H.J. Banks & Co. v. Secretary of State for Housing, Communities, and Local Government

Summary:

H. J. Banks & Co. Ltd challenged the Secretary of State for Housing, Communities, and Local Government under section 288 of the Town and Country Planning Act 1990 for denying a planning permission for a coal mining project. The High Court quashed the denial on two grounds, including the Secretary’s inadequate explanation of how preventing the project would reduce greenhouse gas emissions.

The Northumberland County Council granted planning permission to H. J. Banks & Co. Ltd for a surface mine for the extraction of coal, sandstone, and fireclay in the Highthorn area of southeast Northumberland. The Secretary called the application in for his own determination and after a public inquiry declined to grant permission for the project, giving considerable weight in his decision-making to the adverse effects of greenhouse gas emissions. H. J. Banks & Co. Ltd challenged the denial on two grounds. The first ground alleged an error in the Secretary’s interpretation of balancing considerations under paragraph 149 of the National Planning Policy Framework (NPPF). The second ground alleged that the Secretary wrongly weighed greenhouse gas emissions resulting from burning coal at power plants and that the Secretary acted inconsistently with previous practice in how the Secretary considered these emissions.

The High Court quashed the decision on grounds one and two. On ground one, the High Court determined that the Secretary had not lawfully weighed the relative costs and benefits of tourism and biodiversity as required under the balancing test of paragraph 149 of the NPPF and related regulations. On ground two, the High Court found that the Secretary provided insufficient reasoning to explain why emissions would be reduced if the coal project was denied because there was not adequate explanation of how power generation would be replaced by less carbon-intensive sources rather than imported coal. The Court found that the Secretary provided inadequate reasoning for how national policy to decarbonize was inconsistent with granting the permission.

At Issue: The legal reasoning required to deny a coal extraction project on the basis of adverse effects from associated greenhouse gas emissions