Hartleyburn Parish Council v Secretary of State for Communities and Local Government & Ors [2013] EWHC 1650 (Admin)

[2013] EWHC 1650 (Admin)Case No CO/9843/2012
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue (sitting in Leeds)
The Court House
Oxford Row
Venue Leeds LS1 3BGDate 14 June 2013
Before
His Honour Judge Behrens sitting as a Judge of the High Court in Leeds
Between
HARTLEYBURN PARISH COUNCILClaimant(1) SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendants(2) NORTHUMBERLAND COUNTY COUNCILDefendant(3) HM PROJECT DEVELOPMENTS LTDDefendant
Annabel Graham Paul (instructed by Richard Buxton) for ClaimantAndrew Fraser-Urquhart (instructed by Weightmans LLP) for Third DefendantHearing Hearing dates: 31 May 2013
Judgment
[1]Abbreviations In this judgment I shall adopt the following abbreviations: LP The Tynedale District Local Plan RSS The North East of England Plan Regional Spatial Strategy to 2012 NPPF The National Policy Planning Framework AONB An Area of Outstanding Natural Beauty NCC Northumberland County Council HPC Hartleyburn Parish Council HMPD HM Projects Developments Ltd SSCLG The Secretary of State for Communities and Local Government TCPA The Town and Country Planning Act 1990 SPA Special Protection Area SAC Special Area of Conservation SSSI Site of Special Scientific Interest.[2]Introduction On 7 August 2012 Mr Clive Sproule, an Inspector appointed by SSCLG, allowed an appeal under s 78 TCPA by HMPD against the refusal on 5 May 2011 by NCC of planning permission. The planning application related to land adjacent to Halton Lea Farm, Brampton Northumberland CA8 7LS. The proposed development was for the opencast extraction of coal with restoration of the land to the purpose for which it was normally used prior to extraction, and for this restoration to include woodlands, ponds and wetland. The effect of the Inspector’s decision was that planning permission for the development was granted subject to 44 conditions. The decision followed a public enquiry which sat for 9 days between 15 and 31 May 2012. The reasons for the decision are contained in 211 paragraphs in the Decision Letter. It will be necessary to consider those reasons in more detail later in this judgment.[3]On 17 September 2012 HPC issued an application under s 288 TCPA against the Inspector’s decision. In summary there were 4 grounds of challenge to the decision:[1]That the Inspector misinterpreted or interpreted irrationally LP Policy NE 15.[2]That the Inspector erred in his view that the national benefits outweighed the likely impacts to such an extent as to justify the grant of planning permission. He failed to carry out the balancing exercise envisaged by paragraph 149 of the NPPF.[3]That the Inspector’s conclusion that the potential harm to lapwings and the temporary diminishment of habitat cannot be justified and/or is inadequately reasoned.[4]That the inquiry was procedurally unfair in relation to the Inspector’s treatment of Dr van Steenis. In the light of the witness statement filed by the Inspector this ground is no longer pursued and I shall say no more about it. On 28 December 2012 HMPD issued an application for summary judgment under CPR Part 24 on the ground that the appeal had no real prospect of success and that there was no other compelling reason for a trial. It will, of course, be necessary to consider the grounds of the summary judgment application in detail. However the main thrust of HMPD’s case is that all three challenges are thinly disguised challenges to the planning merits and do not give rise to a point of law.[5]On 11January 2013 HPC filed a brief response to the summary judgment application in which it contends that the three remaining grounds of challenge are well arguable and have realistic prospects of success.[6]On 1 March 2013 I made a reciprocal protective costs order capping the Claimant’s liability for costs globally at £10,000 and the Defendants’ liability for the Claimant’s costs at £20,000. The order was made on the papers but I gave the parties the right to apply for an oral hearing. No application was made.[7]On 10 May 2013 HPC made an application that the summary judgment application be struck out and/or joined with the substantive application and for an increase in the costs it could recover from £20,000 to £35,000. On 22 May 2013 I directed that the summary judgment application should remain in the list and the application for the increase in the protective costs order should be dealt with at the same time. At the hearing it was agreed between Mrs Graham Paul and Mr Fraser-Urquhart that there was no need to increase the £20,000. In the event that the application for summary judgment succeeded HPC’s liability for costs would be capped at £10,000 in accordance with the earlier order. In so far as it failed HMPD would be liable for HPC’s costs of the application which would be dealt with outside the capped sum of £20,000.