Pollution and prevention control – Waste disposal – Planning permission – Claimant applying for permit to dispose of inert waste in quarry relying on planning permission in historic general development orders – Defendant’s inspector upholding refusal to grant permit – Claimant applying for judicial review — Whether inspector giving adequate reasons for decision — Whether claimant entitled to relief – Application dismissed
The claimant acquired a quarry site in 1956, for which a waste disposal licence had first been granted around 1983. A subsequent waste management licence, granted in 1997, superseded the original licence. Since 1983, there were few or little written records of waste having been deposited on the site.
In May 2006, the claimant applied for a permit, under the Pollution Prevention and Control (England and Wales) Regulations 2000 (SI 2000/1973) (the PPC Regulations), to dispose of inert waste at the quarry. The area for which the permit was sought corresponded to that in respect of which the 1983 waste management licence had been granted.
Under regulation 10(4)(b) of the PPC Regulations, the Environment Agency was bound to refuse a permit unless any necessary planning permission was in force in respect of the use of the site. It was common ground that no express conventional grant of planning permission covered the relevant use at the site, but the claimant contended that planning permission had been granted by previous general development orders (GDOs). The claimant’s application was refused by the agency because the quarry did not benefit from planning permission for the disposal of waste.
The claimant applied for judicial review of the decision of the defendant secretary of state’s inspector upholding that refusal. It argued that she had failed to deal adequately or at all with its submission that it had the necessary planning permission by virtue of historic GDOs.
Held: The application was dismissed.
The inspector’s reasons were inadequate. The issue of the historic GDOs was fairly before the inspector and detailed submissions had been made by all the parties. The decision letter had not dealt with those submissions in a satisfactory way and it was therefore not possible for the claimant to discover why it had failed. However, since the proceedings involved a reasons challenge, the claimant would succeed only if it could show that it had genuinely been substantially prejudiced by the lack of adequate reasons. The claimant was applying for a permit for the entire area contained in the 1983 waste disposal licence. Since planning permission had not been expressly granted, the claimant had to show, under regulation 10(4)(b) of the PPC Regulations, that there was a deemed planning permission for the deposit of waste on the entire site.
It was common ground that the developments permitted under the 1988 and 1995 GDOs were more prescriptive than those permitted under the earlier GDOs. By virtue of the Town and Country Planning General Development Order 1988 (SI 1988/1813), the general grant of planning permission previously enjoyed had been revoked without any saving provision. Prior to 1988, each individual deposit of waste on a site was granted planning permission by historic GDOs where the superficial area of the deposit was extended but the height did not exceed above that of the surrounding land. Thereafter, any new deposit of waste that either extended the superficial area of the deposit or its height above that of the adjoining land required an express grant of permission by the local planning authority.
In the instant case, the claimant had to show that before 5 December 1988 it had deposited waste on the entire site; there would otherwise be no extant permission for the areas that extended the tipping areas beyond those that had been tipped on that date. The inevitable conclusion to be drawn from the inspector’s findings, which included a finding of limited tipping after 1983, was that the claimant had not established, on the balance of probabilities, that it had deposited waste on the entirety of the site as at 5 December 1988. Consequently, there was no extant permission for the site as a whole. It followed that the claimant could not establish the necessary prejudice for the reasons challenge to succeed.
John Barrett (instructed by Walker Morris, of Leeds) appeared for the claimant; James Maurici (instructed by the legal department of the Department for Environment, Food and Rural Affairs) appeared for the defendant.
Eileen O’Grady, barrister
