Existing quarry site — Site near two airports — Permission sought for bulk disposal of waste — Issue of jurisdiction — Objections on grounds of aviation hazard from birds — Application refused
The applicant owned and worked a quarry site on land to the north of Port Road, East Aberthaw, Nr Rhoose, South Glamorgan. The site was near Barry and between St Athan’s RAF landing ground and Cardiff/Wales airport. The application for planning permission to use the quarry site for the bulk disposal of waste was called in by the first respondent in accordance with his powers under section 77 of the Town and Country Planning Act 1990. The second respondent was the owner and operator of Cardiff/Wales airport. The Secretary of State appointed an inspector and asked that he particularly wished to be advised on matters which included two main issues: aviation safety and the disposal of the tip leachate (percolating liquid). The inspector sat with an assessor and made his report to the Secretary of State who accepted his recommendations without qualification. The applicant challenged that decision.
With regard to the question of the disposal of the tip leachate, the Secretary of State submitted that that issue was not cited as a reason for refusal of planning permission. Therefore the court had no jurisdiction to question his decision in that regard. The second ground concerned the increased risks posed to aircraft and aviation safety which were found to exist through bird-strike incidents associated with birds attracted to the proposed development by reason of putrescent waste in the tipping material. Landfill sites were a major attraction particularly “for opportunist feeders such as gulls…”, the inspector found. He also stated that bird-strikes could have very severe direct consequences for aircraft with catastrophic results. He further found that the applicant’s schemes to overcome the increased bird-strike risk were “fundamentally flawed and would not meet the circumstances of this case.”
Held The application was refused.
1. The Secretary of State was correct in the argument on jurisdiction because the reason for recommendation to refuse planning permission was aviation danger and not the leachate reservations.
2. In considering the applicant’s complaints about the inspector’s treatment of the aviation safety issue, which was the reason for recommending refusal of planning permission, it was submitted that the inspector had applied the wrong test.
3. The correct test, it was argued for the applicant, involved comparing the number of birds likely to be attracted to the site if it were to be developed in accordance with the proposed planning permission with the numbers likely to be attracted if the existing permission were to be carried out. That involved restoring the land to mainly agricultural use.
4. However, the inspector had clearly come to the conclusion that such comparison could not be made: it was fraught with practical difficulties in establishing the necessary background reference point, not least because it involved a constantly shifting situation over time and in terms of numbers and species.
5. In Small Pressure Castings Ltd v Secretary of State for the Environment (1972) 223 EG 1099, a planning comparison was thought incumbent on the Secretary of State between present and previous use “in so far as the available evidence was sufficient to enable a proper comparison to be made”. That was significant.
6. In the court’s judgment, to require that the inspector must nevertheless do his best to make a comparison in these circumstances would place upon him an impossible task.
Martin Kingston QC (instructed by Nabarro Nathanson) appeared for the applicant; Alice Robinson (instructed by the Treasury Solicitor) appeared for the Secretary of State; Geoffrey Stephenson (instructed by Morgan Bruce, of Swansea) appeared for the second respondent.