[8]This judgment is accordingly concerned with the summary judgment application. HMPD and HPC have been represented by Counsel. I immediately acknowledge with gratitude the full and helpful skeleton arguments and the clear oral submissions I have received from them. SSCLG has not appeared though, as I understand it, he supports HMPD’s application. He has, however made written submissions on the protective costs application. In the circumstances it is not necessary to deal with those submissions. 3. The Law 3.1 Planning Law[9]There is little or no dispute between Counsel as to the relevant planning law which is set out very fully in Mr Fraser-Urquhart’s skeleton argument. In those circumstances it is possible to deal with the law without extensive citation of authority. As will be apparent much of this section of the judgment is taken from that skeleton argument. In summary:[1]Under s 288(1)(b) TCPA any person aggrieved by a decision of SSCLG in a planning appeal under s 78 TCPA may apply to the High Court on two specified grounds including the ground that the action “is not within the powers of the Act”. An application under section 288 may only be brought “on a point of law” and it is well-established that the grounds correspond to the grounds on which a claim for judicial review may be brought: [see for example, Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320 and per Carnwath LJ in E v SSHD [2004] QB 1044 paras 40 – 43.] Even if the court were to find an error of law by a decision maker it nevertheless retains a discretion not to quash in the absence of real prejudice from that error.[2]It is a fundamental principle of planning law that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision. Matters of planning judgment are within the exclusive province of the Secretary of State (per Lord Hoffman in Tesco Stores Ltd. v. Secretary of State for the Environment [1995] 1 WLR 759 at 780).[3]The proper approach to a decision letter is to look somewhat broadly at the findings of the Inspector, his reasoning and his decisions, not sentence by sentence at the minutiae but at the real sense and basic content of the decision to which he has come (ELS Wholesale (Wolverhampton) Limited v. Secretary of State for the Environment [1988] 56 P&CR 69).[4]The reasons given for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal controversial issues’, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision (South Bucks District Council v. Porter (No. 2) [2004] 1 WLR 1953, per Lord Brown).[5]If there is a dispute about the meaning of the words included in a policy document which a planning authority is bound to take into account, it is for the court to determine as a matter of law what the words are capable of meaning. (Tesco Stores Ltd v Dundee CC (SC(Sc)) [2012]UKSC 13) The approach to be taken must bear in mind the words of Lord Reed at paragraph 19:
“Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statue or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse…Nevertheless, planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean.”
[6]In any case where an expert tribunal is the fact finding body the threshold of Wednesbury unreasonableness is a difficult obstacle for a claimant to surmount. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he is reaching a series of planning judgments. Since a significant element of judgment is involved there will usually be scope for a fairly broad range of possible views, none of which can be categorised as unreasonable. Moreover, the Inspector’s conclusions will invariably be based not only on the evidence heard, but also on the impressions received on the site inspection. Against this background an applicant alleging an Inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgment faces a particularly daunting task (see R (Newsmith Stainless Ltd.) v. Secretary of State for the Environment, Transport and the Regions [2001] EWHC 74 (Admin) paragraphs 6 to 8. 3.2 Summary Judgment[10]It was common ground that an application for summary judgment in an application under section 288(1)(b) TCPA is unusual but permitted under the rules. Both Counsel referred me to the notes at paragraph 24.2.3 (p 687) of the 2013 White Book. It was common ground that in order to succeed HMPD had to show that HPC’s challenges to the Inspector’s decision had no realistic prospect of success.[11]It is, of course to be noted that this is not a case where there will be any additional evidence, nor will there be any cross-examination at the trial. Thus I am in as good a position to decide the issues as any trial judge. Indeed the only reason that this hearing was not treated as the substantive hearing was that SSCLG’s counsel was not in a position to prepare properly for it. If the application fails I understand that the substantive hearing would be likely to take place some time in the autumn. 4. The Appeal Decision[12]In opening the application Mr Fraser-Urquhart started by summarising the Decision Letter.[13]In paragraph 15 the Inspector identified the three main issues in the appeal as being the effect of(a) the character and appearance of the area and on the setting of the AONB;(b) the SPA, SAC and the SSSI and on protected species; and,(c) the living conditions of people in the locality in relation to matters that include visual impact, light emission, mines gas, flooding, ground stability, noise and dust.