“Executive Summary The application is on balance considered to be a departure from the Norfolk Minerals and Waste Local Development Framework (2011) and the North Norfolk District Council Local Development Framework Core Strategy (2008) on the grounds that there are minor adverse residual landscape effects in the immediate context and a moderate adverse residual effect on the character of site, which is located in the Norfolk Coast National Landscape (formerly Area of Outstanding Natural Beauty) and afforded the highest level of protection in relation to landscape and scenic beauty. It is also the case that there is a lack of a robust Site Selection Assessment update following the original back in June 2017 in order to be certain no other sites outside of the National Landscape that meet policy requirements is available. 12 objections (of which 4 were from the same third party) have been received in relation to the proposed development and as such the application has been referred to the Planning (Regulatory) Committee for determination in accordance with the Council’s Constitution given there are more than 3 objections from third parties, unresolved objections from statutory consultees and the application is considered a departure for the development plan and therefore the application cannot be determined under delegated powers. The key issues are: • Inappropriate location of the development in a National Landscape • Whether the proposal is considered to be in the public interest • Inadequate landscape mitigation for the development type • The suitability of the highway improvement works • Whether suitable sites are available outside of the National Landscape”
“3.21 Considering the policies set out above it is considered on balance that the principle of locating the proposed HWRC in the Norfolk Coast National Landscape is a departure from the development plan given that adverse effects will be felt on the National Landscape and the overarching ambition of the plans is to protect and enhance these areas. The assessment of the impact on the Norfolk Coast National Landscape is dealt with in detail at Section B: Landscape & Visual Impact in this report. The applicant carried out an initial Site Selection Assessment based on a defined search criteria set out in the Planning Statement back in June 2017, which was provided as part of the application and looked at two available sites (Land at Cromer Road, East Runton and Land at Northrepps, Cromer) after EDT Committee sought further work on a replacement for the current HWRC. However, the two sites identified were discounted. The applicant has also alluded to a further Site Selection Assessment being carried out in 2019 with 15 land agents that brought forward three potential options (all seemingly in the National Landscape), but the CPA have not been provided with a copy of this assessment to fully assess. 3.22 The CPA, on balance, cannot categorically say that no land was available outside of the National Landscape and on land that would meet NMWLDF (2011) Policy CS6 at the time of the assessments that would cause less harm than the site considered under this application to meet the requirements of NMWLDF (2011) Policy DM6 and NNLDFCS (2008) EN1. Whilst the applicant has set out the timeline of the development of the proposal, the CPA would have expected a more recent site selection exercise to have been carried out and submitted given the one submitted was 6 years prior to the application being lodged in order to fully comply with policy.”
“Policy EN 1 Norfolk Coast Area of Outstanding Natural Beauty and The Broads The impact of individual proposals, and their cumulative effect, on the Norfolk Coast AONB, The Broads and their settings, will be carefully assessed. Development will be permitted where it; • is appropriate to the economic, social and environmental well-being of the area or is desirable • for the understanding and enjoyment of the area; • does not detract from the special qualities of the Norfolk Coast AONB or The Broads; and • seeks to facilitate delivery of the Norfolk Coast AONB management plan objectives. Opportunities for remediation and improvement of damaged landscapes will be taken as they arise. Proposals that have an adverse effect will not be permitted unless it can be demonstrated that they cannot be located on alternative sites that would cause less harm and the benefits of the development clearly outweigh any adverse impacts. Development proposals that would be significantly detrimental to the special qualities of the Norfolk Coast AONB or The Broads and their settings will not be permitted.”
