Hilltop Experiences Limited, R (on the application of) v Norfolk County Council

This is an appeal against the order of Lieven J dated 9 July 2025 in which she dismissed the appellant’s claim for judicial review of the respondent’s grant of planning permission for a new Household Waste Recycling Centre (“the HWRC”) to the interested party. The application was advanced before the judge on a number of grounds, but the appeal is pursued on the basis of two inter-related grounds which are set out below. The interested party is the statutory Waste Disposal Authority for Norfolk and the respondent is the County Planning Authority, and whilst both the respondent and the interested party are directorates of Norfolk County Council, there is no issue in the appeal in relation to conflict of interest on the basis that they were both exercising discrete statutory functions in respect of the grant of planning permission. Planning permission was granted by the respondent for the replacement HWRC on 5 June 2024.

The appellant has permission to appeal on the basis of two grounds which are essentially related to the same issue. Ground one is the contention that the judge erred in law when finding that the respondent’s consideration of alternative sites for the HWRC was sufficient in circumstances where the respondent had acknowledged an error in that it had not considered East Beckham Quarry, a site outside the National Landscape (“NL”) as a possible alternative site for the HWRC outside the NL designation. The second ground is integrally related to the first in that it is contended that the judge was wrong to dismiss the appellant’s application to adduce new evidence and amend its claim on the basis that there had been a material error of fact in the respondent’s consideration of alternative sites. It can be seen that in reality both of these grounds relate to a single issue in respect of alternative sites which at the hearing was articulated both on the basis that there had been a material error of fact and also on the basis that the committee report underpinning the decision had been materially misleading.

The appellant runs a business catering for approximately 10,000 children from across the country aged between four and twelve who come to the appellant’s premises for outdoor education and a countryside experience. Around 1,000 of the children attending annually have special educational needs or a disability for whom the services provided by the appellant form a vital part of their school’s disadvantaged pupil strategy. The appellant’s site is around 33 acres in extent and includes an outdoor centre building. The part of the appellant's premises closest to the existing HWRC is a playing field, the southern end of which the appellant has ceased to use because of the impact of the existing site. The judge noted, apparently uncontroversially, that the closest part of the existing site to the playing field is 35 metres away, which is a similar distance to that proposed by the new HWRC.

The existing HWRC is 0.1 hectares in size and it appears that, following a Service Review by the interested party, it was identified in September 2015 that the existing HWRC had insufficient capacity to meet the future needs of the catchment area it serves. The new HWRC occupies a site of 0.45 hectares, measured as an increase of 77 square metres when compared with the existing HWRC. The throughput of various waste streams would amount to 6,000 tonnes per annum compared to the existing HWRC which receives 5,000 tonnes per annum. The proposals for the new HWRC include the creation of a new priority junction off the adjacent Holt Road to facilitate traffic movement to and from the site.

In the Planning Supporting Statement provided as part of the documentation accompanying the application for planning permission, information was given in respect of the site selection process that had been undertaken on behalf of the interested party. It appears that in 2017 NPS Property Consultants were instructed on behalf of the interested party to inquire into potential alternative sites. Search criteria were identified and it was specified that the site needed to be around 0.4 hectares in order to permit space for hardstanding, separate operational and public areas, drainage, site office, reuse shop and staff parking. The site required good road links with a preference for any new waste site to be located on land already in waste management use. It seems that in June 2017, as a result of the search report produced by NPS Property, two potential sites were identified but neither were suitable. In the summer and autumn of 2019 NPS Property were again instructed to commence a search for an alternative site. As a consequence of their work, three options were explored. The first option is described in the planning support statement as follows: “(1) The quarry adjacent to the current site – however the landowner did not engage”.

The second option was land to the west of the current site but that was, as previously, ruled out as unsuitable on the basis that it was made up of entirely mature woodland. The third option was the application site. Discussions opened with the landowner of the proposed site for the new HWRC in February 2020. By the end of 2020, and following design work and environmental investigations, the advantages of the proposed location were identified and in January 2022 the interested party agreed to enter into a lease for the proposed site for the new HWRC. Upon the replacement site becoming operational the interested party thus declared the existing site surplus to requirements. The planning application was then prepared and submitted to the respondent.