[14]In paragraphs 16 – 25 he dealt with character and appearance. Paragraphs 19 – 24 are central to the first ground raised by HPC. In paragraph 19 the Inspector pointed out that the appeal site lies just outside the AONB and drew attention to paragraph 115 of the NPPF which provides that great weight should be given to conserving the landscape and scenic beauty in an AONB. In paragraphs 20 and 21 the Inspector accurately summarised LP Policy NE15, which I shall set out below. He commented (in paragraph 22) that the third part of NE 15 does not reflect the weight to be attached to mineral extraction as set out in paragraph 144 of the NPPF.[15]In paragraph 24 he concluded: Paragraph 142 of the Framework is clear that minerals are essential to support sustainable economic growth and our quality of life. In this respect and for the purposes of the third part of LP Policy NE15, if the extraction of coal were to meet an identified need in a sustainable manner (which are matters dealt with below), such a development could be seen to be in the national interest. Additionally and within this context, although coal could be mined in other locations, land remediation is an integral part of this proposal and ground conditions on the appeal site could not be addressed by opencast works elsewhere.[16]In paragraphs 30 – 34 the Inspector considered the effect of the opencast mining. He noted that natural England had no objection to the proposed effect on the landscape subject to the submission of detailed proposals on restoration whereas there were objections from the North Pennines AONB partnership.[17]In paragraph 33 he noted: The ES found only one significant adverse effect on landscape character during the operational phase. This is in relation to the indirect moderate-substantial adverseeffects of perimeter soil mounding on the neighbouring AONB. Beneficial effects are noted to result from the landscaping proposed through planting and habitat creation.[18]There are further comments on the landscape character in paragraphs 40, 42 and 43: 40. The locality…is undoubtedly a tranquil place…This tranquillity is experienced…with the AONB…The appeal proposal would have an adverse effect on the tranquillity of the locality by increasing the actual and perceived levels of activity within it. However, this effect would be temporary.42. The importance of coal extraction is recognised within the Framework, along with the national interest in protecting the landscape and scenic beauty of the AONB. In this case the temporary period of extraction would be 36 months, with restoration and aftercare to follow…in many of the most significant views of the appeal site, the disturbed ground would be perceived as limited when seen within the context of the landscape around it.43. Accordingly and given the phasing proposed, the proposal would not be expected to result in a discernible and stark border of landscape character and quality between the AONB and the land around Halton Lea Gate.[19]In paragraphs 44 to 61 he considered in detail the restoration objectives concluding in paragraph 61 that: These matters provide a high degree of confidence that the appeal site would be restored with the ecological and landscape mitigation works proposed.[20]In paragraphs 62 to 64 he expressed his conclusion regarding character and appearance. As these conclusions from the basis of the first ground of challenge it is convenient to set them out in full:62. There is inter-visibility between the appeal site and the AONB and this is reflected in the Character Assessment’s conclusion regarding the sensitivity of the landscape to opencast development. Due to the nature, scale and location of the appeal scheme, it would have an impact on the landscape in this area which is highly valued by many who made representations to the inquiry.63. The appeal proposal would have a moderate-substantial adverse impact that would be temporary and related to soil mounds prior to vegetation becoming established. However, the identified landscape effects need to be considered with reference to the circumstances of the appeal site, its position within this landscape and the scale of the setting, along with the scope of suggested planning conditions and the executed unilateral undertaking.64. While the appeal scheme would have a significant temporary effect on landscape, for the reasons above the evidence in this case has failed to show that the appeal proposal would be unacceptably harmful to the landscape qualities of the AONB and the rural character of the locality. Therefore and in respect to the first main issue, for the reasons above the appeal scheme would not conflict with RSS Policy 31, CS policy NE1, MLP policies EP3 and EP19, LP policy NE15, the SPD, and the relevant parts of the Framework.[21]In paragraphs 65 to 71 the Inspector considers ecology concluding that the appeal scheme would be unlikely to have a significant effect on the SPA/SAC or be likely to damage the special interest features of the SSSI.