Third party applying for planning permission to use former colliery site as landfill — Planning committee failing to consider whether site best practicable environmental option — Claimant applying for judicial review — Application allowed in part
The third party applied for planning permission to use a former colliery site as a landfill. The application was accompanied by an environmental statement, which mentioned the issues of possible contamination of groundwater and other threats to human health, but which failed to assess them fully or to identify suitable mitigation measures. The defendant planning authority held over those issues for later determination, and granted planning permission, subject to numerous conditions.
The claimant lived close to the proposed site. He claimed that the planning decision was unlawful, and applied for judicial review on the grounds that: (i) in omitting to fully identify issues of potential harm and the measures necessary to mitigate those concerns, the statement submitted by the third party had not met the criteria of an environmental statement so as to fulfil the provisions of the Town and Country Planning (Environmental Impact Assessment) Regulations 1999; (ii) in failing to keep in mind the objectives of avoiding or minimising nuisance caused by noise and smell in mind, the defendant had failed to give effect to its obligations under the provisions of Schedule 4 to the Waste Management Licensing Regulations 1994; and (iii) in failing to carry out an assessment of whether the site was the best practicable environmental option (BPEO), the defendants had failed to meet an obligation imposed by the government paper Waste Strategy 2000.
Held: The application was allowed in part.
(i) The planning authority had jurisdiction to determine whether a document submitted as an environmental statement was sufficient to meet the definition in regulation 2 of the 1999 Regulations. Although an applicant might submit an inadequate environmental statement, the requirement of public consultation enabled planning authorities to address any such inadequacies. In the instant case, the planning authority had consulted the environment agency. The defendants had been entitled to conclude that, in those circumstances, the statement had met the minimum requirement necessary for it to constitute an environmental statement, and that they could lawfully take it into account as part of the planning application.
(ii) On the evidence, the planning committee had considered the objectives of Schedule 4 to the 1994 Regulations. The environmental statement had identified some of the relevant issues, albeit briefly, and the defendants had placed constraints upon the planning permission with the intention of finalising specific measures at some future date. On the evidence, therefore, they had clearly been aware of the necessity to reduce noise and odour and avoid nuisance. On that point, the application failed.
(iii) Planning applications for landfill sites had to conform with Council Directive 1999/31/EC (the Landfill Directive). DEFRA had published a note explaining how the main requirements of the directive had been transposed in the Landfill (England and Wales) Regulations 2002, and it was clear that it intended that local authorities should not grant permission for landfill projects unless they were satisfied that they complied with the guidelines as set out in Waste Strategy 2000.
Planners were to consider whether the site under consideration was the BPEO, taking into account all concerns. This was a prescriptive duty, amounting to more than guidance, which was to be considered when making the decision: see R (on the application of Murray) v Derbyshire County Council [2002] EWCA Civ 31; [2002] 2 PLR 21. In order to satisfy that duty the planning authority had to consider three key issues: the waste hierarchy; the proximity principle; and the issue of self-sufficiency.
In the instant case, the members of the planning committee had not had that duty at the forefront of their minds during their deliberations. They had erred in concluding that the BPEO was a material consideration and that they were required to decide how much weight to attach to it. They had not considered whether the particular site was the best practicable solution on the specific facts of the application, but had looked at an overall need for waste management in the general area. Although the report had made reference to the BPEO direction, the committee had failed to analyse the issues thus raised, and the question they had asked themselves was whether the site was “a” practicable option, rather than “the best” practicable option.
The application failed on the first two grounds, but, given the weight that should have been attached to the BPEO, the court exercised its discretion in granting the relief sought. The application for judicial review therefore succeeded on ground three and the planning permission was quashed. The defendants were granted leave to appeal.
David Wolfe and Matthew Purchase (instructed by Public Interest Lawyers, of Birmingham) appeared for the claimant; Alan Evans (instructed by the solicitor to Derbyshire County Council) appeared for the defendants; John Barrett (instructed by Walker Morris, of Leeds) appeared for the third party.
Vivienne Lane, barrister