supplies within c. 2 km of the Site. It addressed the existence of an aquifer below the level of proposed extractions and the existence of localised perched water strikes. It recorded that there was broad agreement with the Environment Agency (based on pre-application discussions) that the baseline information available for the Site was relatively extensive and that “the Proposed Development could be designed to avoid the potential for significant adverse effects on the water environment”; and, elsewhere, it reported that “the available hydrological and hydrogeological baseline for the Site has enabled the Proposed Development to be designed in order to avoid impacts from the proposals on the Water Environment”: see [9.5.2.1]. In the section headed “Perched Water” it reviewed the evidence from borehole logs and stated that the evidence from the borehole logs “indicates that any perched water strikes are as a result of localised geological conditions, not uniform throughout the Site, whereby natural percolation through the strata is slightly impeded not replicated throughout most of the geology.” It concluded that “there is no evidence to indicate that any of the perched water would be significantly productive or a significant water resource”: see [9.4.4.13][9.4.4.19]. The gist of the report was summarised in the conclusion section at [9.7.1.1]: “At each stage of the development, the overall risks are considered to be low. Therefore the Proposed Development is not expected to pose a risk to groundwater quality or groundwater levels/flows at the Site or in the aquifer around the Site. No significant adverse effects are predicted, and would not pose a constraint to development.”

The Environment Agency’s first response was dated 15 December 2017 and contained a section on “Potential Impact upon shallow/perched water table”. It recorded the opinion expressed in the ES that “as the site will not be wet worked and only perched water is likely to be affected by quarry activities the potential risk to local groundwater abstractions is consider [sic] to be minimal (low risk)”, but it questioned whether the ES’s conclusions were sufficiently robust given the possible presence of unlawful abstractions. The passage in full read:

The Applicant responded by providing what has been called the First Caulmert Report. It addressed the issues that had been raised by the Environment Agency on the basis of further analysis and investigations. It concluded that known incidents of water abstraction were from the principal aquifer (and therefore not liable to be dependent upon perched water supplies). In relation to the springs at Grange Farm it acknowledged that the source of the water in the springs was unknown but gave cogent reasons, applying the precautionary principle, for thinking that the excavations would not affect them. Similarly it provided cogent reasons for thinking that the excavations would not affect the ponds and pools at Shipley Hall. The gist of its conclusions appears from the last paragraph – [4.1.5] -, which stated:

On 31 May 2018 the applicant responded to the Defendant’s Regulation 25 request, which was dated 15 March 2018. In relation to water features it referred to and relied

In July 2018, Caulmert provided an addendum report to provide clarifications in response to informal queries raised by the Environment Agency arising out of the First Caulmert Report. As well as addressing the specific queries it stated that:

After suggesting a condition that would preclude starting the development until a scheme to identify and monitor water features had been submitted and approved which required remediation of any identified adverse risk of deterioration to the water features, the Environment Agency concluded by stating that its previous comments, including those in its letter of 15 December 2017 still stood. As a matter of fact, the Agency’s proposed condition was adopted.

This response (like its predecessor) was not going so far as to assert that the excavation was likely to have significant effects on the environment. Rather it was saying that, in the opinion of the Environment Agency, there was a lack of assurance or certainty about the relevant spring mechanisms which meant that there was a consequential lack of certainty about whether there would be significant effects. Its position was summarised in the last paragraph set out above: in the opinion of the Environment Agency, the potential for adverse impact on the private supplies and wider water environment was

The Buss report explored the potential risks to water features local to the proposed development. It asserted that a robust understanding of the impacts of faulting in the bedrock on groundwater flow was required to assess the risk from quarrying activities. Its conclusions included that the Applicant had failed to present a firm understanding of water supply mechanisms for the spring-fed watercourses in the area; and that the Applicant had failed to show that the ancient woodland to the north of the site would not be affected by interception of perched water tables. Overall, Dr Buss submitted that there was a need to construct several further boreholes on the site and to collect data for at least one year and to quantify flows through key watercourses throughout the year.

A further response from the Environment Agency was dated 17 September 2018. It responded to the Buss report and specific questions raised by Dr Buss and set out in the response. Materially for present purposes, the Environment Agency wrote:

Once again, the Environment Agency did not express any opinion about whether it considered that significant adverse effects were likely. Nor did it register an objection to the scheme. Instead it referred to further investigation and monitoring as an ideal. What it stated clearly was its opinion that there remained uncertainty about the origins of the spring mechanisms; and that, because of that uncertainty, it was not possible to state with confidence whether mitigation measures were required or would be feasible or appropriate. There is therefore a major ambiguity in the Agency’s response because it is not self-evident that mitigation measures would only be required for likely significant effects: it would be reasonable for the Agency to propose mitigation measures against a residual risk that was not likely but which would be significant if it occurred, or (perhaps more tenuously) against a residual risk that was likely even if it was not expected to be significant or a main effect.