The respondent’s officers prepared a report for the Planning (Regulatory) Committee (“the committee”) to advise and make recommendations in respect of the application for the new HWRC. The officers’ report was prepared for the committee’s meeting on 24 May 2024. The officers’ recommendation to the committee was that conditional planning permission should be granted for the proposal. The executive summary at the outset of the committee report distilled the principal issues for the committee’s consideration in the following terms:

The officer’s report, having set out the numerous policies of the extant and emerging development plan which were of relevance to the application, provided the following advice underpinning the conclusion that the proposal was a departure from the development plan, in particular with respect to the plan policies in relation to the NL designation:

It will be noted from this passage and those about to be set out that of particular concern to the officers in policy terms was the NL designation and the provisions of the development plan in the North Norfolk Local Development Framework Core Strategy at policy EN1. It is therefore convenient to set out at this stage the terms of that policy. Policy EN1 is complemented by the policies cited from the North Norfolk Minerals and Waste Management Policies development plan document at policy CS5 (which notes “a preference for locations for new waste management facilities avoiding” the NL designation and other environmentally sensitive areas) and policy CS6 (which seeks to focus waste sites on land already in waste management or industrial/employment uses or previously developed land or contaminated or derelict land). Policy EN1 provides as follows:

The officer’s report had a separate section entitled “Landscape and Visual Impact” within which the following analysis was set out for the members of the committee:

Having considered a range of other relevant material considerations and associated planning policies, the officers set out their overall conclusions together with their assessment of the planning balance in the following final paragraphs of the officer’s report:

Members accepted the officers’ recommendation leading to the conditional grant of planning permission which occurred as set out above. This was the state of the evidence at the time when the hearing was commenced before the judge below.

On 14 March 2025, after the first hearing, the appellant applied to adduce further evidence in relation to the possible alternative site at East Beckham Quarry, located around 600 metres to the southwest of the proposed site for the new HWRC. It seems that the owner of that site, Mr Robert Batt, had contacted the appellant on 11 February 2025 having seen an article in relation to the hearing of the application for judicial review in the local press. A witness statement was produced by Mr Read on behalf of the appellant explaining what he had been told by Mr Batt. Mr Batt produced email correspondence to Mr Read in relation to emails passing between himself and the representatives of the interested party as follows. It appears that on 23 July 2019 Mr Batt wrote to Mr David Russell of the interested party’s consultants, NPS Property, in respect of a letter which he had received regarding an alternative site for the HWRC. Mr Batt stated: “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?”

Mr Russell forwarded this email to his client, Ms Nicola Young at the interested party, indicating that he would give Mr Batt a ring shortly to follow up his contact. On 14 August 2019 Mr Russell emailed Mr Batt indicating that he had rung him and wondering if Mr Batt could suggest a convenient time for a discussion about the position on the telephone. On 3 September 2019 Mr Russell followed up with a further email, having had no contact from Mr Batt it would appear, and on 4 September Mr Russell emailed Mr Batt again having consulted with Ms Young providing a list of dates in September when a site meeting could be convened. This was followed up by a further email from Mr Russell to Mr Batt chasing a suitable time for a discussion. On 8 October 2019 Mr Russell advised Ms Young that he had been able, that day, to contact Mr Batt and he had indicated to Mr Batt that he would find some suggested dates for a site visit so that Mr Batt could confirm with his co-director as to whether or not the date would be convenient. Ms Young responded on 9 October 2019 with a list of potential dates in October and November. On 18 October 2019 Mr Russell again emailed Ms Young explaining that he had had no response from Mr Batt in relation to a meeting. Mr Russell stated that he had spoken to Mr Batt’s office, and they had indicated they would be emailing him to tell Mr Batt that Mr Russell had rung, but Mr Russell had still heard nothing further from him. It appears that Mr Russell had forwarded to Mr Batt the dates which had been offered by Ms Young without any success in arranging a meeting. Ms Young acknowledged the position in an email to Mr Russell dated 21 October 2019.

