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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Prytherch, R (on the application of) v Conwy Borough Council [2001] EWHC Admin 869 (19th October, 2001)
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Cite as: [2001] EWHC Admin 869
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R (ON THE APPLICATION OF PRYTHERCH) v. CONWY BOROUGH COUNCIL [2001] EWHC Admin 869 (19th October, 2001)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
| Royal Courts of justice Strand, London, wc2a 2ll Friday 19th October 2001 | ||
B e f o r e :
____________________
THE QUEEN
ON THE APPLICATION OF MRS PRYTHERCH (Claimant)
v
CONWY BOROUGH COUNCIL (Defendant )
WASTE RECYCLING GROUP PLC (Interested Party)
____________________ON THE APPLICATION OF MRS PRYTHERCH (Claimant)
v
CONWY BOROUGH COUNCIL (Defendant )
WASTE RECYCLING GROUP PLC (Interested Party)
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Geoffrey Little (instructed by Conwy Council for the Defendants)
Mr Vincent Fraser QC (instructed by Eversheds for the Interested party)
____________________
AS APPROVED BY THE COURT
Crown Copyright ©
- Introduction By order dated 21 May 2001, Richards J directed that the oral hearing of the permission application be listed with the substantive hearing to follow, if permission granted. In so ordering, Richards J was expressly concerned to keep open all aspects of the issue of delay in the making of this application. At the conclusion of oral submissions, I granted permission but dismissed the substantive application.
- The claimant seeks a quashing order in respect of the decision of the defendant to grant conditional planning permission for the construction of a landfill leachate treatment plant within the former quarry situated at Llandulas which has, for a number of years, been lawfully used a waste disposal site. It is in the nature of a landfill site that rainwater will fall onto the accumulated waste and percolate through to the base of the formation which constitutes the site picking up soluble matter on the way. The object of the leachate treatment plant is so to treat the water, which has thus percolated, that it is in an acceptable state to be discharged into the public foul water sewer for transmission to the local sewage treatment works, there to be treated before discharge. In addition to the leachate treatment plant, and as part of the same application, permission was simultaneously granted for the installation of the pipe which would connect the plant to the public sewer so that liquid from the plant might thereby be treated before final discharge to the environment The interested party claims that this piece of land belongs to it, the claimant maintains that she has some form of possessory title to it. This piece of land is situated between the former quarry and the claimant’s property. The claimant objects to the proposed path of the pipe because of her concerns that liquid might permeate from it and in some way cause injury or damage to her family herself or her property. The waste is collected from the whole of the defendant’s area as well as from the northern part of Denbighshire. The site also receives some types of waste from commercial sources. The proposed route of the discharge pipe after it leaves the defined area of the quarry is across a piece of land of which the ownership is alleged to be in dispute.
- The nature of the application As presented in the written grounds, it extends to no less than 245 paragraphs. At the outset of the hearing claimant’s counsel was invited to concentrate the grounds into those which would be determinative of the application. These may be summarised as follows:
- A sixth issue, as already noted above concerned the issue of the claimant’s delay in commencing this application. It is accordingly necessary to examine this issue separately from the others, it is convenient to do so at the outset.
- Delay The context for the discussion on this topic has to be the requirement that under the provisions of Part 54.5 of the Civil Procedure Rules the claim form must be issued promptly and in any event within 3 months after grounds for making the claim first arose. While there is power to extend time under the general provisions of the rules, this is not a device which the Administrative Court will readily countenance for extending time when there exist no exceptional circumstances.
- It is important to set out the time scale involved in the present case. Thus:
- The claimant sought to meet the difficulties apparent from this timetable of events by the following means:
- The defendant’s response to these points was to the following effect:
- The interested party also made submissions on the issue of delay.
- In reaching the decision, as I have, that this application is not only out of time and that there are no grounds for extending it, I have not overlooked that the claimant is a person on low income and with minimal resources. While these circumstances generate a measure of sympathy, they do not provide recognisable grounds for extending time in a case such as this where there are many interests of the community at large which would be adversely affected by the grant of permission sought.