The Environment Agency wrote again on 19 September 2018 offering comments on the conditions then being proposed by the Defendant:

The Claimant relies upon the reference to cessation of quarrying being required in the event of an impact. That shows that the consequences for the Applicant if adverse effects eventuated could be serious; but it says nothing about likelihood. Once again, the Environmental Agency stopped short of saying that it considered significant effects to be likely, limiting itself to repeating that, in its opinion, the likelihood of potential impacts from quarrying had “not been fully assessed.” And, once again, it did not object to the proposal but suggested prior monitoring as “preferable”.

The Officer’s Report dealt with this issue at [6.63]-[6.73] which are set out in full in Annex A. It provided a reasonable summary of the evidence that was before the Committee. Prominent in that summary is the ES assessment that the development is unlikely to have an impact in the wider environmental context and that the proposals are not considered to lead to any significant impacts in relation to groundwater: see [6.65]. A reasonably detailed synopsis of the supplementary assessment is provided, with the conclusion that the proposed development (as amended) is not likely to have a significant impact on the identified water features: see [6.66]. These paragraphs provide the context for the summary of the Environment Agency’s position that is set out at [6.67-6.68]. That summary is, in my view, reasonable in drawing attention to the fact that the Agency had not lodged an objection but had pointed out that uncertainty about the spring mechanisms means that it is not possible to be “fully confident” about the potential risks to the identified water features. Their recommendation that a condition/legal agreement is imposed to secure mitigation including remediation “of any adverse impacts should this be necessary” is a fair reflection of what the Agency proposed. The Report does not suggest that the Agency’s recommendations are inconsistent with the Applicant’s evidence that the proposals are not expected to lead to any significant impacts in relation to groundwater – a point to which I will return.

Viewed overall, and adopting a fair approach to the terms of the Officer’s Report, the relevant section can be read as accepting the evidence that development is unlikely to have an impact in the wider environmental context and that the proposals are not considered likely to lead to any significant impacts in relation to groundwater but that any residual risk can be catered for by conditioning. Furthermore, the Officer’s Report sets out with reasonable clarity the information that entitled it to reach its conclusion that there was unlikely to be a significant (adverse) impact: see [6.65], [6.66]. That was evidence that it was entitled to take into account and accept, not least because it was not contradicted by the responses from the Environment Agency, whose observations went to the level of assurance. The submission that these observations meant that the Council could not properly conclude that significant adverse effects were not likely is not sustainable, because that is not what the Environment Agency said. Hence there was no inherent contradiction between the position being adopted by the Environment Agency and the conclusion reached by the Council on the basis of its acceptance of the Applicant’s evidence; and, to the extent that there was tension between the two, there was material upon which the Council was entitled to rely to support its conclusion. Adopting the criteria set out in [56] of Hardy there was information that was capable of meeting the requirements of Part II of Schedule 4, and the assessment of that information cannot be said to have been Wednesbury unreasonable.

As the passages from Jones cited above make clear, it is not necessary for all uncertainty to be resolved in order to achieve compliance with the requirements of Regulation 3(4). In my judgment this was a case that fell within the scope of the Council’s entitlement

I place some limited (but not determinative) weight upon the fact that the Environment Agency did not object to the application. I accept that it is possible that those acting for the Environment Agency did not have the principles established by Hardy in mind, though that would be surprising given the general level of competence to be expected of the agency and the notoriety of the Hardy line of authority. It seems more likely that the position being adopted by the Environment Agency reflected a proper understanding of Hardy, with the Agency drawing a proper distinction between questioning levels of assurance, which would not necessarily lead to an objection, and expressing the view that significant adverse effects were likely, which at least should have led to an objection. Supporting a regime that would make provision for any residual risk of adverse effects is consistent with this approach. If and to the extent that there was a conflict between the views expressed by the Environment Agency and the conclusion reached by the Council, the Officer’s Report provided a sufficiently cogent explanation for the Council’s conclusion.

For these reasons, the Claimant’s challenge on Ground 1 fails.

The Claimant accepts that this ground is parasitic upon, and stands or falls with Ground 1 because it relies upon the Council’s approach to the hydrology issues that formed the basis of criticism under Ground 1. In the light of my conclusions on Ground 1, I can therefore deal with this ground shortly.