Mr Russell’s email of 9 October 2019 was not responded to by Mr Batt until 5 May 2021 when Mr Batt wrote to Mr Russell noting that they were planning to meet to discuss the opportunity of relocating the HWRC to the Gresham Gravel site and that the whole plan “seemed to have got lost over the last 18 months”. Mr Batt asked Mr Russell to indicate whether it was something that the interested party would still wish to consider. In Mr Read’s witness statement, he indicates that Mr Batt told him that he did not receive any response to this email. Mr Read records Mr Batt as refuting that he did not engage with the interested party and Mr Read notes that the East Beckham Quarry site is a potential alternative site outside the NL designation.

This new material was responded to in a witness statement from Mr Michael Zieja, a senior planning officer employed by the respondent who was the case officer in relation to the planning application which forms the subject matter of this application for judicial review. Mr Zieja explains in his witness statement that, having searched the records of the respondent, there is no evidence that the respondent was ever aware of the East Beckham Quarry site as an alternative for the new HWRC. Mr Zieja draws attention to the fact that the interested party are treated at arm’s length by the respondent in a similar fashion to any other applicant for planning permission and therefore matters which may have been in the knowledge of the interested party, Ms Young or their consultant Mr Russell, were not necessarily within the knowledge of the respondent unless specifically drawn to their attention as part and parcel of the application. Mr Zieja explains that he had concluded that the reference to a quarry ruled out in the planning statement owing to lack of engagement from the owner was a reference to the Beeston Regis Quarry which is the closest quarry to the application site and situated approximately 300 metres to its east. It was only in the light of the evidence produced by Mr Read that it came to Mr Zieja’s attention that in fact the reference in the planning statement was to East Beckham Quarry. Mr Zieja points out that even if he had been aware of the interest expressed by the landowner of the East Beckham Quarry in 2019 and 2021 it would have made no difference to his recommendation. He explains that this is because his recommendation to members to grant planning permission was made on the basis that “I could not be certain suitable land was not available that was situated outside the National Landscape as set out in paragraphs 3.22 and 4.3 of the OR”. Mr Zieja also goes on in his witness statement to make various observations casting doubt on the suitability of the East Beckham Quarry which it is unnecessary to rehearse for the purposes of this judgment.

On 29 April 2025 the appellant made an application to amend its Statement of Facts and Grounds to add an additional ground that the respondent had made a material error of fact by stating that the alternative sites for the new HWRC were within the NL when in fact the East Beckham Quarry site was an alternative site outside the NL. The amendment followed on from the judge reopening the hearing on 31 March 2025 in order to receive oral submissions in relation to the new material both as to its admissibility and also as to the contribution which it made to the appellant’s arguments.

It was necessary for the judge to resolve the issues in relation to the admission of Mr Read’s new evidence and also the application to amend the pleadings. The first objection raised by the respondent to the admission of new evidence was that it was too late and therefore by virtue of delay should be excluded. The judge rejected that submission and concluded that Mr Read had acted reasonably in the steps which he took to draw this new information to the attention of his legal team and, thereafter, the court. The judge did, however, accept the respondent’s additional submission that the new evidence was not material to the arguments raised and, for the reasons given by the judge in rejecting the submission that the officer’s report had materially misled the members, she also concluded that this new evidence should not be admitted. Again, on the basis that the judge concluded that any error of fact, to the degree that there was one, was immaterial, she did not consider it was appropriate to grant the amendment to the pleadings. As set out above, the appellant’s concerns in relation to the judge’s treatment of these case management decisions give rise to the second ground of appeal in these proceedings. The judge’s conclusions in relation to delay are challenged by the respondent in a respondent’s notice that has also been served in these proceedings.

More substantively, the judge expressed her conclusions in relation to the arguments raised by the appellant in respect of the advice given on the consideration of alternatives and the new evidence as to East Beckham Quarry in the following terms in her judgment:

For these reasons the judge concluded that there had not been any legal error in the respondent’s decision and she rejected the appellant’s case.