- It is also to be observed that although the claimant now complains of the risks of permeation of leachate from the pipe, her first concerns were with the routing of the pipe; see letters 18 and 22 December (bundle pp 325-7) between the claimant and the defendant.
- In short, the claim is out of time and there are no grounds upon which it would be proper to extend the time for the commencement of these proceedings.
- 1a. The delegation issue: The starting point for this is to be found in the provisions of the Local Government Act 1972. By s. 101(1) it is provided that a local authority may arrange for the discharge of any of its functions, for the purposes of this case, by “an officer of the authority”. Under paragraph 19 of the defendant’s standing orders (bundle p105) applications to establish whether there should be an EIA and what information should be contained within such a statement are delegated to the ‘Director of Planning’. The senior planning officer [Ceri Thomas] employed by the defendant who works in the office of its Director of Planning and to whom had been delegated the responsibility for making screening opinions by the Director, was the officer who in fact made the screening opinion. The claimant’s argument was that whereas the defendant’s standing orders provided for such matters to be delegated to the Director of Planning, the scope of this delegation did not extend to the further informal delegation by that officer to more junior officers within his department. Because the decision in relation to an EIA was ‘important’ there was no further power to delegate.
- The application for a screening opinion was made by letter of 10 July from the interested party. This letter provided the information necessary for such decision to be made. That information included the fact that discharge from the leachate treatment facility would be by means of a pipe discharging to the local foul sewer. Purporting to act under the provisions of the 1999 Regulations, Ceri Thomas as Assistant Director (Development Control) stated that no formal EIA was required for the proposal. The formal determination of the application appears at bundle pp130-1 which provides the reason why such was not required as being
- The defendant submitted that when an act of delegation to a senior officer takes place, there can have been no expectation, and therefore no legal restriction on his power to delegate, that he would himself perform all the tasks which fall within the range of the delegation. It was submitted that the common sense of the situation was summed up in a passage in the judgment of Schieman J (as he was) in Cheshire CC v. Secretary of State for the Environment [1988] JPL 30, 31 where he said
- In my judgment, the argument advanced by the claimant on this point is flawed and must be rejected.
- 1b. The erroneous determination The proposition advanced on this point requires some understanding of the scope and particular provisions of the 1999 Regulations. Under Regulation 2 Interpretation “EIA application” means an application for planning permission for EIA development which is further defined in the same Regulation as meaning
- In support of this leg of the case the claimant drew attention to the following features:
- The defendant submitted that the proposed plant was not a waste disposal installation for the chemical treatment of hazardous waste. Such could only have been the position if the claimant had not misread many of the technical documents submitted to it for the purpose of the application which it was considering. Thus under the waste licence which governs the use of the site, no ‘special waste’, save for irrelevant categories, can be accepted. The consequence of this limitation on the licence effectively excludes ‘hazardous waste’ as well. Domestic waste is excluded from the Hazardous Waste Directive, hence this part of the claimant’s argument was based on a false premise due to a misreading or misunderstanding of the factual and legal position. In addition, the area of the site was not as large as the claimant asserted, according to the evidence of Ceri Thomas, it was substantially less than the indicative threshold of 0.5 hectares, namely 0.0864 hectares. Furthermore, the installation was not a waste disposal installation within paragraph 9 of the 1999 Regulations since the discharge was into the public sewer and not to the environment as contemplated by Annex IIA of the Directive on Waste 75/442.
- The defendants further submitted that such development as was to take place was not “likely to have significant effects on the environment by virtue of factors such as nature, size or location” (see under the definition of EIA development in the Regulations, above). The fact was that the intended effect of the plant was substantially to reduce the level of contamination on site to approximately one tenth of its present level. Moreover, the defendants drew attention to the provisions of Regulation 4 (see above) which, as has been seen, provides for the occurrence of an “event” to be determinative of the question whether or not the development was EIA, or not. It was submitted that since neither of the stipulated “events” had occurred, the application was not one which was caught by the Regulations at all.
