Planning permission – Composting facility – Environmental statement – Planning permission for composting facility on site of former colliery – Planning condition relating to colliery requiring full restoration of site – Whether environmental statement for composting facility wrongly comparing effects against correct baseline of site as restored rather than unrestored site – Claim dismissed
In 2010, the defendant council granted planning permission to the first interested party for an “in-vessel” composting facility on the site of a former colliery near the claimant’s home. Although the entire site should have been fully restored by 2004, pursuant to a planning condition in the planning permission for the colliery, under a restoration scheme that included the provision of woodland and agricultural land, 40ha remained unrestored. The proposed site of the composting facility occupied 10.3ha of the unrestored land.
In granting permission, the defendants accepted the recommendation made in a planning officer’s report. It advised that the need to locate composting facilities away from housing, where they would not cause problems with noise, odour and other matters, was a significant factor in favour of a countryside location and took the view that such a location was not unacceptable in principle for that type of development, despite the presumption in relevant planning policies against new development in the countryside.
The claimant brought judicial review proceedings challenging the grant of planning permission. He contended that, inter alia: (i) the environmental statement submitted with the planning application had been inadequate since it compared the environmental effects of the development against the baseline of an unrestored site, rather than, as it should have done, a site that was subject to a restoration requirement; (ii) the defendants had failed to take into account that such restoration was the fallback position in the absence of the development; (iii) they had wrongly considered that a regional plan policy, which created a presumption in favour of locating new waste facilities on previously developed land, did not apply; and (iv) they had erred in their approach to development in the countryside.
Held: The claim was dismissed.
(1) The effects of the development had to be compared to the situation that would exist if the development were not built and, consequently, the proposed development had to be assessed against an alternative assumption that, in the absence of the development, the site would be fully restored according to the planning condition. The defendants had been aware that full restoration was the alternative scenario if planning permission were not granted for the development. The defendants would not find it difficult to contemplate the nature of the site should it be restored, given that the vast bulk of the site had been restored already and the terms of the planning condition made it readily foreseeable what the nature of the whole restored site would be. Although the environmental statement did not explicitly refer to that alternative scenario at each point, the authors of that statement had obviously written the report with that baseline in mind. The statement set out clearly the environmental effects that were contemplated in respect of the proposed development. The defendants had had sufficient information to evaluate those effects against the environmental position if the planned development did not take place and the site was fully restored, and that was the baseline against which they had taken the decision to allow the planning application. Accordingly, the environmental statement was sufficient and the defendants had considered the correct fallback position.
(2) The defendants had not erred in their approach to the regional plan policy on the location of waste facilities. Statements to the effect that the policy did not apply had been made solely in the context of establishing that the site could not be treated as previously developed land under that policy, but had to be treated as open countryside, owing to the requirement to restore the site to its former state.
(3) The defendants had had before them, in the form of a detailed report, the necessary material on which to decide whether the case was of an exceptional nature where, having regard to both benefit and potential environmental effects, the development was justified. They had carried out the required task of deciding whether, in accordance with the relevant policy, a compelling case had been made out for an exceptional development in the countryside.
James Pereira (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the claimant; Jeremy Cahill QC and Satnam Choongh (instructed by the legal department of Derbyshire County Council) appeared for the defendants.
Sally Dobson, barrister