“3.29 The proposed development is situated within the Norfolk Coast National Landscape (formerly Area of Outstanding Natural Beauty) which sees the highest level of protection as set out in paragraph 182 and 183 of the NPPF (2023) and is situated within the Wooded Glacial Coastal Ridge landscape character type in the NNLCA (2021) and Wooded Parkland in the NCILG. The Countryside and Public Rights of Way Act (2000) as amended requires public bodies to also have regard to the purpose of conserving and enhancing natural beauty in the National Landscape. The principal policy dealing with the protection of the National Landscape is NNLDFCS (2008) Policy EN1: Norfolk Coast Area of Outstanding Natural Beauty and The Broads and Policy EN2: Protection and Enhancement of Landscape and Settlement Character. The policies consider individual proposals and their cumulative effect on the National Landscape and will permit development if it is appropriate to the economic, social and environmental wellbeing of the area or desirable for the understanding and enjoyment of the area, does not detract from the special qualities of the National Landscape and seeks to deliver the Management Plan objectives. However, proposals can still be permitted if it can be demonstrated that they cannot be located on alternative sites that would cause less harm and the benefits of the development clearly outweigh any adverse impacts in relation to Policy EN1. Although Policy EN2 is clear that proposals should also demonstrate that their location, scale, design, and materials protect and conserve and where possible enhance the setting.”
“4.1 The proposed development is considered to be acceptable and although on balance it is considered a departure from the development plan the decision is finely balanced due to the location of the proposal within the Norfolk Coast National Landscape and adverse landscape impacts being outweighed by the public interest of the development. The proposal is considered to provide considerable public benefits in terms of providing a modern HWRC that is fit for purpose for the residents it serves taking account of the projected population growth, whilst providing significant highway improvements with the creation of a new T-junction and associated TRO and biodiversity net gain above and beyond the legal requirement. If a suitable facility was not provided that improves upon the existing facility there is reason to assume that impacts could be felt on the National Landscape caused by a lack of access by the community to a HWRC that is fit for purpose and result in greater instances of fly tipping and may result in the County Council not carrying out its duty to provide such suitable facilities under theEnvironmental Protection Act 1990 . 4.2 Significant weight should be given to the fact that a large portion of North Norfolk and its Coast is located within the Norfolk Coast National Landscape with the exception of main settlement areas such as Cromer and Sheringham. Given that NMWLDF (2011) Policy DM6: Household Waste Recycling Centres accepts that these facilities cannot always be located on land meeting Policy CS6: General Waste Management Considerations, some weight should be given in the planning balance to the location of a facility between Cromer, Holt and Sheringham having to be situated within the National Landscape in order to be suitably located given the sites available at the time when the applicant was considering the requirements of the scheme. Although, emerging policy W2 of the NMWLP (2024) directs development away from the National Landscape, which must be given increasing weight given the stage of the plan. If the site were to be situated within a Main Settlement such as the centre of Sheringham or Cromer, the facility could have a detrimental impact on the ease of access to these areas for tourists and locals alike if the location relied on access via popular tourist travel routes, particularly in the summer months when use of the HWRC facility is higher and given that main settlements are the location for the growth in the district emerging plan. 4.3 It is accepted that the design of such projects is a lengthy process. However, the CPA are not satisfied that a robust Site Selection process has taken place to meet NMWLDF (2011) Policy DM6 and NNLDFCS (2008) EN1 to allow development in the National Landscape on land that does not meet NMWLDF (2011) Policy CS6. Whilst the CPA have been provided with an assessment dating back to June 2017, this was carried out some 6 years prior to the application being lodged. The CPA would have expected a more recent assessment to have been submitted in order to fully comply with policy so we can be satisfied no land was available on sites outside of the National Landscape and/or on land meeting policy CS6. However, the CPA do consider there is sufficient public interest in providing the improved facility when considered in relation to the highways improvement works, landscape mitigation and location of the existing HWRC. Particularly given the impact that could be had on the National Landscape if a suitable facility is not provided. The CPA agree the current facility is not fit for purpose and as such a new facility would be in the public interest as if one was not provided the National Landscape could potentially suffer from increased instances of fly tipping due to the lack of an easily accessible and modern HWRC given the queuing issues with the current site and lack of vehicle access. The CPA also see the location of an HWRC as a geographical assessment to meet catchment needs given that it is a public facility and due to the extent of land the AONB covers a suitable site would have a high probability of needing to have a high probability of needing to be located in the sensitive landscape. 4.4 Whilst the decision is finely balanced, it is considered that the revisions to the Landscape Mitigation Plan to allow for a greater mix of species to screen the proposed HWRC from view north and east of the site and the provision of woodland planting to the eastern end of Holt Road that is being stopped up which will provide partial screening from the A148, that the proposal would provide some mitigation to partially tackle the impact of the proposal on the visual appearance of the facility in the National Landscape in a proportionate and measured manner given the overriding public interest for the facility. Although it is accepted there is still an adverse impact, it should be noted that views are already seen of the existing HWRC from the north and east along Britons Lane and the fact that this can be conditioned to be returned to woodland will ensure it will remain that only one industrial development is situated in the area given that policy CS6 of the NMWLDF (2011) does not afford all waste sites the flexibility that is given to HWRC’s given the County Council’s requirements to provide them. … 4.6 The proposed development is, on balance, considered acceptable and there are no material considerations why it should not be permitted. Accordingly, full conditional planning permission is recommended.”