The status of the development plan as a material consideration and the duty of the Council to have regard to it pursuant to s. 38(6) of the Planning and Compulsory Purchase Act 2004 are not in doubt: see R (Hampton Bishop Parish Council) v Herefordshire Council [2014] EWCA Civ 878, [2015] 1 WLR 2367 at [26]-[33]. Here the Claimant asserts a failure to have regard to Core Strategy Policy CS17 and SAMDev Policy MD17.

The Claimant accepts that the Officer’s Report evidently had these policies in mind. That acceptance is correct because the Report refers to them expressly and concludes that their requirements are met: see [6.2], [6.3], [6.38], [6.51], [6.57] and [7.11]. Furthermore, Conditions 32, 34, 35 and 37 were imposed to comply with policy CS17.

It cannot reasonably be argued that the Council’s conclusion, having expressly considered the policy provisions upon which the Claimant relies, was irrational or Wednesbury unreasonable.

The Claimant’s challenge on Ground 2 therefore fails.

NPPF paragraph 146 provides that certain forms of development, of which mineral extraction is one, “are … not inappropriate in the Green Belt provided they preserve its openness and do not conflict with the purposes of including land in it.”

In Samuel Smith Old Brewery (Tadcaster) v North Yorkshire County Council [2018] EWCA Civ 489 Lindblom LJ considered the precursor to paragraph 146 and gave guidance on the interpretation of “preserve its openness”:

… A realistic assessment will often have to include the likely perceived effects on openness, if any, as well as the spatial effects. Whether, in the individual circumstances of a particular case, there are likely to be visual as well as spatial effects on the openness of the Green Belt, and, if so, whether those effects are likely to be harmful or benign, will be for the decision-maker to judge. But the need for those judgments to be exercised is, in my view, inherent in the policy.

The first part of the question posed by the preamble in paragraph 90 – whether the development would "preserve" the openness of the Green Belt – cannot mean that a proposal can only be regarded as "not inappropriate in Green Belt" if the openness of the Green Belt would be left entirely unchanged. It can only sensibly mean that the effects on openness must not be harmful – understanding the verb "preserve" in the sense of

The Claimant submits that the Officer’s Report erred in two respects:

It is alleged that the Officer approached the question of “preservation” incorrectly because he did so on a mistaken understanding that “specific localised impacts” could not result in a failure to preserve openness. It is alleged that he thereby assumed that only “widespread” impacts could be harmful within the meaning of the policy as explained by Lindblom LJ in Samuel Smith Old Brewery (Tadcaster);

It is alleged that the Report does not include any discussion of whether the proposed screening measures themselves might have a harmful effect on the openness of the Green Belt.

The Council and Applicant respond that this amounts to just the sort of approach deprecated by Andrews J in Pagham, to which I have referred above at [21], and that a fair reading of the Officer’s Report shows this ground to have no merit.

Once again it is necessary to view the relevant passages of the Officer’s Report in context and in full to reach a fair understanding of what was being said. I therefore attach the relevant passages as Annex B. What follows is only a summary of some salient points.

[6.27] and [6.28] set out a correct summary of the relevant principles to be applied by the decision maker. Paragraph 146 of the NPPF (wrongly numbered 147 by an immaterial error) is identified as the material provision. [6.29] addresses the five purposes of the Green Belt identified by paragraph 134 of the NPPF. Most relevantly, in relation to “Test 3”, the Report identifies that the changes caused by the proposed development are reversible though there will be some permanent change that is “only apparent at a local level”; and it identifies the ability to support mitigation measures by conditions.

[6.30] then provides a reasonable summary of the relevant approach to the concept of “openness”, including appropriate references to spatial/physical and visual components. The criticised passage, in its immediate context, is: “A decision maker must determine whether the potential impacts of a proposal on openness would be sufficient to materially undermine the perception of ‘openness’. This is as distinct from identifying specific localised impacts.” Even in this limited context, it is apparent that what the Report conveys is the importance of taking a broader look at the potential impacts of a proposal rather than merely cataloguing and assessing specific impacts that might have a local effect but are not necessarily material when viewed in the overall context of a development. It is not saying that specific localised impacts can never undermine the perception of openness: it is merely saying that they do not necessarily do so. Looking at the wider context of the terms of the report, this is consistent with the approach taken in the rest of the relevant passages; and, in my judgment, it is a permissible and correct approach. That disposes of the Claimant’s first submission in support of Ground 3.

The report then follows a coherent and logical structure.

