Planning permission — Appellant third party applying to use former colliery site as landfill — Planning authority failing to consider whether site best practicable environmental option — Respondent applying for judicial review — Application allowed in part and planning permission quashed — Third party appealing to Court of Appeal — Whether authority obliged to satisfy selves that proposal complying with decision-making policies — Appeal dismissed
The third party had applied for planning permission to use a former colliery as a landfill. Its application was accompanied by an environmental statement that mentioned the possibility of contaminated groundwater and other threats to human health, but which failed to assess them fully or to identify suitable mitigation measures. The planning authority held over those issues for later determination, and granted planning permission, subject to numerous conditions.
The respondent lived close to the application site. He claimed that the planning decision was unlawful, and applied for judicial review on the grounds that: (i) in omitting fully to identify issues of potential harm and the measures necessary to mitigate them, the statement accompanying the application 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 arising from noise and smell, the planning authority had failed to give effect to their 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), they had not met the obligation imposed by the government paper Waste Strategy 2000. The Administrative Court allowed the application in part and quashed the planning permission: R (on the application of Blewett) v Derbyshire County Council [2003] EWHC 2775 (Admin); [2003] PLSCS 252.
The third party appealed. The planning authority took no part in the appeal, but the court granted the secretary of state permission to intervene in the matter.
Held: The appeal was dismissed.
Waste Strategy 2000 clearly called for application of BPEO policies, so far as practicable, at the planning-control stage as well as in strategic national, regional and local waste-management planning. It was plain that the paper and the BPEO principles that it incorporated should, so far as practicable and identifiable on the facts of each case, be applied in determining applications for planning permission, irrespective of whether a local waste-management plan was in place to which the planning authority could have recourse. In all circumstances, the authority’s reasoning on the application of BPEO to this application was so flawed as to render their decision unlawful.
It was not appropriate in this case for the appeal court to take a different view on the exercise of discretion as that held in the court below. That would amount to a consideration of the planning merits, an exercise that it should not undertake. It was impossible to say whether the planning authority would have taken the same decision had they sensed the greater importance that should now be given to the BPEO hierarchy that put landfill at the bottom of the list of waste management options: Berkeley v Secretary of State for the Environment, Transport and the Regions (No 1) [2001] 2 AC 603 considered.
Christopher Katkowski QC and John Barrett (instructed by Walker Morris, of Leeds) appeared for the appellant, Derbyshire Waste Ltd; David Wolfe (instructed by Public Interest Lawyers, of Birmingham) appeared for the respondent, John Blewett; James Maurici (instructed by the solicitor to the Department for the Environment, Food and Rural Affairs) appeared for the intervener, the Secretary of State for Environment, Food and Rural Affairs; Derbyshire County Council did not appear and were not represented.
Eileen O’Grady, barrister