“there is a possibility of relocating the centre within the Gresham Gravel site. It would be useful to understand the timeframe involved, so that we can consider the phasing of our excavations. Perhaps we can arrange a date for us to have an initial telephone conversation?”
“65. In my view the consideration of alternatives was legally adequate. It is accepted that a legal duty to consider alternatives did arise. However, what investigations are undertaken and the adequacy of the information on alternatives involves the exercise of planning judgement. The level of investigation of alternative sites, both in terms of the quantity of sites considered and the detail in relation to each individual site, can vary enormously. This will be a function of the nature of the proposal, the scale of the negative impacts and the relevant need. So, as but an example, a proposal for a nuclear power station is likely to involve a lengthy and very detailed assessment of alternative sites (and technologies) because of the very significant impacts of the development. That will be at one end of the spectrum of the level of required consideration of at one end of the spectrum of the level of required consideration of alternatives. 66. It has to be remembered that investigation of other sites will take both time and expense. Such time and expense and thus the investigation of alternatives, must be proportionate to the potential harm from the development. Therefore the level of that investigation will depend on the scale of the potential negative impacts on the development, the prospective benefits of the alternative sites and the level of need/urgency for the development. Given that these are necessarily issues of planning judgement, in my view the Court should only intervene and say the consideration of alternatives was legally inadequate if the approach of the Local Planning Authority is Wednesbury (Associated Provincial Picture Houses Ltd. v Wednesbury Corporation[1948] 1 KB 22 ) irrational. Essentially, the issue is one of the scope of necessary investigation, which is similar to a Tameside challenge. 67. Considering the caselaw set out above, it is apparent that each case is highly context specific. Therefore in Forge Fielda high level of scrutiny of the alternative site was required because there were two competing sites for one planning permission. That is not the case here. 68. Here, the negative impacts of the proposal were limited as is explained in detail in the OR. I set this out in more detail under Ground Five below. The need for the new site is explained in the OR and accepted. The weight attached to the need and to the timing of the development was again a matter of planning judgement. The OR acknowledges the limitations of the alternatives exercise, and is clear that more could have been done. It expressly acknowledges that there could be other alternative sites, because the assessment had been limited. It also concludes that the proposal is for this reason a departure from the Development Plan. The judgement in the OR, accepted by members, was that the consideration of alternatives was sufficient on the facts of the case. In my view that conclusion was not irrational. … 70. Finally, I turn to the application to admit new evidence and the EBQ site. This site was not before members and is not referred to in the OR. Mr Zieja accepts that he did not know about the existence of this site. 71. In my view this issue must come back to the scope of the duty to consider alternatives. The OR makes clear to members that the Interested Party’s site assessment was inadequate to satisfy the requirements of policy that alternative sites had been fully assessed. Members therefore knew that it was possible that there were other alternative sites, including ones that were outside the NCNL. It was open to them to find that there was a departure from policy and other considerations did not justify the grant of permission, but they did not reach that conclusion. Rather, in light of the very limited impact of the proposal and the need, they determined that no further assessment of alternatives was required. In my view that was a conclusion open to them, and it follows that the possibility of another potential alternative site does not change the analysis. 72. As I have set out above it is for the same reason that I refuse permission to amend the SFG. The possibility of a site outside the NCNL was contemplated in the OR and therefore by the LA. Therefore the error in Mr Zieja’s mind between the two sites is not material.”