[6.31]-[6.33] address visual impacts, identifying evidence that they are not significant. It refers to the bunding and screening and concludes that the end result is typical of the local countryside in terms of character and proposed use; and that any residual effects on landscape and visual amenity would not “result in material impacts to the sense of openness of the Green Belt”: see [6.33];

The Report then considers the spatial dimension of openness at [6.34] and expresses the view that “the openness of the site over time will be preserved following the restoration works”;

[6.35] then gives separate consideration to the question of amenity. It refers again to the proposed mitigation works and reaches the overall conclusion that the function and sense of openness of the Green Belt would be preserved over time, so that the quarrying proposals are not inappropriate development, having express regard to paragraph 146 of NPPF.

The Report refers to the question of Landscape and Visual Impact at [6.58]-[6.59]. It refers at [6.58] to the LVIA conclusion that there would be no significant adverse visual effects after mitigation. [6.59] then refers expressly to the amendment of the scheme to include the 3m bunding and pre-coppiced willow planting about the site. It concludes that: “whilst there would be some residual impacts to landscape and visual amenities these would not be significant and the extent of any such impacts would be limited by the proposed mitigation works. Restoration would deliver benefits in landscape terms. Overall, the residual minor negative impacts would be outweighed by ‘great weight’ which the NPPF requires to be given to the benefits of mineral extraction, including to the economy (NPPF 205).”

While it is correct that the Report does not expressly ask the question whether the proposed screening measures might themselves have a harmful effect on the openness of the Green Belt, a fair reading of the relevant passages makes plain that the Report addresses the question of openness taking into account the screening measures that were proposed and concludes that there was no material residual impact or harm to the openness of the site. For the reasons set out in the relevant passages, that was a planning assessment and judgment which the Council was entitled to reach on the basis of the information available to it, as were the other conclusions expressed in the relevant passages of the Report to which I have referred above.

There is no material error in the Report’s approach and it is not reasonably arguable that the Committee would have been materially misled by the terms in which it was presented. The Claimant’s criticism under this Ground is, in my judgment, based upon an inappropriately hypercritical approach that has no proper part to play in a planning case such as this.

In refusing permission on this ground, Sir Ross Cranston said:

For these reasons, the renewed application for permission to pursue Ground 3 is refused. The Claimant’s proposed challenge under Ground 3 therefore fails.

S. 149 of the Equality Act 2010 ("Public sector equality duty") provides as follows:

eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share

Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—

remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;

take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;

encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.

The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities.

Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.

The relevant protected characteristics are—

The principles to be applied when consideration of the public sector equality duty were sufficiently summarised for present purposes by McCombe LJ at [25] of R (Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, as follows:

An important evidential element in the demonstration of the discharge of the duty is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements: R (BAPIO Action Ltd) v Secretary of State for the Home Department [2007] EWHC 199 (QB) (Stanley Burnton J (as he then was)).

The relevant duty is upon the Minister or other decision maker personally. What matters is what he or she took into account and what he or she knew. Thus, the Minister or decision maker cannot be taken to know what his or her officials know or what may have been in the minds of officials in proffering their advice: R (National Association of Health Stores) v Department of Health [2005] EWCA Civ 154 at [26 – 27] per Sedley LJ.

A Minister must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a ‘rearguard action’, following a concluded decision: per Moses LJ, sitting as a Judge of the Administrative Court, in Kaur & Shah v LB Ealing [2008] EWHC 2062 (Admin) at [23 – 24].

These and other points were reviewed by Aikens LJ, giving the judgment of the Divisional Court, in R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), as follows:

The public authority decision maker must be aware of the duty to have ‘due regard’ to the relevant matters;

The duty must be fulfilled before and at the time when a particular policy is being considered; iii) The duty must be ‘exercised in substance, with rigour, and with an open mind’. It is not a question of ‘ticking boxes’; while there is no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduces the scope for argument;

The duty is non-delegable; and

Is a continuing one.

It is good practice for a decision maker to keep records demonstrating consideration of the duty.

‘[G]eneral regard to issues of equality is not the same as having specific regard, by way of conscious approach to the statutory criteria.’ (per Davis J (as he then was) in R (Meany) v Harlow DC[2009] EWHC 559 (Admin) at [84], approved in this court in R (Bailey) v Brent LBC [2011] EWCA Civ 1586 at [74–75].)

Officials reporting to or advising Ministers/other public authority decision makers, on matters material to the discharge of the duty, must not merely tell the Minister/decision maker what he/she wants to hear but they have to be ‘rigorous in both enquiring and reporting to them’: R (Domb) v Hammersmith & Fulham LBC [2009] EWCA Civ 941 at [79] per Sedley LJ.

Finally, and with respect, it is I think, helpful to recall passages from the judgment of my Lord, Elias LJ, in R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin) (Divisional Court) as follows:

At paragraphs [77–78]

At paragraphs [89–90]

There are two limbs to the Claimant’s submission:

It is alleged that the Council’s reliance on national air quality levels was unlawful;

It is alleged that the Council erred in failing to impose a condition on the Permission that properly reflected the analysis in the Equality Impact Assessment (“EqIA”).

