Respondent planning authority granting planning permission for extended use of landfill site – Applicant challenging grant of permission – Whether respondents failing to give proper consideration to “relevant objectives” – Whether respondents erred in failing to give objectives substantial weight – Waste Management Licensing Regulations 1994 Schedule 4 para 4(1) – Whether environmental statement provided – Application dismissed
Derbyshire County Council (the council) were the local planning authority for waste-disposal facilities and Fitzwise Ltd operated a landfill site in their area. Following a planning application by Fitzwise, the council granted planning permission for an extension in the use and duration of the landfill site. The extended use involved the extraction of 120,000 tonnes of clay, the incidental extraction of 1,000 tonnes of coal and the provision of a fourth waste cell with an additional 650,000 tonnes of waste-disposal capacity.
The applicant was a local resident who sought to challenge the council’s grant of planning permission on the grounds, inter alia, that: (i) the council failed to comply with current guidance, contained in PPG 10 para A52, as to the best practicable environmental option (BPEO); (ii) they failed to give proper consideration to the “relevant objectives” in relation to the disposal or recovery of waste, prescribed by the Waste Management Licensing Regulations 1994, Schedule 4 para 4(1); (iii) it was a legal error not to give those objectives substantial weight; and (iv) the purported environmental statement provided by Fitzwise did not comply with the mandatory requirements of the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988. Relying upon Berkeley v Secretary of State for the Environment [2000] EGCS 86, the council’s decision to grant permission on the basis of an application accompanied by a flawed environmental statement was unlawful.
Held: The application was refused.
1. The advice before the council, in the form of a report by the director of environmental services, was adequate and sufficient on the BPEO issue. The council had not failed to have due regard to the guidance in PPG 10.
2. The limits of the obligations imposed upon a waste-planning authority by the “relevant objectives” were set out in R v Leicestershire County Council, ex parte Blackfordby & Boothorpe Action Group Ltd [2000] PLSCS 153. Applying Blackfordby, the council had due regard to the relevant objectives. Whatever weight was afforded to them was not susceptible to challenge.
3. In Berkeley, no document purporting to be an environmental statement had accompanied the planning application, whereas, in the instant case, Fitzwise had produced a lengthy document that complied with, or, at the very least, substantially complied with, the regulations. No criticism was made of the document until shortly before the judicial review hearing. It would be unfortunate if a document described as an environmental statement could be treated by all parties as such up to and beyond a planning decision and only be called into question in a subsequent judicial review application. Berkeley was distinguished.
David Wolfe (instructed by Public Interest Lawyers, of Birmingham) appeared for the applicant; Alan Evans (instructed by the solicitor to Derbyshire County Council) appeared for the respondents; Christopher Katkowski QC (instructed by Nabarro Nathanson) appeared for Fitzwise Ltd, an interested party.
Sarah Addenbrooke, barrister