“29.Section 70(2) of the Town and Country Planning Act 1990 (“the Act”) required the council in determining the application to have regard to the development plan and “any other material consideration”
“17. It is one thing to say that consideration of a possible alternative site is a potentially relevant issue, so that a decision-maker does not err in law if he has regard to it. It is quite another to say that it is necessarily relevant, so that he errs in law if he fails to have regard to it … 18. For the former category the underlying principles are obvious. It is trite and long-established law that the range of potentially relevant planning issues is very wide (Stringer v Minister of Housing and Local Government[1970] 1 WLR 1281 ); and that, absent irrationality or illegality, the weight to be given to such issues in any case is a matter for the decision-maker (Tesco Stores Ltd v Secretary of State for the Environment and West Oxfordshire District Council[1995] 1 WLR 759 , 780). On the other hand, to hold that a decision-maker has erred in law by failing to have regard to alternative sites, it is necessary to find some legal principle which compelled him (not merely empowered) him to do so.” 31. I referred to the discussion of this issue in a different context by Cooke J in the New Zealand Court of Appeal, in CreedNZ Inc v Governor General[1981] 1 NZLR 1172 , 182 (adopted by Lord Scarman in the House of Lords in In re Findlay[1985] AC 318 , 333-334, and in the planning context by Glidewell LJ in Bolton Metropolitan Borough Council v Secretary of State for the Environment and Greater Manchester Waste Disposal Authority(1991) 61 P & CR 343 , 352): “26. Cook J took as a starting point the words of Lord Greene MR in the Wednesbury case[1948] 1 KB 223 , 228: ‘If, in the statute conferring the discretion there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters.’ He continued: ‘What has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the authority as a matter of legal obligation that the court holds a decision invalid on the ground now invoked. It is not enough that it is one that may properly be taken into account, nor even that it is one which many people, including the court itself, would have taken into account if they had to make the decision ...’ (Emphasis added) 27. In approving this passage, Lord Scarman noted that Cook J had also recognised, that - ‘… in certain circumstances there will be some matters so obviously material to a decision on a particular project that anything short of direct consideration of them by the ministers … would not be in accordance with the intention of the Act.’ (In re Findlay at p 334) 28. It seems, therefore, that it is not enough that, in the judge’s view, consideration of a particular matter might realistically have made a difference. Short of irrationality, the question is one of statutory construction. It is necessary to show that the matter was one which the statute expressly or impliedly (because ‘obviously material’) requires to be taken into account ‘as a matter of legal obligation’.” 32. Mutatis mutandis, similar considerations apply in the present case. The question therefore is whether under the openness proviso visual impacts, as identified by the inspector, were expressly or impliedly identified in the Act or the policy as considerations required to be taken into account by the authority “as a matter of legal obligation”, or alternatively whether, on the facts of the case, they were “so obviously material” as to require direct consideration.” “17. It is one thing to say that consideration of a possible alternative site is a potentially relevant issue, so that a decision-maker does not err in law if he has regard to it. It is quite another to say that it is necessarily relevant, so that he errs in law if he fails to have regard to it … 18. For the former category the underlying principles are obvious. It is trite and long-established law that the range of potentially relevant planning issues is very wide (Stringer v Minister of Housing and Local Government[1970] 1 WLR 1281 ); and that, absent irrationality or illegality, the weight to be given to such issues in any case is a matter for the decision-maker (Tesco Stores Ltd v Secretary of State for the Environment and West Oxfordshire District Council[1995] 1 WLR 759 , 780). On the other hand, to hold that a decision-maker has erred in law by failing to have regard to alternative sites, it is necessary to find some legal principle which compelled him (not merely empowered) him to do so.” “26. Cook J took as a starting point the words of Lord Greene MR in the Wednesbury case[1948] 1 KB 223 , 228: ‘If, in the statute conferring the discretion there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters.’ He continued: ‘What has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the authority as a matter of legal obligation that the court holds a decision invalid on the ground now invoked. It is not enough that it is one that may properly be taken into account, nor even that it is one which many people, including the court itself, would have taken into account if they had to make the decision ...’ (Emphasis added) 27. In approving this passage, Lord Scarman noted that Cook J had also recognised, that - ‘… in certain circumstances there will be some matters so obviously material to a decision on a particular project that anything short of direct consideration of them by the ministers … would not be in accordance with the intention of the Act.’ (In re Findlay at p 334) 28. It seems, therefore, that it is not enough that, in the judge’s view, consideration of a particular matter might realistically have made a difference. Short of irrationality, the question is one of statutory construction. It is necessary to show that the matter was one which the statute expressly or impliedly (because ‘obviously material’) requires to be taken into account ‘as a matter of legal obligation’.”
