QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF HORNER||(CLAIMANT)|
|LANCASHIRE COUNTY COUNCIL||(DEFENDANT)|
|CASTLE CEMENT LIMITED||(3RD INTERESTED PERSON)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MS FRANCIS PETTERSON QC (instructed by the solicitor to Lancashire County Council) appeared on behalf of the DEFENDANT
MR JAMES FINDLEY (instructed by Norton Rose) appeared on behalf of the INTERESTED PERSON.
Crown Copyright ©
MR JUSTICE OUSELEY:
"... erection of machinery to handle (AWDF) Animal Waste Derived Fuel comprising the tanker off-loading area, storage silo, extraction system to feed AWDF into the calciner on Kiln 7, site area -- 1,000, metres square."
No alterations were required to the calciner in Kiln 7, where the AWDF would be burnt, to enable AWDF to be burnt in it. Kiln 7 is its most modern and productive on the site.
The Statutory Provisions
7(1) Where it appears to the relevant planning authority that--
a) an application for planning permission which is before them for determination is a Schedule 1 application or Schedule 2 application; and
b) the development in question has not been the subject of a screening opinion or screening direction; and
c) the application is not accompanied by a statement referred to by the applicant as an environmental statement for the purposes of these Regulations;
Paragraphs (3) and (4) of regulation 5 shall apply as if the receipt or lodging of the application were a request made under regulation 5(1)."
Regulations 5(3) and 5(4) provide that the local planning authority can ask for more information if it requires more in order to reach a screening opinion and that the screening opinion shall be adopted within three weeks of a request, which in effect Regulation 7 deems to have been made if the requirements of Regulation 7(1)are satisfied.
"... a written statement of the opinion of the relevant planning authority as to whether development is EIA development."
"'EIA development' means 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;"
"...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;"
"9. Waste disposal installations for the incineration or chemical treatment (as defined in Annex IIA to Council Directive 75/442/EEC under heading D9), or landfill of hazardous waste (that is to say, waste to which Council Directive 91/689/EEC applies).
10. Waste disposal installations for the incineration or chemical treatment (as defined in Annex IIA to Council Directive 75/442/EEC under heading D9) of non-hazardous waste with a capacity exceeding 100 tonnes per day."
"Installations for the disposal of waste (unless included in Schedule 1)", the relevant thresholds or criteria for which are:
"(i) the disposal is by incineration; or
(ii) the area of development exceeds 0.5 hectare; or
(iii) the installation is to be sited within 100 metres of any controlled waters."
Plainly, if there is a disposal here, it is by incineration.
"Any change to or extensions of development of a description listed in Schedule 1 of in paragraphs 1 to 12 of Column 1 of this table, where that development is already authorised, executed or in the process of being executed, and the change or extension may have significant adverse effects on the environment,
"(i) In relation to development of a description mentioned in Column 1 of this table, the thresholds and criteria in the corresponding part of Column 2 of this table applied to the change or extension (and not to the development as changed or extended)."
The development to which Mr Tromans related that was in class 5b, under the heading "mineral industry": "installations for the manufacture of the cement". It was not suggested, and this is important, that as hazardous waste was already burnt at the cement works, the development should be seen as an extension to a waste disposal installation.
The Lancashire County Council Committee Report
"Firstly, the use of AWDF as a kiln fuel... Before the current planning application is determined, there is a requirement to determine whether or not the burning of AWDF in the kiln represents a change in use of the site from a cement manufacturing plant to a facility for the incineration of animal waste."
The report then sets out the background to the increased use of substitute fuels. The conclusion was that the earlier and continuing use of Cemfuel had not led to a material change of use, because its use was part of the manufacture of cement and the report referred to a case to that effect. In deciding whether or not the burning of AWDF involved a material change of use requiring a separate planning permission, the report said it was important to identify the planning unit by reference to which the materiality of any change of use had to be judged. The question of whether or not it was waste that was burnt was not critical; what mattered was the relationship of the burning of waste to the other activities. The quarry and the cement works were the single unit but it would make no difference if only the cement works were taken as the relevant unit. The unit was used for the mining and working of limestone and for the production of cement; if the lesser unit were the relevant one, I infer that the latter alone would have been said to be its use.
"Similarly, the burning of AWDF will provide heat to be used in the firing of the kilns. The burning of AWDF will not result in the production of more heat or an increase in the quantity of cement produced at the site. It will simply mean that less coal isus burnt in the kilns. If the kilns are not producing cement, the coal, Cemfuel, tyres or AWDF will not be burnt in the kilns.
"Therefore it can be concluded that the purpose of burning substances, whether coal, Cemfuel, tyres or AWDF is to produce heat which is an essential part of the cement making process and is ancillary to that process."
The report considered the possibility that the burning of substitute fuels could reach such a level that there might be a dual use of the site for cement manufacture and waste incineration, but it said that the ancillary nature of the burning to the manufacture of cement was still maintained with this application. Nor would there be any material change of use by intensification.
"The other main environmental impact that is likely to arise from the burning of AWDF is in terms of the emissions from the kiln stack. To some extent it is difficult to quantify what change in emissions might result from AWDF until the trial has taken place. However, the Company have developed a number of 'critical success factors' against which the success of the trial will be judged. These critical success factors include no increase in stack emissions, a reduction in Carbon Dioxide and no discernible odours from the burning or storage of AWDF outside of the site boundary. The Environment Agency will only allow permanent burning of the AWDF taking into account the degree to which the Critical Success Factors are satisfied as part of the trial. The Company expect that oxides of nitrogen and carbon dioxide to be reduced and all other emission to air from Kiln to be unchanged."