The Council and the Applicant submit that the Council suitably discharged its public sector equality duty and that the conditions imposed by the Council were appropriate and sufficient. The relevant conditions are 9, 10, 12a and 14. They rely upon the existence of a s. 106 Agreement as additional support for their position.

Two persons suffering from disability were identified and are the subject of this challenge:

The first was a seriously ill child with multiple conditions including chronic lung disease. Information was received from a Cardiac Nurse at the Hospital where the child was being treated, and from a Sister from the Community Nursing Service outlining his disabilities and highlighting the risk to the child of chest infections caused by air pollution. The child lived 90 m south of the edge of the landscaped edge of the quarry site and 130 m south of the proposed extraction limit of the quarry;

The second was an adult with a severe visual disability. He had only one functioning eye, which was vulnerable because of the absence of tear ducts or moisture to protect its surface. His treating Professor had written highlighting the undesirable risks that could arise from dust and fumes from the quarry and its operations. He lived some 280 m east of the proposed site access.

The prevailing wind meant that both homes were generally upwind of any quarry operations. They are situated in an area that is subject to arable farming, which may itself be a source of significant dust emissions.

The Applicant’s ES included a chapter on air quality dated October 2017. It did not address the risks for the two persons with disabilities. Further information was provided in May 2018. It identified National Air Quality Objectives for Particulate Matter and recorded that “DEFRA defines Air Quality Standards as “concentrations recorded over a given time period, which are considered to be acceptable in terms of what is scientifically known about the effects of each pollutant on health and on the environment.”” The information recorded indicated concentration levels and stated at [2.1.10]:

The further information proposed design modifications including revising Phases 4 and 5 and assessing dust levels as works progressed. It proposed that “full dust … monitoring will be undertaken as may be required throughout the operational period, which would include representation of [the disabled Child’s home]” (Footnote: ¹).

The Council conducted an EqIA, which was included as Appendix 3 to the Officer’s Report. Section 1 correctly identified the main thrust of s. 149 of the Equality Act and identified the purpose of the EqIA as being to ensure that discrimination does not occur by focusing on systematically assessing and recording the likely equality impact of an activity or policy on people with protected characteristics. Section 2 identified the two persons having the protected characteristic of disability with a brief summary of their condition and stated that “the main requirement of this assessment is to ensure that the planning decision by the Local Planning Authority takes appropriate [notice/regard] (Footnote: ²) of the two sensitive individuals and their particular health disabilities as they relate to the proposed quarrying development.” Section 3 outlined the Applicant’s response and proposals, which included the following:

The applicant has agreed to accept a ‘Grampian’ condition stipulating that there shall be no entry into Phase 5b and the area shall remain unworked unless air quality monitoring in the period prior to working of phase 5b confirms that relevant air quality targets can be fully met. … Phase 5b would not be proposed for quarrying development until year 7. The areas facing the garden centre and Ridge View would not be proposed for quarrying until year 6 (for phase 5b) and 10 (for phase 6b). This would allow plenty of time for air quality monitoring and to ensure dust control measures are fully mitigated;

The applicant has agreed to accept a condition requiring submission of a scheme of additional / enhanced deployment of dust mitigation measures during the initial site development stage, with particular emphasis on formation of the landscape screening bunds along the southern margin of the site. …;

The applicant has agreed to accept a condition requiring submission and implementation of a detailed air quality monitoring scheme with identification of trigger levels for action and a requirement for appropriate action in the event that identified trigger levels are approached. The scheme would have a particular focus on monitoring air quality along the southern boundary of the site nearest to Naboths Vineyard and Ridge View.

It is confirmed that the site haul road would be formed in a 2m cutting with a bund to the south. An existing hedgerow along the western margin of the access road would be retained, improved and allowed to grow up to 3m.

The applicant has also agreed to accept a planning condition committing to a formal procedure for dealing with validated amenity complaints, with requirements for investigation and mitigation where appropriate.”

The balance of the EqIA covered the Advice of the Council’s Regulatory Services Section, Geographic Characteristics of the Sensitive Properties and its Conclusion. The most relevant parts are set out in Annex C to enable them to be read in context. There are three main strands that appear:

First, the indicated levels would be “significantly below the national objective levels set in legislation”: see [4.2]; and “the background air quality is significantly below the level at which action would be required under air quality objectives. The report also predicts that the process contribution from the proposed quarry would be such that it would remain well below national action levels for air quality and within the range of variation of natural background events”: see [4.5]; and “the proposed quarry would not be likely to result in any material impact to local air quality given the availability of appropriate dust management controls”: see [6.3];

Despite the presence of the sensitive individuals (generally upwind of operations) and due to the additional phasing and positioning and bunding of the site access road, the Council’s Regulatory Services did not consider there to be any dust concerns from the proposed application;

The Applicant had proposed changes to the design of the quarry and operations. These could be reinforced by appropriate planning conditions.