Section 70(2) of the Town and Country Planning Act 1990 provides that in dealing with an application for planning permission “the authority shall have regard to the provisions of the development plan so far as material to the application and to any other material considerations”. Building on this provision, section 38(6) of the Planning and Compulsory Purchase Act 2004 provides that if “regard is to be had to the development plan for the purpose of any development to be made under the Planning Acts, the determination must be made in accordance with the plan unless material considerations indicate otherwise”. For the purposes of section 38(6), the Planning Acts includes the 1990 Act.

A key consideration in the determination of the planning application which is the subject matter of this litigation was the treatment of the question of the availability of alternative sites for the HWRC. In my view it is important to understand what role the availability of alternative sites played in the determination in the application and why this issue had this role. The nature of the different kinds of material consideration and their influence on the decision-making process was explained by Lord Carnwath in R on the application of Samuel Smith Old Brewery (Tadcaster and others) v North Yorkshire County Council [2020] UKSC 3; [2020] 3 All ER 527 in paragraphs 30-32 of his judgment. Usefully for the purposes of this case, his analysis incorporated his observations in his earlier judgment in the case of Derbyshire Dales District Council v Secretary of State for Communities and Local Government [2009] EWHC 1729; [2010] 1 P&CR 19 which addressed the potential materiality of available alternative sites in the context of determining a planning permission. Lord Carnwath observed as follows:

In the Derbyshire Dales case, Carnwath LJ (as he then was) reviewed the authorities in respect of alternative sites as a material consideration and, as quoted above in paragraph 17 of his judgment, he drew an important conceptual distinction between saying “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” on the one hand, and saying “that it is necessarily relevant, so that he errs in law if he fails to have regard to it”.

If the challenge is based upon the failure to have regard to alternative sites it will be necessary to find a legal basis for the conclusion that the decision-maker was compelled (rather than merely empowered) to take alternative sites into account. In other words, as Carnwath LJ explains in paragraphs 18 and 28 of his judgment in Derbyshire Dales, it is necessary to show that the question of alternative sites was a consideration which the statute expressly or impliedly (because it was obviously material) required to be taken into account as a matter of legal obligation. In other cases, in which alternative sites are not a mandatory consideration, but the decision-maker may as an exercise of planning judgment determine that the question of alternative sites should be examined, then that judgment will be respected by the court subject to the application of conventional public law principles. No doubt the exercise of that planning judgment would have regard to the summary of the principles provided by Simon Brown J (as he then was) in Trusthouse Forte Hotels Ltd v Secretary of State for the Environment (1987) 53 P&CR 293; [1986] 2 EGLR 185; (1986) 279EG 680 QBD as follows:

The summation of Carnwath LJ’s determination of the case was provided at paragraph 36 of Derbyshire Dales where he concluded as follows:

Two particular species of legal error are relied upon by the appellant in relation to the respondent’s decision. The first is the appellant’s reliance upon an error of fact having been made by the respondent in relation to the East Beckham Quarry. The jurisdiction in relation to errors of fact in a public law context was clarified in the case of E v Secretary of State for the Home Department [2004] QB 1044; [2004] EWCA Civ 49. The judgment of the court was given by Carnwath LJ (as he then was). The criteria giving rise to the error of fact jurisdiction were set out in paragraph 66 of the judgment in the following terms:

The second species of public law error relied upon by the appellant is the contention that the members of the committee were led into error by following the advice and recommendation of the officers set out in their report. The principles in relation to considering whether or not there has been an error of law in a decision of a committee following its adoption of the contents of an officer’s report were distilled by Lindblom LJ in the case of Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314; [2019] PTSR 1166 as follows at paragraph 42 of his judgment (with which the other members of the court agreed):

An example of these principles being applied in practice can be found in the case of R (on the application of Loader) v Rother DC and Churchill Retirement Living Limited [2017] JPL 25; [2016] EWCA Civ 795 which involved a claim for judicial review of the grant of planning permission for a sheltered living apartments scheme on the site of a bowls club within the setting of late Victorian buildings listed at Grade II. The proposal was the second application on the site following an earlier refusal of planning permission in which (having been consulted by the local planning authority), the Victorian Society had expressed their objection. The local planning authority attempted to consult the Victorian Society on the revised proposal but their email, which they sent to a person who had formerly worked as a conservation adviser for the Victorian Society, was met with an automated response redirecting any correspondence to another officer of the Victorian Society. The local planning authority failed to send the message seeking a consultation response to the new email address but stated in the officers’ report in relation to consultations that so far as the Victorian Society were concerned, the position was “no comments received”.