- The interested party contended that the attempt to challenge the defendant’s decision in respect of the screening opinion was not competent and relied on observations of Richards J in Fernback v. London Borough of Harrow [2000] EWHC Admin 278 where at p 18 of the transcript he said that
- The purpose, it was submitted of the EIA provisions under present consideration, was to enable an applicant to proceed with his application and not be delayed by a subsequent request, which was what the claimant here was seeking to achieve. The history of the present case provided no basis for the defendant to reconsider its original screening opinion which was therefore determinative.
- In my judgment, the decision of the relevant officer of the defendant that no EIA was required was correct both in law and in fact. Given the nature and purpose of the proposed installation, it was clearly open to the defendant to conclude that no “event”, which would have triggered the requirement for a EIA to be performed, had occurred within the meaning of Regulation 4 of the Regulations of 1999. The argument to the contrary is untenable. Additionally, it would not be legally permissible for the defendant to revisit consideration of the issue of the screening opinion . It follows from what has already been said that even were it to do so, it would inevitably come to the same conclusion.
- 2. The statutory gap The claimant relied on passages from Planning Guidance (Wales): Planning Policy (PPG) issued in April 1999. Under the section of this document entitled Land Reclamation, Unstable Land and Flood Risk there appears as paragraph
- Location, taking into account such considerations as the reasons for selecting the site itself;
- Impact on amenity
- The risk and impact of potential pollution from the development insofar as this might affect on the use of other land
- The Agency’s view was that it had no power to compel any particular specification for the pipe itself; see letter 8 March to the claimant. It was also the view of the Agency that the interested party had the prime responsibility for monitoring the installation and that piped leachate was primarily a planning and Welsh Water issue; see letter January 2001. Thus, it was submitted that the defendant had had regard to an irrelevant consideration when it regarded the Agency as having control over the risk of permeation, and therefore the escape of pollutant, from the pipe, when it did do so in fact. Moreover, in reporting as he had to the planning committee, the planning officer had been unfair in that he had only addressed the risk of mechanical damage to the pipe and not to the inherent risk of permeation.
- The defendant’s response to this aspect of the claim was to refer to the PPG and identified those parts of it which concerned other agencies whose statutory interests might become involved. Thus paragraph
- The interested party drew attention to the powers and responsibilities of the Environment Agency, not only under the Act of 1991, but also its powers in regard to the grant of a waste management licence. In terms of ‘necessity’ (above), it was right that the court should have regard to the fact that the planning authority was merely one public authority which could have exercised powers in regard to the pipe. There were other agencies (Environment and Welsh Water) whose concerns were more directly involved. The basis of the claimant’s case on this issue was based on a misunderstanding of the effect of the correspondence between the EA and the defendant. Thus, the EA not only did not consider that the pipe was beyond its remit (letter 8 March 2001) but also it considered the pipe conformed to a widely used specification and in the event of any escape or leakage, it had sufficient powers to deal with the resulting situation; see statement of Ceri Thomas (above).
- In my judgment, as the defendant and the interested party submitted in argument, the claimant has yet again failed properly to understand the nature of the correspondence to which reference has already been made and, moreover, has ignored the statutory powers vested in the EA to cope with the consequences of permeation or leakage from the pipe were either to occur. That being the case there was no unfairness in and about the report to the planning committee and there was no gap in the system of statutory control, as the claimant had submitted. To suggest that the absence of reference to permeation when the more significant consequences of mechanical damage were addressed provide an indication of a lack of realism and substance in the claimant’s case. There is in truth no gap between the protection which is to be had to the environment through the planning system and the powers and duties available to the Environment Agency which could have the effect that the composition and continuing state of the pipe could represent an undetected source of danger to the country at large or the claimant in particular.