The Officer’s Report dealt with this issue at [6.43]-[6.47] which, after identifying the representations and objections on behalf of the two sensitive persons, stated:

…

In conclusion, the 2 nearest receptor properties to the site contain individuals with particular susceptibilities to air quality issues and an equalities assessment covering these individuals has been included as Appendix 2. The concerns of the local community with respect to air quality are acknowledged. Regulatory Services are the Council’s technical advisors with respect to air quality and they have not objected. They are satisfied that the proposals, as amended, together with the recommended planning condition will ensure that the proposals do not lead to any unacceptable deterioration in local air quality and will protect the health of local residents, including those with particular vulnerabilities.”

The relevant conditions imposed by the Council were:

The developer has submitted detailed noise and dust management plans specific to these areas of the development having regard to section 4.4 of the report reference CE-CB-0617RP42 - FINAL by Crestwood Environmental dated 31^st May 2018 and the results of noise and dust monitoring in preceding phases;

The Local Planning Authority has provided written approval of the noise and dust management plans for the areas referred to in this condition.

The S. 106 Agreement provided as follows:

“Dust monitoring scheme” was defined as

By Clause 7.1 the Applicant covenanted to observe and perform the obligations set out in various schedules including Schedule 6;

Schedule 6, Part 2, was entitled “Dust Monitoring” and included the following obligations:

Prior to the Mineral Commencement Date to supply records of initial dust monitoring carried out.

To keep written records of the dust monitoring carried out in accordance with 5 above and to supply those records to the Council within 10 working days of a written request to do so.

In the event that the levels of dust arising from mineral extraction on the Land are detected above trigger levels identified in the Dust Monitoring Scheme to submit a written mitigation scheme within 10 working days to the Council for approval and any such scheme shall be deemed approved if the Council does not respond within 3 weeks of its submission.

To fully implement and maintain all mitigation measures approved in the scheme identified in 8 above to ensure that the triggers levels in the Dust Monitoring Scheme are not exceeded and to repeat the action in 8 above as necessary.”

The first limb of Ground 4 has no merit and is unarguable. As set out in the Applicant’s

Turning to the principles summarised at [62]-[63] above, it is clear that the Council gave suitably rigorous consideration of its duty so that there would be a proper appreciation on the part of the decision maker of the potential impact of their decision; and there was a proper and conscientious focus on the statutory criteria, with evidence that entitled the Committee to conclude that the quarrying operations would not be harmful for either of the two sensitive individuals. It is not arguable that the Committee’s decision was Wednesbury unreasonable.

Turning to the second limb of Ground 4, the conditions imposed by the Committee, taken in conjunction with the s. 106 agreement, were a reasonable and pragmatic set of measures to provide further safeguards for the sensitive individuals if, contrary to expectation, any dust related problem arose. The Claimant submits that neither the conditions nor the s. 106 Agreement identify what would be trigger points for action under those provisions and that therefore they are ineffective to the point of rendering the decision unlawful. Although it is correct that no trigger points are identified, I do not accept that this renders the provisions ineffective or unlawful. Conditions 9 and 10 require the establishment of dust monitoring schemes which must be approved by the Council. It is, in my judgment, obvious that such monitoring schemes would have to descend to the detail of what levels would trigger the need for action: otherwise they would be pointless. Similarly, the detailed dust management plans to be submitted before commencing Phase 5b would be useless and irrelevant unless, either singly or in conjunction with other documents/schemes, they specified the objectives of the management plan in terms of levels of pollution to be allowed and achieved. The Council referred to [70] of Trump International Golf Club Scotland Limited v The Scottish Ministers [2015] UKSC74 by way of analogy. In my judgment the analogy is apposite though rather tenuous: and it is not necessary to resort to authority in order to understand the purpose (express and implicit) of conditions 9, 10 and 12 in this case. Condition 14 provides additional effective protection, giving the Council power to require and enforce mitigation of a valid complaint regarding dust impact is received at any time during the development.

The position under the s. 106 Agreement is even clearer because [8] of Part 2 of Schedule 6 makes express reference to trigger levels in the Dust Monitoring Scheme submitted to and approved by the Council under Condition 9 of the Planning Permission. It is therefore clear beyond argument that trigger levels were to be identified, submitted and approved as part of the Condition 9 Dust Monitoring Scheme.