Subsequent to the grant of planning permission, the appellant established with the Victorian Society that they had not been consulted on the revised proposal and that they would have expected to have been re-consulted by the local planning authority if an application was resubmitted by a developer. It was submitted on behalf of the appellant that the observations in the officers’ report fell foul of the principles set out in Mansell. It was accepted and conceded by the local planning authority and the interested party that in this respect the officer’s report was misleading, however the submission was made that the decision was not unlawful because it was not significantly or seriously misleading. Lindblom LJ’s conclusions in relation to those submissions were set out in paragraph 56 of his judgment in the following terms:

The analysis which is set out in the officer’s report correctly reflects the statutory framework for determining planning applications set out in section 70(2) of the 1990 Act and section 38(6) of the 2004 Act. Applying the principles which have been set out above in relation to the correct approach to identifying legally mandatory material considerations, it is equally clear that the officer’s report correctly identified that the question of available alternative sites was a material consideration which they had to take into account. Whilst there was some debate at first instance as to whether or not this was as a result of the terms of the relevant development plan policies as well as the common law principles in relation to identification of mandatory material considerations independent of the development plan policies, this is in my view an entirely sterile debate. The analysis in this case is clear.

The statutory framework for the decision which the respondent had to reach set out in the 1990 and 2004 Acts required them to have regard to the provisions of the development plan and to determine the application in accordance with the policies of the development plan unless material considerations indicated otherwise. The development plan contained, amongst other policies, policy EN1 which specifically required the respondent to have regard to available alternative sites as a consequence of the site under consideration being within the NL designation and policy EN1 being in scope. Thus, since the development plan policy specifically identified the need to have regard to available alternative sites if a site was being proposed within the NL designation, the respondent was required to have regard to alternative sites in the light of the relevant and applicable legal principles. Whether or not there might be some other basis upon which it could be reasoned that alternative sites had to be taken into account is in this instance an attempt to prove too much.

Bearing in mind that available alternative sites was a legally mandatory material consideration in the light of the requirements of development plan policy, the question which then arises is as to whether or not the respondent made an error of law by means of a mistake of fact or, alternatively, whether the officer’s report was significantly or seriously misleading. Dealing first with the legal principles in relation to an error of fact, the analysis must commence with identifying the mistake of fact with which the submission is concerned. Two potential candidate errors of fact are relied upon by the appellant. The first is that the respondent failed to consider East Beckham Quarry as a possible alternative site outside the NL designation. The second is that the respondent incorrectly claimed that the quarry owner had not engaged with the applicant when in fact he had. These two potential alternative errors of fact raise different issues.

It is perhaps convenient to start with the second pleaded error of fact, namely that the respondent incorrectly claimed that Mr Batt had not engaged when he had in fact done so. The first point to note in relation to this contention is that, to the extent that any detail is provided in the Planning Supporting Statement, it is not dealt with at all in the officer’s report in the context of their approach to alternative sites. It is therefore only at best of indirect relevance to the members’ decision.

The second and perhaps more important point is that it, is in my view, highly questionable as to whether or not this was an error in relation to an established fact of the kind which engages the error of law jurisdiction. When the email correspondence is examined, it is clear that notwithstanding the offer of various dates for the purposes of a meeting in 2019, no response was received confirming any arrangement for a meeting at that time and 18 months elapsed before there was any further correspondence in relation to the issue. It is apparent from the chronology that site selection was completed during 2020 and at that time it was reasonable to conclude that Mr Batt had failed to engage by responding to the meeting request and providing a convenient date for discussions to continue. I am not therefore satisfied that the suggested error of fact in relation to Mr Batt’s engagement amounted to the kind of established factual error which can amount to an error of law. At the time when the interested party had to complete the site selection process, the position in relation to East Beckham Quarry was that there had been an attempt to have meetings and a discussion with Mr Batt but that endeavour died out after he had been offered various meeting dates and no meeting had been arranged. There is, further, another good reason why even if there were an error of fact in this connection it would still not amount to an error of law on the basis that the error was not material. This leads to an examination of the second suggested error of fact.