[22]In paragraphs 73 to 83 the Inspector considers the position of lapwings. He recognises that lapwings are noted to be a species of high conservation concern where the breeding population has fallen by 50%. Lapwings are addressed in the proposal by the provision of wader mitigation in the fields round the appeal site in the development period. In paragraphs 79 to 81 the Inspector said:79. These doubts lead to the County Council’s predicted loss of 12.5 to 14.5 breeding pairs from the site, although the appellant maintains that they can be accommodated in the mitigation areas if smaller territories in the 0.4-0.8 ha range are viable. Whether these birds, if displaced, would breed elsewhere is not known. Suitable habitat is present in the locality and such a displacement would be within the context of an estimated 4,000 breeding pairs of lapwings in Northumberland, 11,500 in Cumbria and 11,240 in County Durham. It is also noted that the annual lapwing loss/predation rate of approximately 70% would be likely to be a much more significant factor in the viability of breeding populations.80. It is accepted by both main parties that this would be an impact of moderate significance, which reflects the conclusion regarding the potential local impact of lapwing habitat loss within ES Table 11.8. Residual impacts are predicted, in ES Table 11.8, to be negative, but of minor to neutral significance depending on the rate of soil macrofauna re-colonisation and habitat restoration.81. Extended aftercare and wader mitigation areas are addressed by Schedule 2 of the unilateral undertaking. This mitigation would include a grazing regime that is currently absent from the management of habitats on the appeal site.[23]In paragraphs 84 to 90 the Inspector deals with other species and other ecological matters such as water quality. He expressed his conclusion on ecology in paragraphs 92 and 93:92. The proposed development would provide 3.8 ha of new woodland within the appeal site and approximately 25 ha of grassland managed for breeding wading birds outside the application area. It would also replace over 2km of existing hedges that are noted to be in poor condition and create new ponds. These matters would meet the objectives of the Framework in relation to the conservation and enhancement of the natural environment. This provides some weight in favour of the appeal scheme.93. It is possible that some breeding pairs of lapwing would be displaced by the development. However, for the reasons above this potential harm, and any temporary diminishment of habitat for other species, would not be significant or unacceptable. There are a number of potential benefits from the appeal proposal. I find the scheme complies with LP Policies NE19 and NE20, and on balance, it also accords with CS Policy NE1 and RSS Policy 33.[24]The Inspector deals with visual impact in paragraphs 95 to 97. He concluded that there would be a degree of harm from the visual impact conflicting with MLP policy EP19 but it would be restricted to the operational phases of the scheme. The visual impact comprised topsoil storage mounds, 5m in height prior to vegetation. The visual impact has been characterised as substantial adverse and moderate substantial adverse.[25]It is not necessary to refer in any detail to paragraphs 98 to 141 of the Decision Letter. In those paragraphs the Inspector considered amongst others such matters as flooding, ground stability, noise and dust.[26]In paragraphs 142 to 147 the Inspector dealt with the need for the coal. In paragraph 143 he referred to paragraphs 142, 144 and 149 of the NPPF suggesting that a need for coal would be a national benefit. In paragraph 144 he drew attention to the small contribution to UK annual coal consumption that would be contributed by the proposal. He drew attention paragraphs 144 and 115 of the NPPF: Nevertheless, the Framework accords great weightto a number of matters which include the benefits of mineral extraction in paragraph 144, and conserving landscape and scenic beauty in paragraph 115. Landscape and scenic beauty are dealt with above, and the great weight to be attributed to the benefits of mineral extraction remains in this case.[27]In paragraphs 161 to 168 the Inspector considered whether the proposal would be a sustainable form of development concluding: 168. The Framework is unambiguous that the planning system should support sustainable economic growth and that this should attract significant weight in planning decisions. Any temporary harm that may result from the proposal, for example in relation to visual impact, needs to be balanced with the overall objectives of the three dimensions to sustainable development. The proposal would mine a finite resource. However, given the current need for coal importation, the low overburden to coal ratio in this location, and the wider economic benefits, extraction of coal at the appeal site would be a form of sustainable development.[28]In paragraphs 183 to 196 the Inspector considered the planning balance. He pointed out that decisions require a balance to be struck between the possible detrimental effects of the development and factors that weigh in favour of the proposal. He drew attention to the “considerable level of local opposition to the proposal”.