- 4. Articles 8 and 6 of the European Convention on Human Rights
- The claimant’s pleaded case was that she had paid a rent to the former owners of the quarry for the use of the area of land in question; paragraph 9 of the detailed grounds. Then, she claims that she ceased to pay rent in 1986, in circumstances which are immaterial to the present case, and that the former owners “accepted the continued use of the … areas without rent”. As a matter of law, this way of basing the claimant’s case is incapable of providing any recognisable basis. It is axiomatic that in proceedings for judicial review it is not appropriate to investigate disputed questions of title to land or of fact, but on the claimant’s own pleaded case no interest in the area of land which would be recognisable to the law has been asserted. In any event, the defendant, in granting the permission neither did, nor purported to, adjudicate in relation to that dispute. Moreover, if, or to the extent that, the claimant may have any right over the land, no interest has been asserted which would give her any related rights in respect of the land subjacent to that over which the claimant claims an interest. Quite simply, the defendant claims that it acted fairly and properly in respect of its decision to grant the permission. Given the environmental objective which the leachate treatment plant and pipe were designed to achieve, the grant of permission could be shown to be objectively justified even if the claimant had been successful in demonstrating that any relevant right of hers had been infringed. It was also the claimant’s case that her civil rights had been determined in the planning process unfairly and in the absence of essential safeguards so that her rights contrary to Article 6(1) of the Convention. It was submitted that there were disputed issues of fact which required to be determined before a planning decision adverse to her interests was made. Among these was the determination of the precise nature of her interest and the question of evaluation of risk or its extent that if leachate permeated from the pipe her property rights under Article 8 would be infringed. The planning process could not determine these matters and it was that which enabled the claimant to invoke the assistance of the Convention.
- Enough has been said to indicate that, in my judgment, the attempt to invoke the Convention on the claimant’s behalf must fail. She has been unable to show that she had any identifiable right which the Convention might protect and the common law would not. Even if she had overcome that hurdle, the defendant and interested party have shown that the grant of permission was in accordance with the law, in the interests of the economic well-being of the country and the protection of health. There was no persuasive evidence that the proposed use of a plastic pipe exposed the claimant or her family to any significant risk of harm if there were to be undetected permeation which caused direct effect to the claimant’s property or the surface of the land through which it was intended to pass; see further below. The claimant’s Article 6 right is dependent on there being an infringement of some other right, which she cannot do. Accordingly, she has, in my judgment no arguable case under this head. Finally, it should be said that it is not accepted that a party adversely affected by a planning decision has no right to a fair trial. It is also the case that it was decided in Regina (Alconbury Developments Ltd) v. Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389 that a fair hearing can be had when a remedy by way of judicial review is available. Accordingly, the claimant had such a right, but one which fails on the facts.
- 5. Waste Management Licensing Regulations 1994
- The interested party submitted that the provisions of paragraphs 2 and 4 of Schedule 4 to the 1994 Regulations were qualified in their effect. It was not the object of these paragraphs properly construed to ensure achievement of the objectives, what was required was that regard should be had to those objectives. It is necessary to set out parts of this schedule if the argument is to be followed. Paragraph 2 provides that:
- Conclusion
- This application is therefore dimissed.
MR JUSTICE TURNER:
1a. The defendant had not lawfully delegated powers to its officers for the purpose of determining whether an Environmental Impact Statement (EIA) was required before planning permission could lawfully be granted. Therefore the screening opinion was ultra vires and void.
b. In any event the determination of the planning application was erroneous in law.
2. There is a gap in the statutory planning and pollution legislation into which the claimant’s objection fell which was to the effect that substances contained in the liquid from the discharge from the plant would permeate the walls of the discharge pipe close to her property thus exposing it, or her, to the harmful effects of the discharges.
3. The report to the planning committee by the planning officer was unfair in that it had not reported on the claimant’s objection.
4. The claimant’s rights under the provisions of Articles 1 and 8 of the European Convention on Human Rights (ECHR) had been infringed by the planning process which unfairly, and in the absence of appropriate safeguards, determined factual disputes without providing her with the opportunity to contest those matters. This was in breach of the provisions of Article 6.1 of the ECHR.
5. In breach of Regulations 2(1) and 4(1) of the Waste Management Licensing Regulations 1994, the defendant failed in its regulatory duty to determine the planning application without ensuring that waste would be disposed of without endangering human health or with methods which would not harm the environment.
2000
24 July - screening opinion obtained by planning authority that no EIA was required.
1 December – claimant raised the issue whether or not such was required.
5 December – claimant informed that it was not. It is to be noted that at no stage before the commencement of these proceedings has this decision been the subject of challenge.