Standing back and looking at the conditions and s. 106 Agreement that the Council decided to require of the Applicant, they create a substantial and effective framework for ensuring that dust levels do not exceed satisfactory levels and, if they were to do so, for requiring appropriate mitigation measures to be taken. There is no arguable basis for setting the decision aside by reference to what they said or did not say.

In refusing permission on Ground 4, Sir Ross Cranston said:

For these reasons, the renewed application for permission to pursue Ground 4 is refused. The Claimant’s proposed challenge under Ground 4 therefore fails.

Ongoing hydrological monitoring;

Identification of trigger levels where action would be taken including, if necessary, cessation of working in a given area;

A requirement to take appropriate mitigation action in the event that trigger levels under ‘’2’ above are met;

Working not to proceed within the proposed bottom 2 metres of the excavation unless appropriate criteria are met with respect to groundwater monitoring, including maintenance of an appropriate freeboard above the permanent groundwater table.

Concern that the maximum groundwater level in the Principal Aquifer beneath the site may have been considerably underestimated as it is stated that no representative groundwater level data has been presented with the application. There is a chance that the water table may (in a wet winter) rise above the proposed base of the quarry at 106m AOD.

Concern that the catchments to springs are poorly defined and the larger springs may be from the Principal Aquifer and not from perched groundwater bodies. The very limited data that has been presented can be interpreted in different ways. There are licensed abstractions and a scheduled ancient monument downstream that are dependent on maintenance of the current flow regime. There is no baseline monitoring of flows. Without baseline data there is no chance that impacts can be assessed and adequate mitigation planned.

With respect to the ancient woodland the applicants have not provided any sort of rebuttal to the 50 m stand-off that is required by Natural England's Standing Advice. Therefore a precautionary approach must be taken, and at least 50 m standoff should be insisted upon.

It is not proposed to extend operations into the Principal Aquifer. The applicant is willing to accept a condition ensuring that a minimum freeboard is retained above the aquifer. A freeboard of 2m is suggested, using results of the proposed groundwater monitoring scheme. In practice however, the applicant’s hydrological data indicates that any freeboard is this unlikely to be less than 8m.

It is also considered that any assertion that all the springs, seepages etc. (including those at higher levels) being wholly related to the Principal Aquifer is not robust. Nevertheless, as the proposals provide for a minimum 2m freeboard and that extraction will not progress below circa 110mAOD until around 7 years in to the future, a detailed monitoring regime will ensure the protection of the Principal Aquifer and account for the future situation. The proposed planning condition and controls (attached as you previously provided to the EA), which builds upon the technical advice from the EA, is considered a more robust and practical approach, providing certainty throughout operations over the lifetime of the proposed development. The approach also allows for operations and the planning authority to respond accordingly to long term inoperation monitoring, through review and mitigation as may be necessary. This is a standard approach in relation to quarrying operations.

Given that the application makes no provision for working into the Principal Aquifer and that risk mitigation proposed in the original ES was that a minimum 2m freeboard should be retained below extraction, we would propose this become a planning control/condition upon any planning permission. This would also be a key ‘criteria’ to be included in any Hydrogeological Monitoring Scheme.

The Environment Agency has responded to the resident’s consultant’s objection. They acknowledge that uncertainty remains regarding perched aquifers and local springs and that ideally, some prior hydrological monitoring of these features should have been undertaken. They acknowledge however that the proposed hydrological monitoring condition will allow this information to be obtained. The officer notes in this respect that extraction would not exceed a depth of 109m AOD (i.e. within 3m of the proposed extraction base) until year 9. Hence, there is ample time for monitoring to take place to identify any potential implications for local hydrology and to take appropriate remedial action if necessary. The objector’s consultant also makes reference to Natural England adopting a buffer of 50m from the edge of ancient woodland. This is incorrect. The Natural England / DEFRA guidance ‘Ancient woodland and veteran trees: protecting them from development’ (updated 4/01/18) refers in ‘Mitigation’ to maintaining a minimum buffer of 15m. The applicant proposes a buffer of twice this width.

Given the availability of an appropriate planning condition and the absence of a formal objection from the Environment Agency it is not considered that a planning refusal on grounds of hydrology could be substantiated. It is concluded that any potential residual risks to local hydrology can be effectively managed so proposals can be accepted with respect to policies and guidance covering drainage and hydrology. (Core Strategy Policy CS18)

first, "to check the unrestricted sprawl of large built-up areas":

second, "to prevent neighbouring towns merging into one another"; iii. third, "to assist in safeguarding the countryside from encroachment"; iv. fourth, '"to preserve the setting and special character of historic towns'': and

Test 1: The proposals would not hinder the objective of preventing unrestricted sprawl of large built-up areas. The proposed use is temporary, albeit comparatively long-term and the site is not in close proximity to any large builtup areas.