[29]In paragraphs 186 and 187 he summarised the position thus:186. In this case the potential benefits of mineral extraction include: the provision of energy and reducing the carbon footprint of coal used in this country; the potential reinforcing of landscape features, even though this would take some time to be fully realised, and the County Council questions whether it would result in habitat improvements; additional rights of way and a new footbridge; a Community Trust Fund; economic benefits, which may be for the most part experienced in the wider economy; and, land remediation and stabilisation. There is no certainty regarding the future submission of a planning application for an equestrian centre in this location, and therefore the stated intention to do so attracts little weight in this case. Nevertheless, the remediation and stabilisation works would benefit users of the land by addressing existing hazards.187. The appeal scheme would be a temporary development that would be subject to planning conditions to address the potential effects of the scheme. It has not been suggested that these would be likely to include cumulative impacts and the appellant’s evidence has sought to address all matters that may have an effect. To some extent the suggested conditions would be underwritten by provisions within the executed unilateral undertaking that would ensure the restoration and aftercare of the site in unexpected circumstances.[30]He expressed his conclusions in paragraphs 195 and 196:195. Planning harm can occur regardless of the scale of the settlement involved. In this case significant planning harm has only been demonstrated in relation to the visual impact of the development and matters have been found that clearly weigh in favour of the proposal.196. With reference to paragraph 149 of the Framework, the appeal scheme would be a sustainable form of development that attracts great weight in relation to the identified benefits of the mineral extraction proposed. These matters and the associated planning policy compliance clearly outweigh the matters that weigh against it, including the identified harm and policy conflict.[31]In paragraphs 197 to 210 he discussed the conditions to be attached to the permission. In paragraph 211 he formally allowed the appeal. 5. LP Policy NE 15[32]Policy NE 15 is central to the first ground of HPC’s application. It provides:[1]Priority will be given to the protection and enhancement of the landscape qualities of the North Pennines Area of Outstanding Natural Beauty as identified on the Proposals Map, when considering proposals for development.[2]Development within or adjacent to the AONB which adversely affects the special scenic quality of the AONB will not be permitted.[3]Any large scale development within or adjacent to the AONB will only be permitted, when it is proven to be in the national interest and there are no alternative sites in less sensitive areas. 6. The NPPF[33]The NPPF sets out the government’s planning policies for England and how they are expected to be applied. Planning law requires that applications for planning permission must be determined in accordance with the development plan,unless material considerations indicate otherwise.The NPPF must be taken into account in the preparation of local and neighbourhood plans, and is a material consideration in planning decisions. It was common ground before me that the Inspector was correct in his construction of paragraph 215 which provides that [after March 2013]: … due weight should be given to relevant policies in existing plans according to their degree of consistency with this framework (the closer the policies in the plan to the policies in the Framework, the greater the weight that may be given).[34]A number of paragraphs of the NPPF were referred to including:[1]Paragraph 14 which provides for a presumption in favour of sustainable development which should be seen as a golden thread running through both plan making and development. It also provides that where policies are “out of date” planning permission should be granted unless: … any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole. In the very recent decision of Colman v SSCLG [2013] EWHC 1138 (Admin) Kenneth Parker J held that any inconsistency between the policies relevant to the determination of the appeal and the NPPF would render them “out of date” and cause the approach in paragraph 14 of the NPPF to be engaged.[2]Paragraph 115 which provides: Great weight should be given to conserving landscape and scenic beauty in National Parks, the Broads and Areas of Outstanding Natural Beauty, which have the highest status of protection in relation to landscape and scenic beauty. The conservation of wildlife and cultural heritage are important considerations in all these areas…[3]Paragraphs 142 and 144 which deal with the extraction of minerals including the instruction to local authorities to give great weigh to the benefits of mineral extraction including to the economy[4]Paragraph 149 which provides: Permission should not be given for the extraction of coal unless the proposal is environmentally acceptable, or can be made so by planning conditions or obligations; or if not, it provides national, local or community benefits which clearly outweigh the likely impacts to justify the grant of planning permission. 