Country
United Kingdom
Sources
InforMEA
Tagging
Land Use, Standing, Wetlands, Contract, Precaution, Prevention, Property, Permits, Licences, Constitutional
Abstract
The present case involved a site which had been used for mineral extraction. Hepworth Building Products Limited applied for planning permission to continue coal and clay extraction until 2005, then surrender various planning permissions and carry out specified restoration. The Hepworth proposal was the most attractive of a number of proposals for the site and the Planning Authority resolved to grant planning permission. The Blackfordby and Boothscorpe Action Group Limited (comprising local residents) sought to judicially review the Planning Authority's decision and a key element of the challenge was the status of the Waste Management Licensing Regulations 1994 in relation to planning decisions - the Group stated that the Planning Authority had failed to give lawful effect to the relevant objectives contained in paragraph 4 of Schedule 4 of the Regulations. The Group argued that the Authority had considered whether the risks to human health and the environment should be kept to an acceptable level rather than seeking to minimise or avoid the risks altogether as the Regulations required it to do. The local action group had formed a company one week before the Council resolved to grant planning permission. The evidence was that the incorporation took place to achieve a proper and formal legal structure to administer the action group’s funds and manage its affairs quickly and easily and to enable the group to represent the company in a democratic manner (as local residents could join). The defendants contested the company’s standing but the judge, dealing first with the issue raised by the respondents as to the standing of the applicant, held that an incorporated action group had a sufficient interest to mount a challenge to a grant of planning permission which affected its members despite the fact that, unlike its members, it did not have a direct interest in the affected land. Richards J found that there were advantages to incorporation which should not be withheld from aggrieved persons who wished to mount a challenge of this kind. The case thus concluded that there was no issue in principle with a company composed of those who themselves have a relevant interest. The judge left open the question whether it should be allowed standing if it had been formed for "the sole purpose" of avoiding costs consequences. The application was dismissed. It was held that the objectives should be taken into account or had regard to as objectives. However, just because other considerations exist that have been taken into account in reaching the decision to prevent the objectives from ultimately being achieved then that does not mean that the decision has been made without the objectives in mind. The Court confirmed that the correct interpretation was that the objectives should be taken into account or had regard to as objectives as ends at which to aim (as stated above). It is important to note that the applicant was not arguing that the Article 4 duty was absolute - rather that it was more onerous than would be the case if it simply fell to be taken into account as a material consideration. The Court referred to the judgement in Kirkman and stated that the Court of Appeal in that case had concluded that by taking the relevant objectives into consideration the local authority had complied with its Article 4 obligations. What matters is that the objectives should be taken into consideration (or had regard to) as objectives, as ends at which to aim. If a local planning authority understands their status as objectives and takes them into account as such when reaching its decision, then it seems to me that the authority can properly be said to have reached the decision "with" those objectives. The decision does not cease to have been reached with those objectives merely because a large number of other considerations have also been taken into account in reaching the decision and some of those considerations militate against the achievement of the objectives.