Opencast refusal quashed due to flawed reasoning

The secretary of state failed to provide intelligible reasons for rejecting a proposal to extract coal from an opencast mine in Northumberland, the High Court has ruled.

The county council had resolved to grant permission for extraction of up to three million tonnes of coal from a surface mine close to the coast. Following a call-in inquiry, an inspector recommended that permission be granted (DCS Number 200-007-444), concluding that the scheme’s national benefits clearly outweighed likely adverse impacts. The secretary of state overruled this recommendation, attributing very considerable weight to the proposal’s adverse impact on greenhouse gas emissions and climate change.

The developers asserted that the secretary of state had erred in his application of the two-stage balancing exercise required in paragraph 149 of the 2012 NPPF. In particular, they argued, he had failed to take into account the project’s significant biodiversity benefits and had not adequately explained how a proposal for coal required to meet the country’s energy needs could be rejected on the basis of the adverse impact of greenhouse gas emissions, unless the gap was filled by renewable energy or low-carbon sources.

Mr Justice Ouseley saw at least two ways of applying paragraph 149, neither of which would be unlawful. The first, he reasoned, requires a consideration of all environmental matters, including whether any impacts could be mitigated, before going on at the second stage to consider whether all impacts as mitigated, together with any benefits, provide national, local or community benefits justifying a grant of permission. The second requires the decision-maker, in stage two, to consider only the residual balance of any impacts that cannot be mitigated before balancing the "net harm" arising.

The judge found that the secretary of state had been incorrect in stating that he had taken the second approach. In his view, the secretary of state had not in fact assessed net harm because, on a close reading of the decision letter, all the harm arising in stage one had been brought forward into the planning balance required in stage two. He had also clearly ignored the biodiversity benefits to which the inspector had attributed significant weight. This was a flaw because stage two did not require all the harm to be weighed without all the benefits having clearly been identified, the judge held.

The judge noted that the secretary of state had clearly accepted all the inspector’s conclusions, including the need for the scheme to meet the country’s energy needs and the net saving in greenhouse gas emissions compared to the alternative of importing coal, yet failed to why it would result in a harmful increase in greenhouse gas emissions unless it was filled from other sources. He found that no reasons had been provided on this matter, nor any consideration as to how any unmet energy needs would affect the overall level of greenhouse gas emissions. The secretary of state’s reasons were wholly unclear and inadequate, he held.

HJ Banks & Co Ltd v Secretary of State for Housing, Communities and Local Government and Northumberland County Council

Date: 23 November 2018

Ref: [2018] EWHC 3141 (Admin)


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