7. Ground 1 - Policy NE 15[35]Mrs Graham Paul’s first argument is contained in paragraphs 5 to 27 of her skeleton argument. In summary she submits that the Inspector was wrong to find that the development would not conflict with LP Policy NE 15.[36]She relies on the final sentence in paragraph 64 where the Inspector has held that there is no conflict with Policy NE 15. She submitted that it is clear from other parts of the decision that there must have been a conflict with limbs 2 and 3 of the policy Limb 2[37]Mrs Graham Paul submits that Limb 2 of Policy NE 15 is absolute. It is common ground that the development is adjacent to the AONB. If it adversely affects the “special scenic quality” of the AONB the development will not be permitted. She points to the finding in paragraph 63 that there would be a temporary moderate- substantial impact relating to soil mounds prior to vegetation becoming established. She submits that this clearly shows that this impact demonstrates a breach of limb 2. She also submits that the test applied by the Inspector in paragraph 64 whether “the appeal proposal would be unacceptably harmful to the landscape qualities of the AONB and the rural character of the locality” was the wrong test and not the test referred to in limb 2 of Policy NE 15.[38]Mr Fraser-Urquhart sought to answer these submissions in a number of ways. First he submitted that the decision must be read as a whole. Paragraph 64 of the Decision Letter has to be read with paragraphs 33, 40, 42, 43 and 63. He stressed the temporary nature of the adverse effect on the landscape. He drew attention to the crucial words of Limb 2 – “adversely affects the special scenic quality of the AONB”. He submitted that the Inspector was entitled to hold in those circumstances that there was no breach of Policy NE 15.[39]Second he referred me to the six principles to be found in the judgment of Glidewell LJ in Bolton MBC v SS and Greater Manchester Waste Disposal Authority (1991) 61 P & C R 343, 353 - 354: 1. The expressions used in the authorities that the decision maker has failed to take into account a matter which is relevant, which is the formulation for instance in Forbes J.'s judgment in Seddon Properties , or that he has failed to take into consideration matters which he ought to take into account, which was the way that Lord Greene put it in Wednesbury and Lord Denning in Ashbridge Investments , have the same meaning. 2. The decision maker ought to take into account a matter which might cause him to reach a different conclusion to that which he would reach if he did not take it into account. Such a matter is relevant to his decision making process. By the verb “might,” I mean where there is a real possibility that he would reach a different conclusion if he did take that consideration into account. 3. If a matter is trivial or of small importance in relation to the particular decision, then it follows that if it were taken into account there would be a real possibility that it would make no difference to the decision and thus it is not a matter which the decision maker ought to take into account. 4. As Hodgson J. said, there is clearly a distinction between matters which a decision maker is obliged by statute to take into account and those where the obligation to take into account is to be implied from the nature of the decision and of the matter in question. I refer back to the Creed N.Z. case. 5. If the validity of the decision is challenged on the ground that the decision maker failed to take into account a matter in the second category, it is for the judge to decide whether it was a matter which the decision maker should have taken into account. 6. If the judge concludes that the matter was “fundamental to the decision,” or that it is clear that there is a real possibility that the consideration of the matter would have made a difference to the decision, he is thus enabled to hold that the decision was not validly made. But if the judge is uncertain whether the matter would have had this effect or was of such importance in the decision-making process, then he does not have before him the material necessary for him to conclude that the decision was invalid.[40]Mr Fraser-Urquhart emphasised that the Decision Letter has to be read as a whole. The Inspector has considered the adverse effect on the AONB in considerable detail and with considerable care. He has formed a planning judgment on its effect which is recorded in paragraphs 63 and 64 of the Decision Letter. If, contrary to the Inspector’s view the adverse effect is in fact a breach of Policy NE 15 then that additional fact is a matter of small importance within principle 2 of Glidewell LJ’s classification. It follows that the decision is not flawed.