Town and country planning – Waste – Certificate of lawfulness for proposed use or development (CLOPUD) – Claimant obtaining planning permission for waste treatment facility – Claimant challenging grant by defendant waste disposal authority of CLOPUD – Whether defendant erring in law by misinterpreting terms of planning permission – Claim allowed
The claimant was the developer and operator of a waste treatment facility at the Tovi Eco Park, Courtauld Road, Basildon, Essex subject to the grant of planning permission in December 2012. Pursuant to the various statutory regimes, the defendant was the waste planning authority (WPA) and the waste disposal authority (WDA). As WPA it granted the 2012 permission and a certificate of lawfulness for a proposed use or development (CLOPUD) under section 192 of the Town and Country Planning Act 1990. As WDA it entered into the contract with the claimant and was the applicant for the CLOPUD. Although the defendant had different statutory and land holding roles in respect of the site and its operations, it was one legal entity. The claimant had constructed the facility pursuant to a contract of March 2012 entered into with the defendant as WDA. The claimant held a sub-lease of the land.
The claimant challenged the grant by the defendant of a CLOPUD which certified the lawfulness of the importation and treatment of up to 30,000 tonnes per annum of source-segregated green garden waste from Essex Household Waste Recycling Centres at the site. The critical phrase in the certificate was “source segregated green garden waste” (SSGGW). Condition 21 of the planning permission stated that no waste other than a specified amount of those waste materials defined in the application details should enter the site.
The question was whether the defendant erred in law in its grant of the CLOPUD, by reason of misinterpreting the terms of the 2012 planning permission. The matter turned on whether SSGGW from the centres was permitted under the planning permission to be processed at the facility. That in turn depended on whether SSGGW from the centres was excluded from the site by the terms of the permission. The defendant argued that, although garden waste directly from householders would not be permitted because it was not “residual” household waste, the same was not true for green waste coming from a centre because there was no restriction within the permission for that to be “residual” waste.
Held: The claim was allowed.
(1) A certificate under section 192 amounted to a decision on the lawfulness of a proposed use which was amenable to judicial review. It was a matter of law for the court to determine whether the certificate was correctly granted. That was not a matter of planning judgment where the court would start by deferring to the decision maker.
(2) Planning permissions had to be interpreted as by a reasonable reader with some knowledge of planning law and the matter in question who would understand the role of the permission, conditions and any incorporated documents. Permission needed to be interpreted with common sense. It was legitimate to consider the planning “purpose” or intention of the permission, where that was reflected in the reasons for the conditions and/or the documents incorporated. The reasons for the condition should be the starting point, the policies referred to and then the documents incorporated. That was not the private intentions of the parties, as in a contractual dispute, but the planning purpose which lay behind the condition. Where, as here, there were documents incorporated into the permission or the conditions by reference, a holistic view had to be taken, having regard to the relevant parts of those documents. That could be a difficult exercise because where, as here, the permission incorporated the application (including the planning statement) and the environmental statement and non-technical summary, there could be a large number of documents to be considered. Those documents might not be wholly consistent, and there might be some ambiguity within at least parts of them. The correct approach was to take an overview of the documents, to try to understand the nature of the development and the planning purpose that was sought to be achieved by the condition in question. The reasonable reader would try to understand the nature of the development and any conditions imposed upon it. Where documents were incorporated into the permission, as here, regard could be had to them. Where the documents sought to be relied upon were extrinsic, save perhaps for exceptional circumstances, they could only be relied upon if the condition was ambiguous. Even where there was ambiguity, there was a difference between documents that were in the public domain, and easily accessible such as the officer’s report that led to the grant of the permission and private documents passing between the parties or their agents. Those factors would not arise in all cases, and that much would depend on whether the permission or a specific section of the incorporated documents gave a clear cut answer: Trump International Golf Course v Scottish Ministers [2015] UKSC 74; [2015] PLSCS 362; [2016] 1 WLR 85 and Lambeth London Borough Council v Secretary of State for Housing Communities and Local Government [2019] UKSC 33; [2019] PLSCS 122 applied.
(3) The court should be slow to consider the intention alleged to be behind the condition from documents which were not incorporated and particularly if they were not in the public domain. The determination of planning applications was a public process which had to be transparent. Any reliance on documents passing between the developer and the local planning authority, even if they ultimately ended up on the planning register, was contrary to that principle of transparency. Planning permissions impacted on third party rights in a number of different ways. It was therefore essential that third parties could rely on the face of the permission and the documents expressly referred to. Furthermore, breach of planning permission and their conditions could lead to criminal sanctions. Applying that approach to the facts of this case, the CLOPUD was not lawfully made in the light of the terms of the planning permission. The planning permission, and condition 21, when properly understood sought to exclude SSGGW from household centres from being processed at the facility. The defendant’s interpretation of the permission was plainly contrary to the policies relied upon in the reasons for condition 21. There was no ambiguity in the permission and the certificate would be quashed.
James Strachan QC and Celina Colquhoun (instructed by Norton Rose Fulbright LLP and Pinsent Masons LLP) appeared for the claimant; Andrew Sharland QC and Richard Moules (instructed by Essex County Council) appeared for the defendant.
Eileen O’Grady, barrister
Click here to read a transcript of UBB Waste Essex Ltd v Essex County Council
