Waste tipping site operated by council under licence of freeholder – Renewal dependent upon compliance with planning legislation – Council granting themselves permission to legalise past tipping of prohibited material – Whether decision based on planning merits – Decision quashed
The applicants, Tarmac Roadstone Holdings Ltd (Tarmac), owned a disused quarry used at all material times, known as the Bellhouse Landfill site. On August 8 1977 Tarmac concluded a tipping agreement with the respondent council permitting use of the site for waste disposal for a period of 20 years. By clause 3 of the agreement the council undertook, inter alia, to comply with planning requirements applicable to the site. By clause 4 the council could, by notice given before February 8 1997, renew the agreement for a further period of 15 years provided that all conditions of the agreement had been complied with. In 1983 the council granted themselves planning permission to operate the site subject to the condition that only inert material would be deposited in certain areas near residential property. In February 1993 the benefit of the agreement was sublicensed to Exwaste Ltd, an enterprise wholly owned by the council.
On May 24 1996 the council gave notice to renew, following which a survey carried out by Tarmac revealed that some 20,000 tonnes of active waste had been deposited in a prohibited area and covered up. In November 1996 the council, anxious to legalise that deposit for the purpose of the desired renewal, applied for permission to deposit certain categories of active waste within the area subject to the earlier planning condition. After considering advice from the planning officer and the secretary to the council the relevant committee concluded that “it would not be unreasonable or unlawful” to grant a temporary permission, with appropriate conditions, pending receipt of fuller information. On February 5 1997 permission was granted as applied for subject to four conditions: (1) that it would expire on February 5 1998; (2) that the offending waste be removed to an appropriate location within 12 months; (3) that the committee receive an independent report within six months on the contents of the site and the environmental implications; and (4) that no offending material be removed without prior approval of plans for transporting that material and making good. Tarmac applied for judicial review.
Held The grant was quashed.
1. Regardless of the conditions as to its removal, the decision to retain the offending waste had not been made on the planning merits. Nor were any such merits to be found in the advice of the council secretary as transmitted by the planning officer. It could not be right that instead of enforcing the authority should decide to confer a mantle of legality by granting a further planning permission, and for no perceptible reason other than to confer such a mantle.
2. A condition requiring removal within 12 months could not rationally be attached to a permission to retain for the same period when it was clear from the evidence that the time needed for removal was unlikely to be less than 12 months.
Neil King (instructed by Herbert Smith) appeared for the applicant; Joseph Harper QC and Graham Keen (instructed by Nicholson Graham & Jones) appeared for the respondent, Essex County Council.