[41]Third he submitted that if Mrs Graham Paul’s construction of Limb 2 is correct it is plainly in conflict with the NPPF. On Mrs Graham Paul’s construction any adverse affect (however temporary or however trivial) on the special scenic quality of the AONB must result in a refusal of planning permission. This is plainly inconsistent with paragraphs 14 and 149 of the NPPF which require a balancing exercise between the adverse impacts and the benefits of the application to be assessed against the policies in the NPPF. Accordingly he submitted that under paragraph 215 of the NPPF very little weight should be given to the fact (if Mrs Graham Paul is correct) that there is a breach of Policy NE 15.[42]I do not find it necessary to decide whether Mrs Graham Paul or Mr Fraser-Urquhart is correct in their construction of the Inspector’s decision on Limb 2. However as this is an application for summary judgment it is right that I should record that I think it is arguable (that is to say I think the argument has a realistic prospect of success) that Mrs Graham Paul’s argument is correct. The use of the word “Therefore” at the beginning of the second sentence of paragraph 64 suggests that the Inspector has applied the balancing test required by paragraph 14 or 149 of the NPPF rather than following the words of Limb 2.[43]However, to my mind, Mr Fraser-Urquhart’s second and third arguments are unanswerable. The inspector has identified (in detail) the adverse impact caused by the development to the landscape. He has formed a planning judgment as to the effect of that impact and come to the conclusion it is not unacceptably harmful to the landscape qualities when weighed against the benefits. It is to be noted that in paragraph 196 of the Decision Letter the Inspector there is a clear finding on this point. If, and in so far as Policy NE 15 is in conflict with this, then in my judgment it is a matter of very little weight (see paragraph 215 of the NPPF) and within principle 2 of Glidewell LJ’s classification.[44]I am in as good a position to assess this as the trial judge. It is not a case where any additional evidence or material is to be filed. In my view there is no realistic possibility that HPC will be able to meet this argument. It follows that the application for summary judgment succeeds under this head. Limb 3[45]Mrs Graham Paul submitted first that the Inspector erred in finding that there was a national need. Second she submitted that the Inspector’s reasoning in paragraph 24 of the Decision Letter did not meet the County Council’s argument “the Appellant has not addressed ‘alternative sites in less sensitive areas’. One cannot avoid that requirement by arguing that this coal arises on this site alone, because coal also arises elsewhere and this policy requires the merits of this location relative to others where this occurs to be considered. The discussion of alternatives in the ES concerned alternative approaches to the use or development of the site and was apt to address Policy NE15”[46]She submitted that paragraph 24 does not address the issue of whether there were alternative sites for coal extraction in areas less sensitive than adjacent to the AONB. The Inspector failed to reach any conclusion, or any rational conclusion, on whether the proposal complied with that part of Policy NE15. Hence he either misinterpreted the requirements of Policy NE15 or irrationally applied the policy to make the development comply.[47]I have to confess that I have some difficulty in understanding this submission. As I understood it there was no evidence at the Inquiry of any alternative sites anywhere. Mrs Graham Paul submitted that it was for HMPD to prove that there were no such sites. As they did not do so there was necessarily a breach of Limb 3.[48]In paragraph 22 of the Decision Letter the Inspector noted that Limb 3 was inconsistent with the NPPF. He was plainly right about that. The fact that there may or may not be open cast coal elsewhere does not affect the planning merits of the application. It is to be noted that Policy NE 15 does not identify how far away this alternative source of coal has to be.[49]To my mind the Inspector has adequately dealt with the argument about alternative sites in paragraph 24 of the Decision Letter. However if and to the extent that the contrary is arguable there is no answer to the point that Policy NE 15 is inconsistent with the NPPF, and that accordingly any breach of the policy is a matter of little weight and within principle 2 of Glidewell LJ’s classification.[50]It follows that the application succeeds under this head. 8. Ground 2 – paragraph 149 of the NPPF[51]Mrs Graham Paul deals with this in paragraphs 32 – 42 of her skeleton argument. She submits that the Inspector erred by treating a meeting of a need for coal as a national benefit that would justify granting planning permission in any given case. That cannot be a rational interpretation of paragraph 149 of the NPPF. She submits that the Inspector failed to carry out the necessary balancing exercise under paragraph 149 or that if he did his conclusion was irrational. In paragraphs 37 and 38 she submits:37. It was solely on the basis of these generic statements that the Inspector granted planning permission in spite of the environmental unacceptability of the development. No balancing exercise, or no meaningful balancing exercise, was carried out to justify why the ‘national benefit’ purportedly provided by this development ‘clearly outweighed’ the environmental unacceptability for the purposes of paragraph 149 of the NPPF. Rather, the Inspector appears to have adopted the view that all coal extraction developments must be approved, simply on account of their contribution to the national need, however insignificant.38. That is an error of law and policy interpretation and application. It is not simply a question of weight, as is argued by D3 (Summary Judgment application at [10]), since no proper consideration was given to the balancing exercise at all.