H J Banks & Co Ltd v Secretary of State for Housing, Communities and Local Government; (1) Northumberland CC; (2) Friends of the Earth Ltd; (3) Save Druridge

摘要

This is one of the last High Court victories for Nathalie Lieven QC before her appointment as a High Court judge. All in all, it is quite a big one. The Secretary of State's decision contained two fatal errors. First, the benefits of biodiversity gains were omitted from the balancing exercise. Paragraph 149 of the NPPF (2012, now para. 211 of the NPPF 2018) contained a two-stage approach: was the proposal environmentally acceptable and, if not, did national, local or community benefits outweigh the likely impacts? Acceptable is one of those artfully vague expressions in policy, capable of covering the beneficial or harmless impact, but also a harmful impact which is justified by benefits. In the coal extraction policy, the possibility of benefits exceeding the harm does more naturally fall into the second stage question. Biodiversity benefits had been considered by the Inspector and the Minister when deciding whether the environmental effects were acceptable at the first stage. They considered that the environmental harm significantly outweighed the environmental benefits. At the second stage the Secretary of State rightly considered environmental harm, but wrongly left the environmental benefits out of account. Omitting them at that point could not be right on any approach to the policy. All of the harm and public benefits had to be considered at the second stage. The Secretary of State's argument in court was that the environmental impact had been netted off at the second stage and so those benefits had been included. Mr Justice Ouseley disagreed.