13 December – resolution passed to grant conditional permission, the conditions to be finalised by the planning officer.
14 December – claimant aware of the resolution.
22 December – claimant notified that pipe would be located where shown in the documents accompanying the application.
2001
21 February - claimant aware of the need to move promptly.
5 April - proceedings commenced.
1. Claimant was not made aware that the fact that conditions were not finally settled did not prevent the grant of planning permission being an effective legal grant.
2. Claimant was misled into believing that conditional permission had not been granted by letter date 10 January from the defendant to her Assembly Member that the condition had not by then been finalised. It was not until 12 February that the claimant received undated copy of the decision notice which contained the conditions.
3. So, it was contended that time, so far as the claimant was concerned, started to run on 12 February which, if not within the period of 6 weeks was nevertheless prompt.
1. Time began to run once the defendant had resolved to grant planning permission, it does not matter that the precise conditions have not been settled by the date of the resolution; see paragraph 12 of the judgment in Robert and Sonia Burkett v. LB Hammersmith and Fulham transcript 13 December 2000 where the Court of Appeal said
In our view … the fact that an applicant who moves promptly to quash the resolution may be attacked for prematurity no doubt reflects the tactical opportunism of some respondents, but it does not answer the proposition that time began running when the resolution was passed. Nor does it require inevitability in the grant of planning permissions to compel an objector to move early.
2. Moreover, the claimant was informed by telephone on 14 December that the resolution had been passed. This was followed up by letter from the defendant to the claimant of 22 December stating that the siting of the sewer was approved in the location shown on the plans annexed to the planning application.
3. The letter of 10 January upon which the claimant relied was from the Chief Environmental Officer, and was written in ignorance of the fact that the decision notice had been issued.
4. The effects of delay on the interested party are significant and are described in the statement Griffiths 1 (27 April 2001) paragraphs 5 and 6. Furthermore, it is said that there are other non-financial consequences which are undesirable from an environmental point of view, such as continuing daily road movements by tanker from the landfill site to the sewage treatment works.
1. Although the time limit for bringing proceedings for judicial review is set at three months, it should be remembered that the statutory time limit for launching appeals under s. 288 of the Town and Country Planning Act 1990 is six weeks, an indicator for the assessment of promptitude in planning cases; see paragraph 20 of the judgment in the Burkett case, above.
2. The main ground of challenge is in relation to the defendant’s failure to require that an EIA be performed. The claimant raised this issue on 1 December and was informed of the defendant’s position, viz that none was required. At no time prior to the commencement of proceedings did the claimant seek to challenge this decision which she knew had been made on 24 July 2000.
It is plain, as will be seen, that a major issue raised by the claimant in these proceedings has been the absence of an EIA. This is a feature of which the claimant has been well aware since 1 December, but she did nothing effective before the commencement of proceedings and has provided no cogent reason why she did not. Moreover, at no time did the claimant invite the defendant to reconsider its decision in relation to the screening opinion, it would create considerable administrative inconvenience were the matter to be re-opened over a year after that decision had been made. It is also relevant to note at this stage that in Fernback v. LB Harrow [2001] EWHC Admin 278 paragraph 18 Richards J said
In circumstances where the council adopted an unchallenged negative screening opinion and was under no duty to reconsider it, I do not think that it is open to the claimants now to challenge the substance of the council’s view that the development was not an EIA development. … . (I)t cannot … be said that the only reasonable conclusion open to the council was that the development was likely to have “significant effects on the environment” for the purposes of the Regulation.
See later also, when the Regulations are considered in more detail.
The Substantive Case
The development would involve the treatment of leachate from an existing landfill site and would not give rise to significant environmental effects.
In support of the claimant’s submissions on this point, the court was referred to R v. St Edmundsbury Borough Council, ex p Walton [1999] JPL 805 where at 808 Hooper J said:
There can be no doubt that the decision whether or not to require an applicant to submit an environmental statement was an important one. That decisions having been made and not being “overturned” by the Secretary of State , the more rigorous procedures of the assessment of environmental effects of the (1999) Regulations come into play. If the local authority wishes to delegate the regulation 9 decision to an officer, it must formally do so.