[52][The generic statements referred to by Mrs Graham Paul were(i) that the NPPF affords great weight to the benefits of mineral extraction,(ii) describes shallow mined coal as an example of mineral of local and national importance and(iii) does not set a lower limit on the site that would supply the national need. She makes the point that the proposed extraction would make a very small contribution to the UK annual coal consumption.][53]Mr Fraser-Urquhart submits that these are in effect thinly disguised complaints about the planning merits. He reminds me of the authorities summarised in section 3.1 above and in particular the observations of Sullivan J in Newsmith cited above. He points out that the Inspector has plainly carried out a balancing exercise. In paragraph 196 he has carried out a balancing exercise under paragraph 149. In paragraph 186 he has set out the benefits of the scheme.[54]I agree with Mr Fraser-Urquhart’s submissions. In my view this complaint is indeed a thinly disguised complaint about the planning judgment of the Inspector. He has, in my view, plainly carried out a balancing exercise. He has set out the benefits of the scheme and its disadvantages. There is no realistic possibility of HPC scaling the hurdle identified by Sullivan J and persuading a Court that it is Wednesbury unreasonable. 9. Ground 3 – lapwings[55]Mrs Graham Paul deals with this ground in paragraphs 43 to 55 of her skeleton argument. It will be recalled that the Inspector had dealt with lapwings in paragraphs 73 to 83 and 92 to 93 of the Decision Letter. In paragraph 93 he concluded that the displacement of some breeding pairs of lapwings would not be significant or unacceptable.[56]Mrs Graham Paul submits that this conclusion is either irrational or that the Inspector’s reasons are inadequate. In paragraph 45 she summarises the evidence before the Inspector: 1) There would be a moderate adverse impact on breeding lapwings as a result of displacement from the site . 2) After mitigation, residual impacts are still predicted in the ES to be negative, but of minor to neutral significance depending on the rate of soil macrofauna re-colonisation and habitat restoration . Doubts remain as to whether the desired territory sizes can be achieved . 3) Whether the displaced birds would breed elsewhere is not known . 4) The Inspector does not appear to dispute NCC’s view that it will not be possible to realise no net loss of breeding lapwings.[57]She submits that this evidence renders the Inspector’s view irrational and or that he should have given better reasons if he wanted to come to a conclusion that the impact to the lapwings was not significant.[58]The starting point, as Mrs Graham Paul recognises, is that this ground faces the daunting task referred to by Sullivan J in Newsmith Stainless. The Inspector has formed a planning judgment on the effect of lapwings and the court should be very slow to interfere with it. Furthermore Mrs Graham Paul has been selective in her summary of the evidence before the Inspector. She has, in particular, left out the factual information contained in paragraph 79 of the Decision Letter and the benefits outlined in paragraph 92. Whilst there may be a loss of 12.5 – 14.5 breeding pairs from the site this has to be seen in the context of 26,700 breeding pair in Cumbria, Northumberland and County Durham. Furthermore the will be the gain of 3.8 ha of new woodland within the appeal site and 25 ha of grassland managed for breeding wading birds outside the application area.[59]The inspector had to balance the loss of 12.5 – 14.5 breeding pairs from the site against the benefits. It is to my mind not in the least surprising that the Inspector reached the conclusion that he did in paragraph 93. There is no realistic possibility that HPC will be able to surmount the hurdle it faces in order to challenge it.[60]Equally, as it seems to me that the reasons are perfectly adequate. When the section is read as a whole it is quite clear that the Inspector has set out in detail the benefits of the scheme as against the loss of relatively few pairs of lapwings. He has noted the number of other breeding lapwing in the neighbourhood. He has formed a planning judgment that the loss is not significant or unacceptable. To my mind that conclusion and the reasoning is not open to challenge.[61]In the result this ground fails. 10. Conclusion[62]For the above reasons this application for summary judgment succeeds and HPC’s challenge to the Inspector’s decision is dismissed.