“36. Returning to the present case, it seems to me impossible to say that there is anything in the statute or the relevant policies which expressly or impliedly required the Inspector to consider alternatives, particularly as none had been identified. The emphasis of s.78 is on consideration of the particular application in question. The statutory provisions and policies relating to the National Park and Conservation Areas required special regard to be paid to their protection, by they fell short of imposing a positive obligation to consider alternatives which might not have the same effects. That is left as a matter of planning judgment on the facts of any case. 37. I accept that, if there had been specific national or local policy guidance requiring consideration of alternatives, failure to have regard to it might provide grounds for intervention by the court.”
“66. In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of the Criminal Inquiries Compensation Board case. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been “established”, in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal’s reasoning.”
“42. The principles on which the court will act when criticism is made of a planning officer’s report to committee are well settled. To summarize the law as it stands: (1) The essential principles are as stated by the Court of Appeal in R. v Selby District Council, ex parte Oxton Farms [1997] E.G.C.S. 60 (see, in particular, the judgment of Judge L.J., as he then was). They have since been confirmed several times by this court, notably by Sullivan L.J. in R. (on the application of Siraj) v Kirklees Metropolitan Borough Council[2010] EWCA Civ 1286 , at paragraph 19, and applied in many cases at first instance (see, for example, the judgment of Hickinbottom J., as he then was, in R. (on the application of Zurich Assurance Ltd., t/a Threadneedle Property Investments) v North Lincolnshire Council[2012] EWHC 3708 (Admin) , at paragraph 15). (2) The principles are not complicated. Planning officers’ reports to committee 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 (see the judgment of Baroness Hale of Richmond in R. (on the application of Morge) v Hampshire County Council[2011] UKSC 2 , at paragraph 36, and the judgment of Sullivan J., as he then was, in R. v Mendip District Council, ex parte Fabre (2000) 80 P. & C.R. 500, at p.509). Unless there is evidence to suggest otherwise, it may reasonably be assumed that, if the members followed the officer’s recommendation, they did so on the basis of the advice that he or she gave (see the judgment of Lewison L.J. in Palmer v Herefordshire Council[2016] EWCA Civ 1061 , at paragraph 7). The question for the court will always be whether, on a fair reading of the report as a whole, the officer has materially misled the members on a matter bearing upon their decision, and the error has gone uncorrected before the decision was made. Minor or inconsequential errors may be excused. 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 – that the court will be able to conclude that the decision itself was rendered unlawful by that advice. (3) Where the line is drawn between an officer’s advice that is significantly or seriously misleading – misleading in a material way – and advice that is misleading but not significantly so will always depend on the context and circumstances in which the advice was given, and on the possible consequences of it. There will be cases in which a planning officer has inadvertently led a committee astray by making some significant error of fact (see, for example R. (on the application of Loader) v Rother District Council[2016] EWCA Civ 795 ), or has plainly misdirected the members as to the meaning of a relevant policy (see, for example, Watermead Parish Council v Aylesbury Vale District Council[2017] EWCA Civ 152 ). There will be others where the officer has simply failed to deal with a matter on which the committee ought to receive explicit advice if the local planning authority is to be seen to have performed its decision-making duties in accordance with the law (see, for example, R. (on the application of Williams) v Powys County Council[2017] EWCA Civ 427 ). But unless there is some distinct and material defect in the officer’s advice, the court will not interfere.” (1) The essential principles are as stated by the Court of Appeal in R. v Selby District