It is as well to note at this stage that it was not the case in Walton that there had been any (emphasis added) delegation. Contrast the position here, in which there had been formal delegation to the Director of Planning and the issue is whether an officer working under his supervision was also a lawful delegatee of the Council.
(T)he multitude of tasks which were entrusted by standing orders to the County Secretary and solicitor was such that it was inconceivable that the council intended that all those functions should be attended to by one (person), or that he himself should make the relevant value judgments himself in respect of each of them.
I find myself in respectful agreement with the obvious good sense of Schieman J’s observations. It is one thing, as in Walton for there to have been no delegation at all and for the decision taken without it to have been quashed. It is otherwise for there to have been formal delegation to the head of a department and for the actual decision to have been taken by a person working in that department who was, informally, the delagatee of and answerable to that head. It is then becomes a matter for the court to construe whether or not the intended scope of the delegation by the council standing orders extended to what must be an every day and necessary occurrence if a department is to be able to function efficiently. It plainly was.
development which is either –
(a) Schedule 1 development; or
(b) Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location.
What is meant by these somewhat elliptical expressions will shortly be revealed to the intrepid. Thus, “Schedule 1 development”
Means development, other than an exempt development, of a description mentioned in Schedule 1;
And “Schedule 2 development”
Means development, other than exempt development, of a description mentioned in Column 1 of the table in Schedule 2 where -
(a) any part of that development is to be carried out in a sensitive area; or
(b) any applicable threshold or criterion in the corresponding part of column 2 of that table is respectively exceeded or met in relation to that development.
It will be necessary to visit columns 1 and 2 in due course. But first, it is important to note that Regulation 3, which applies to every EIA application received by a planning authority, forbids the grant of planning permission unless the authority has first taken into account the environmental information. It also requires the authority to state in its decision that it has complied with the Regulation. Whether or not development is EIA development is determined by the occurrence of an event mentioned in paragraph (2) of Regulation 4 which provides
The events referred to in paragraph (1) are –
(a) the submissions by the applicant … in relation to that development of a statement referred to be the applicant … as an environmental statement for the purposes of theses Regulations; or
(b) the adoption by the relevant planning authority of a screening opinion to the effect that the development is EIA development.
Regulation 5 enables an intending developer to request the planning authority to adopt a screening opinion which, if this happens, obliges the authority to adopt it within three weeks of the making of the request. However, the point was made by the interested party that the defendant had correctly identified the nature of the proposed development as being a ‘waste water treatment plant’ in which the ‘area of development did not exceed 1000 square metres’ within category 11 of Schedule 2 to the Regulations. It was, however, the case for the claimant that the proposed development had not been properly categorised by the defendant, as above, but was in truth one within paragraph 9 of the 1st Schedule to the Regulations since it was a leachate treatment plant which properly understood means that it was a ‘waste disposal plant for the chemical treatment of hazardous waste’. Paragraph 9 provides that
The carrying out of development to provide
9. Waste disposal installations for the incineration, chemical treatment (as defined in Annex IIA to council directive 75/442/EEC under heading D9), or landfill of hazardous waste (as elsewhere defined by Council Directive).
1. The interested party accepts that the site area was 0.5 hectares in extent and therefore the provisions of the second column in Schedule 2 paragraph 9 do not save them;
2. The interested party accepted that a ‘water treatment facility’ was in the nature of a sewage treatment works and that the proposed plan was “an installation for the treatment of waste”;
3. From various documents which have emanated from the interested party [bundle pp 182,151,152,155 and 128] the interested party clearly recognised that leachate was Directive waste which was subject to physico-chemical treatment by it;
4. Hazardous waste was accepted onto the site. This has the legal consequence of making the Hazardous Waste Directive apply to it.
In circumstances where the council adopted an unchallenged negative screening opinion and was under no duty to reconsider it, I do not think that It is open to the claimants now to challenge the substance of the council’s view that the development was not a EIA development.
15.2.1 The planning system should guide development to lessen the risk from natural or man made hazards, including the risk from contaminated land.
