Town and country planning – Planning permission – Metropolitan open land – Defendant local planning authority granting first interested party planning permission for energy recovery facility – Claimant applying for judicial review – Whether defendant interpreting waste plan incorrectly – Whether defendants erring in consideration of very special circumstances – Whether defendants fettering discretion – Application dismissed
The defendant local authority granted planning permission to the first interested party, a waste management company, for a development at Beddington Farmlands Waste Management Facility, a 97.2-acre site, by constructing an energy recovery facility (ERF) and ancillary buildings. The claimant was a hotel manager who lived about two miles from the proposed site and was a member of a local group which campaigned against the development. The second and third interested parties were purportedly involved in processing municipal waste.
The claimant applied for judicial review of the decision to grant planning permission. The questions for the court were: (i) whether the defendants had erred in their interpretation of the South London Waste Plan; (ii) whether the defendants had erred in their consideration of “very special circumstances”; (iii) whether the defendants had fettered their discretion in the decision making exercise; and (iv) whether the defendants had erred in their assessment of the environmental impact of the combined heat and power (CHP) pipework beyond the boundaries of the site.
Held: The application was dismissed.
(1) The waste policy position was clearly that the site was safeguarded for waste use for the life of the plan under the policy, namely until 2021. It was abundantly clear from the officer report that full consideration had been given to the post-2023 situation. In considering an officer report the court had to consider it as whole and in the context that it was addressed to an informal local readership. Reading the report in this case fairly and as a whole, there was no basis for saying that it had failed to consider the proposals without taking into account the effect of the expiry of the existing planning permissions in 2023: R (on the application of Morge) v Hampshire County Council [2011] UKSC 2; [2011] PLSCS 14 and R (on the application of Cherkley Campaign Ltd) v Mole Valley District Council [2014] EWCA Civ 567; [2014] 1 EGLR 35 applied; R (on the application of Siraj) v Kirklees Metropolitan Council [2010] EWCA Civ 1286 considered.
(2) The evidence before the defendants had amply justified their conclusion that there was an urgent need to develop its waste facilities. It had been a matter for their judgment as to whether that constituted a very special circumstance and their judgment that it did was unimpeachable: Redhill Aerodrome Ltd v Secretary of State for Communities and Local Government [2014] EWHC 2476 (Admin); [2014] PLSCS 263 applied; Wychavon District Council v Secretary of State for Communities and Local Government [2008] EWCA Civ 692; [2008] PLSCS 178 considered.
(3) The claimant had been unable to point to any specific act on the part of the defendants that would demonstrate that their discretion in determining the planning application had been fettered. As a result, the claimant was seeking to run an argument that the defendants’ discretion was fettered by inference. That was tantamount to saying that, because permission had been granted after the contract had been procured, the defendants’ discretion had inevitably been fettered but there was no basis for such an argument.
(4) The general principle was that it was for the local planning authority to determine whether the environmental statement met the requirements of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 in a specific case. At the time of making the decision in the present case, there had been no application for pipe work outside the specified boundaries of the planning application site. What in essence was being considered by the defendants was a phased development, the second phase of which had not reached any real level of probability. There had been no confirmed end users, in the absence of which there had been no known pipeline route. Without that, it was quite impossible to say that the defendants had acted unreasonably or irrationally in not requiring an amendment to the environmental statement. Any future pipelines would doubtless be subject to their own environmental impact assessment, which would consider the cumulative impact with the permitted development as part of that next phase: R (on the application of Littlewood) v Bassetlaw District Council [2008] EWHC 812 (Admin; [2008] PLSCS 179, R (on the application of Bristol City Council) v Secretary of State for Communities and Local Government [2011] EWHC 4014 (Admin) and Marton-cum-Grafton Parish Council v North Yorkshire County Council [2013] EWHC 2406 (Admin); [2013] PLSCS 196 considered.
Justine Thornton (instructed by Deighton Pierce Glynn) appeared for the claimant; Saira Kabir Sheikh QC (instructed by Sharpe Pritchard) appeared for the defendants; David Elvin QC and Heather Sargent (instructed by Bevan Brittan LLP) appeared for the first interested party; The second and third interested parties did not appear and were not represented.
Eileen O’Grady, barrister
Read the transcript: R (on the application of Khan) v Sutton London Borough Council