Council, ex parte Oxton Farms [1997] E.G.C.S. 60 (see, in particular, the judgment of Judge L.J., as he then was). They have since been confirmed several times by this court, notably by Sullivan L.J. in R. (on the application of Siraj) v Kirklees Metropolitan Borough Council[2010] EWCA Civ 1286 , at paragraph 19, and applied in many cases at first instance (see, for example, the judgment of Hickinbottom J., as he then was, in R. (on the application of Zurich Assurance Ltd., t/a Threadneedle Property Investments) v North Lincolnshire Council[2012] EWHC 3708 (Admin) , at paragraph 15). (2) The principles are not complicated. Planning officers’ reports to committee 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 (see the judgment of Baroness Hale of Richmond in R. (on the application of Morge) v Hampshire County Council[2011] UKSC 2 , at paragraph 36, and the judgment of Sullivan J., as he then was, in R. v Mendip District Council, ex parte Fabre (2000) 80 P. & C.R. 500, at p.509). Unless there is evidence to suggest otherwise, it may reasonably be assumed that, if the members followed the officer’s recommendation, they did so on the basis of the advice that he or she gave (see the judgment of Lewison L.J. in Palmer v Herefordshire Council[2016] EWCA Civ 1061 , at paragraph 7). The question for the court will always be whether, on a fair reading of the report as a whole, the officer has materially misled the members on a matter bearing upon their decision, and the error has gone uncorrected before the decision was made. Minor or inconsequential errors may be excused. 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 – that the court will be able to conclude that the decision itself was rendered unlawful by that advice. (3) Where the line is drawn between an officer’s advice that is significantly or seriously misleading – misleading in a material way – and advice that is misleading but not significantly so will always depend on the context and circumstances in which the advice was given, and on the possible consequences of it. There will be cases in which a planning officer has inadvertently led a committee astray by making some significant error of fact (see, for example R. (on the application of Loader) v Rother District Council[2016] EWCA Civ 795 ), or has plainly misdirected the members as to the meaning of a relevant policy (see, for example, Watermead Parish Council v Aylesbury Vale District Council[2017] EWCA Civ 152 ). There will be others where the officer has simply failed to deal with a matter on which the committee ought to receive explicit advice if the local planning authority is to be seen to have performed its decision-making duties in accordance with the law (see, for example, R. (on the application of Williams) v Powys County Council[2017] EWCA Civ 427 ). But unless there is some distinct and material defect in the officer’s advice, the court will not interfere.”
“56. And fourthly, Mr Flanagan and Mr Cameron, having rightly conceded that the officer’s report was in this respect misleading, urged us to act on the distinction between an officer’s advice that is “significantly”, or, as Mr Cameron put it, “seriously”, misleading and advice that is misleading but not “significantly” so. That there is such a line to be drawn is clear from the authorities. Where it is drawn in any particular case will always depend on the context and circumstances in which the misleading advice was given and the possible consequence of it. In this case, in my view, there can be no question but that the mistake made by the officer in his report was, in its context and circumstances and in its possible consequence, sufficiently misleading to invalidate the committee’s decision. It was “significantly”, or “seriously”, misleading on a material matter, and it was left uncorrected before the decision was taken. In the context of the duty in the Listed Buildings Act s.66(1), the committee was misinformed on the consultation of a national amenity society, which had been an objector to a similar proposal, and whose views on this application the council had chosen to seek and might have made a difference to its decision. In taking this misinformation into account, it could be said to have proceeded on the basis of an error of fact. But I think the unlawfulness here is better described as the taking into account of an immaterial consideration.”