16.1 The planning system should determine whether a development is an acceptable use of land rather than seeking to control the processes or substances used in any particular development. Planning authorities should operate on the basis that the relevant control regimes will be properly applied on the basis that the relevant control regions will be properly applied and enforced by other agencies. \planning authorities should not seek to control through planning measures, matters that are the proper concern of the pollution control authority. Rather the planning interest should focus on any potential for pollution, but only to the extent that it may affect the current and future uses of the land.
16.3 The potential for pollution affecting the use of land may be a material consideration in deciding whether to grant planning permission. Material considerations are likely to include:
In his report to the defendant’s planning committee, the planning officer stated as follows in paragraphs:
1. The landfill site will continue to generate leachate long after waste tipping has ceased and the site restored. …. The operator estimates that leachate generation in volumes requiring disposal will continue for a further 30 years.
3. The contamination level of the cleaned leachate is approximately one tenth of the untreated leachate.
5. The (claimant) does not object to the plan itself, but objects to the siting of the sewer behind (her house) for the following reasons:
(a) Plastic pies do not last for ever and become damaged, due to chemicals within the leachate, and with age and from heavy vehicles.
(b) The pipe would run through land which consists of an established parking area which has been used by her family for over 25 years.
A number of letters of objection have been received from (the claimant) … indicating, inter alia that the Council should engage independent consultants, and referring to published material on alternatives to landfill waste disposal. All of the objector’s letters are available … for inspection … . They do however raise a considerable number of issues which are not relevant to the present application but relate to such matters as pollution control, waste disposal licence conditions and previous planning decisions.
13. … . There is no reason to believe that the risk of leakage from the plant would be any greater than from any other sewer.
In so reporting to the committee, the planning officer, it was said, “was unfair and significantly mislead members”. Furthermore, the author of the report accepted the possibility that leachate might enter the land and as such that became a planning consideration which had land use consequences. In so reporting, the planning officer, it was again said, made this matter one for the proper interest of the grant of planning control. Correspondence between the Environment Agency for Wales and the defendant was relied upon with a view to showing that the above considerations did indeed indicate some tension between the requirements of the Agency on the one hand and those of the planning authority on the other. Examination of the letters dated 16 and 22 November 2000, suggest that this may be the case, but the defendant made clear that it did not consider that the planning system should be used as a vehicle for the resolution of licence or pollution control matters. The submission was that whereas the Environment Agency had interested itself in the capacity of the leachate plant to process a given quantity of leachate, neither the Agency (wearing its pollution control hat) nor the defendant considered the possibility of permeation of leachate from the pipe connecting to the sewer as being within the remit of either. This is exemplified by passages in the statement of Ceri Thomas where at paragraph 3.14 he said
I also discussed the matters raised with … the Agency (which) expressed the view that the proposed pipe was to be constructed to a specification widely used in industrial installations, and that the Agency have statutory powers to deal with any breakage or permeation.
3.6.1 The planning system normally should not be used to secure objectives achievable under other legislation. The principle of non-duplication should be maintained even though the powers and duties resulting from other legislation may also be the concern of local authorities.
3.6.2 However, provided a consideration is material in planning terms it must be taken into account in dealing with a planning application notwithstanding that other machinery may exist for its regulation. …
3.6.3 Local planning authorities should look to the relevant agencies and/or utility companies for detailed guidance or advice where this is considered appropriate.
Reference was again made to the letter from the Environment Agency of 2 January 2001 and the statement that piped leachate was primarily a matter for the planning authority and Welsh Water. The submission was that before it would have been appropriate for the defendant to have imposed a condition on the interested party, a number of pre-requisites would have to be met; see Circular 11/95 which summarises the approach of the courts on this issue as it has developed over a number of years. They may be summarised as necessity, relevance to planning, relevance to the development in question, enforceability, precision and reasonableness. In the present case, the simple fact was that it was for the interested party to monitor the condition of the proposed pipe to satisfy the water authority as to its condition. The Agency had powers to control the discharge of wastes under the provisions of the Water Resources Act, 1991 as well as to take proceedings against any person who permitted the entry into controlled (including ground) waters any “noxious, poisonous or polluting matter”. Finally, there was no distinction in principle between permeation due to deterioration of the pipe and mechanical damage which caused it to leak. There was no unfairness, therefore, in the report to the planning committee made by the planning officer. That he may not directly have reported all the claimant’s objections his reference to them in general, and the fact of their availability on file was an effective way of drawing the committee’s attention to the claimant’s multitudinous objections.