The second suggested error of fact is the failure of the respondent to consider East Beckham Quarry as an available site outside the NL designation and a possible alternative to the site proposed for the new HWRC. It is clear from the evidence that Mr Zieja had misunderstood the site which was being referred to in the Planning Supporting Statement as the “quarry adjacent to the current site”. The question then arises, applying the principles set out in the case of E, as to whether or not that mistake played a material part in the respondent’s reasoning for the grant of planning permission.

In the light of the conclusions which have already been set out, it could easily be contended that it did not play a material part on the basis that the description of why the East Beckham Quarry site was excluded at the time of site selection was one which properly described the position. However, the difficulty for the appellant in connection with the materiality of this error is more fundamental. As is clear from the extracts of the officer’s report and in particular its conclusions set out above, the recommendation which the officers made was predicated explicitly on the basis that the planning balance had been struck taking account of the fact that there may be a suitable alternative site outside the NL designation. The officers concluded that notwithstanding the frailty of the site selection process and the conclusion that there may be a suitable alternative site outside the NL designation, the planning advantages of the site for which planning permission were sought were such that on balance they outweighed the conflict with the development plan and this objection in particular. Thus, the recommendation which the members adopted specifically took account of the concern that there may be a suitable alternative site to that which was being proposed but, given the extent of the identified landscape harm and conflict with landscape policies, taken with the other advantages of the proposal, the planning balance could properly be struck in favour of the grant of planning permission. Thus, the error which Mr Zieja made did not impact on the reasoning for the members’ decision, since that decision specifically took account of the fact that there may be a suitable site outside the NL designation.

Similar considerations apply in relation to the alternative contention that the members were seriously or significantly misled by the absence of consideration of the East Beckham Quarry as part of the officer’s report and the committee’s decision-making process. It will be clear from the officers’ analysis that their examination of the planning balance was made explicitly on the basis that there may be suitable alternative sites outside the NL designation which could accommodate the HWRC proposal. Their recommendation that planning permission should be granted placed that consideration into the planning balance both as a conflict with the policies of the development plan and a negative factor in the planning balance on the basis that the site search had been insufficiently thorough and other sites outside the NL designation could be proposed. Having taken account of those issues as counting against the grant of planning permission, nevertheless the other factors which positively supported the grant of planning permission were considered to outweigh them. That was, of course, a matter of planning judgment for the officers and, in their turn, the members.

The officer’s report was not significantly misleading on the basis that it did not specifically identify East Beckham Quarry as a potential alternative site in circumstances where that report did identify that other sites suitable to accommodate the HWRC might be available outside the NL and that this counted against the grant of planning permission. The recommendation was not predicated on the basis that there was no other suitable site outside the NL designation which might be found for the proposal. Thus, again, the absence of the information about East Beckham Quarry did not lead, in my judgment, to the members being materially misled or to the conclusion that their decision was invalidated by the absence of that material. I have reached that conclusion without having to examine the question of Mr Zieja’s evidence about the suitability of the East Beckham Quarry site since in my view that consideration does not arise.

It follows that in my view the decision which the respondent made to grant planning permission in this case was not unlawful either on the basis of the error of fact jurisdiction or because the Mansell principles were offended and the members significantly misled by the officer’s report. Whilst there were submissions made during the course of the hearing as to the application of section 31(2A) of the Senior Courts Act 1981 and whether or not as an exercise of discretion relief should be refused, since I have concluded that there is no error of law in this case those considerations do not arise.

It follows that in my view the substantive conclusions reached by the judge were sound and, as a consequence, the conclusions which she reached in relation to the case management decisions about the admission of the additional evidence and the amendment of the appellant’s pleadings were sound. In my judgment this appeal should be dismissed.

I agree.

I also agree.