Test 2: The proposals would not lead to neighbouring towns merging into one another. The site does not adjoin any towns and is adequately detached from the nearest settlements including Shipley and Pattingham.

Test 3: The proposals would not lead to any permanent encroachment of the countryside. The quarry scheme is temporary and there would be phased working and restoration so the area of disturbance would be much smaller than the total site area at any one time. The changes which the proposed development will result in are reversible. Whilst there will be a permanent change to the landform following quarrying this will only be apparent at a local level as the site is set in a topographic depression, and it will remain open countryside. Canebuff ridge above the site will remain as a significant feature in the local landscape. Conditions can be imposed to support the mitigation measures included in the application.

Test 4: The proposals would not impact adversely on the setting and special character of any historic towns. The nearest historic town of Bridgnorth would be unaffected by the development. The Council’s Conservation section has not objected.

Test 4 [SIC]: The proposals would not hinder the ability to assist in urban regeneration. Supply of mineral from the site to the applicant’s established local markets would be expected to assist with urban regeneration.

The concept of ‘openness’ incorporates spatial / physical and visual components. Spatially “openness" means the state of being free from built development, the absence of buildings - as distinct from the absence of visual impact. A decision maker must determine whether the potential impacts of a proposal on openness would be sufficient to materially undermine the perception of ‘openness’. This is as distinct from identifying specific localised impacts. A quarry scheme which has widespread impacts on the countryside would be expected to affect openness so would comprise inappropriate development. Conversely, a well-designed scheme where impacts have been minimised and which preserves openness and does not conflict with the purposes of including land within the Green Belt would not comprise ‘inappropriate development’ in the Green Belt. (NPPF 146)

The applicant’s visual appraisal confirms that there would be localised views towards the site but that the phased nature of the proposals and careful siting of plant and landscaping means that any residual visual impacts are not significant. The Council’s landscape consultant has reviewed the applicant’s LVIA and has accepted the methodology employed and the conclusions reached. The Council’s Conservation team has also not objected, concluding that any residual impacts on the setting of heritage assets would be localised and would amount to ‘less than substantial harm’. Visual and landscape effects are considered further in a succeeding section which has also been taken into account in assessing Green Belt policy.

The proposals may be apparent to the nearest properties during the initial development phase before peripheral screening is fully established. The plant site has been designed to be set down by 2m at a low point within the landscape and will use low-profile equipment @8m tall max. It will be surrounded by a 3m bund which will be planted with pre-coppiced willow. The tallest plant items will be oriented with their narrow profile facing sensitive receptors to the south west. Hence, any visibility of plant within the landscape will be limited and localised. The access road would be well

Whilst there would be a permanent change in landform it is not considered that this would affect the fundamental character of the landscape. The existing shallow topographic depression would be deepened and widened and there would be a steeper slope in front of parts of Canebuff wood. However, the depression would not be widely visible and the woodland ridge would remain as the dominant landscape feature. The character and proposed use of the restored landform is considered to be typical of the local countryside. It is not considered therefore that any residual effects on landscape and visual amenity would result in material impacts to the sense of openness of the Green Belt.

Regarding the spatial dimension of openness the proposals would temporarily affect openness due to the phased extraction and progressive restoration with significant landscaping works to be carried out, but the openness of the site over time will be preserved following the restoration works. Further, at any one time no more than @1/3 of the total operational quarrying area would be subject to disturbance with the remainder being either unworked or restored / under restoration. It is not considered that the proposals would lead to any coalescence with existing development in the local area.. The local area is rural in nature and the design and spatial isolation of the plant site would not lead to it being seen as a material encroachment with capacity to add to the built effect of existing development.

Amenity is considered in a separate section below which has also been taken into account in assessing Green Belt policy. The Council’s Regulatory Services section has not objected subject to the recommended conditions. It is not considered that the extent of any amenity impacts are likely to be sufficiently significant or widespread as to materially affect Green Belt openness. The proposed mitigation measures within the application are capable of being supported by detailed planning conditions to ensure that landscaping and other mitigation works proceed as intended for the duration of the proposed operations. Overall it is concluded that the function and sense of openness of the Green Belt would be preserved over time so the quarrying proposals would not comprise inappropriate development within the Green Belt and would comply with policy MD6. This is having regard to NPPF 146 which confirms that quarrying is not inappropriate in the Green Belt where the openness of the land is preserved and there is no conflict with the purpose and function of the Green Belt.