The submission was that by failing to impose suitable conditions for the grant of planning permission, the defendant had failed to protect the claimant’s right to the enjoyment of her home. The defendant’s short answer to this point was that the mere use of land does not in itself give rise to any right that would support a claim based on the Convention and, even if it did, the grant of planning permission did not affect her common law right to claim damages or an injunction if any of those rights were adversely affected.
The point made was that in granting planning permission the defendant failed to have any regard to “the risk of danger to human health” from the disposal of leachate through the pipe from which permeation might occur. In so doing, it was said to have failed to have regard to Paragraph 4(1)(a)(i) and 4(2)(a) of the 1994 Regulations. The complaint here seems to have been that the defendant failed to impose a condition in relation to the composition of the pipe when it granted the permission. When failing to impose a condition, the defendant also failed to have regard to the provisions of paragraph 16.4 of the PPG as set out above and in so doing failed to have regard to a material consideration.
(1) Subject to the following provision of this paragraph, the competent authorities shall discharge their functions, insofar as they relate to the recovery or disposal of waste, (?in accordance with) the relevant objectives.
“Relevant objectives” are defined in paragraph 4 as being “in relation to the disposal or recovery of waste” as
(a) ensuring that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment and in particular without –
(i) risk to water, air, soil, plants or animals
The case of R v. Leicestershire County council ex parte Blackfordby and Boothorpe Action Group [2000] JPL 1266 was relied upon for the proposition that the obligations under the Schedule were not absolute. Thus
42. (It was accepted) that the objectives are not absolute requirements in the sense of requiring a local planning authority in each case to achieve the result pursued by the objective. That would amount to a requirement to refuse planning permission if there were any risk to human health or the environment, which would in turn lead to the refusal of permission for almost any lanfill site. Such a result would be contrary to existing waste plans and policies …. existing guidance, the terms of the objectives themselves … and common sense. As the Advocate General observed in Comitato di Coordinamento per la Diefsa della Cava v. Regione Lombardia [1994] Env Lr 281 at 289 paragraph 37, “any measure for the disposal of waste is inherenetly liable to produce pollution”.
Then at paragraph
49. …. I have come to the conclusion, however, that there is no real distinction between those formulations. What matters is that the objectives should be taken into consideration (or had regard to) as objectives, as ends at which to aim. … The decision does not cease to have been reached with those objectives merely because a large number of other considerations have also been taken into account in reaching the decision and some of those considerations militate against the achievement of the objectives.
I would respectfully adopt the good sense of this passage and hold that what is required is an intelligent and understanding approach to the balanced judgment which any local planning authority is required to reach in a case such as this. Here, the overall objective of what was proposed was to lessen the impact on the environment of tanking two loads of raw leachate many miles to Stoke on Trent each day by means of the provision of a plant, with associated discharge to the public sewer, which would lessen the impact to the environment of the surrounding area. There is no merit in this part of the case.
Each of the several bases upon which the decision of the defendant planning authority was challenged has been seen to be without merit. Moreover, for reasons already given, I hold that the claim was not made within the permitted time and that no grounds exist for extending the time within which the claim might be brought. If it be thought that the judgment of the court has born harshly on the claimant, this is not due to any failure to understand her concerns about what to her are activities on land carried on by her uncomfortable neighbour. Both common sense and balance is required in a democracy. The lawful actions of public bodies and those who contract to carry out some of the services which they are required to perform are bound to have some adverse consequences to some of the population in the vicinity of those operations. But this is for the benefit of the population at large and is the price which has to be paid for the other benefits which flow from living in a democracy. The criticism which I would make is as to the scatter gun nature and the prolixity of the grounds advanced and the dogged persistence and ingenuity which have been displayed in seeking to make those grounds good, when it was plain that on a proper investigation they were totally lacking in legal merit.
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