As the AWDF would be from animals fit for human consumption, there was not a risk of BSE contaminants being present in the kiln fuel. There would be some Specified Risk Material (SRM) but that would be only from animals under 30 months.
"The other point made by the resident concerns the fact that the County Council did not require Castle Cement to submit an Environmental Statement when it considered the issue regarding Cemfuel burning at the works. The resident is concerned that no EIA will be required in relation to the burning of AWDF. However it has been concluded in the above analysis that the burning of the supplementary fuels, whether Cemfuel tyres or AWDF, does not constitute development requiring planning permission. Consequently, if no permission is required it is equally not possible for the County Council to require an EIA before the burning of these materials commences."
Mr Tromans put some weight on that passage.
"A number of other points are also made with regard to emissions from the kiln stack and the methods by which the success of the trial is assessed. These are points that are more relevant to the Environment Agency and they do not affect the principle of assessing the planning application."
Finally the report said that emissions from the stack and the assessment of success in trial were matters for the Environment Agency and did not affect the principle of the planning application.
The First Ground of Challenge
"Officers of the County Council considered whether the proposed development was of a type to come within Schedule 1 or 2 of the Town and Country Planning (Environmental Impact Assessment) Regulations 1999 but took the view that it did not because the development was not specifically for the disposal of waste and therefore did not require the submission of an EIA prior to the application being determined."
Later, on 30th October 2003, further information was sought from Castle Cement relating to the exact nature of AWDF, its manufacture, its thermal replacement levels in the kiln and "likely environmental impacts arising from its use as a kiln fuel." The reply was given on 3rd December 2003. On 14th November 2003 the EA appears to have given the County Council a copy of the permit variation application.
"The applicant is of the view that technical issues such as temperature of incineration and the categorisation of the waste should have been taken into account during the planning process. However, these issues are connected with the detailed control of the process and it is not for the planning authority to duplicate controls which are the statutory responsibility of other bodies, in this case the Environment Agency. The position is repeated by the Government in PPS 23. Some of these matters, such as the exact chemistry of the fuel, the functioning of the kiln and the issue of alternatives are matters that could, under certain circumstances, be included within an Environmental Statement. However, as set out above and in my previous witness statement, the County Council did not consider that the proposal was EIA development and therefore no Environmental Statement was required to accompany the application."
The reference to "animal" rather than "agricultural" in referring to AWDF in the planning permission and planning application was the result of a mistake in the application and the application to the EA had correctly referred to agricultural WDF, but it was, he said, a point which had no effect.
"These are very wide and to some extent obscure expressions, and a good deal of legitimate disagreement will be involved in applying them to the facts of any given case. That emboldened Lewisham to argue, and the judge to agree, that such a determination on the part of the local authority could only be challenged if it were Wednesbury unreasonable. I do not agree. However fact-sensitive such a determination may be, it is not simply a finding of fact, nor of discretionary judgment. Rather, it involves the application of the authority's understanding of the meaning in law of the expression used in the Regulation. If the authority reaches an understanding of those expressions that is wrong as a matter of law, then the court must correct that error: and in determining the meaning of the statutory expressions the concept of reasonable judgment as embodied in Wednesbury simply has no part to play. That, however, is not the end of the matter. The meaning in law may itself by sufficiently imprecise that in applying it to the facts, as opposed to determining what the meaning was in the first place, a range of different conclusions may be legitimately available."
He contrasted this with the question of whether a development was likely to have significant environmental effects which he said was a planning judgment to which Wednesbury principles would apply.
"1. The decision whether a process or activity has significant environmental effects is a matter for the judgment of the planning authority. In making that judgment it must have sufficient details of the nature of the development, of its impact on the environment and of any mitigating measures.
"2. Equally, it is for the planning authority to decide whether it has sufficient information to enable it to make the relevant judgment. It need not have all available material provided it is satisfied that it has sufficient to enable a clear decision to be reached.
"3. In making that determination, the planning authority can have regard to the mitigating measures provided that they are sufficiently specific, they are available and there is not real doubt about their effectiveness. However, the more sophisticated the mitigating measures and the more controversy there is about their efficacy, the more difficult it will be for the authority to reach a decision that the effects are not likely to be significant.
"4. If the authority is left uncertain as to the effects, so that it is not sure whether they may be significant or not, it should either seek further information from the developer before reaching a conclusion, or if an ES has already been provided it should require a supplement to the ES which provides he necessary data and information. It cannot seek to regulate any future potential difficulties merely by the imposition of conditions.
"5. The authority cannot dispense with the need for further information on the basis that it is not sure whether or not there are significant environmental effects, but that even if there are, other enforcement agencies will ensure that steps are taken to prevent improper pollution. However, it should assume that other agencies will act competently and it should not therefore anticipate problems of difficulties on the basis that those agencies may not do so."
I think that the essential distinction in point is clearer when read with paragraph 33.
"33. Mr Jones came close to submitting that these safeguards can be relied upon so as to entitle the authority to assume the other agencies will so act as to preclude any adverse environmental effects. Plainly that is not the implication of these observations. The primary obligation to ensure that the environmental safeguards are complied with rests with the planing authority and they cannot abdicate responsibility by relying upon other enforcement agencies to make good their failings. They can, however, assume that if a system is in principle capable of operating without creating significant environmental effects, or if the details of the project are left to be determined with an input from other agencies, it should be assumed that the relevant enforcement agencies will operate competently to ensure that the system will operate as it should. Even if the system would have significant effects if not competently regulated, the authority should not act on the premise that this may occur."
This refers back to what Laws LJ was saying in Bellway Urban Renewal Southern v Gillespie  ECWA Civ 400 2003; Env LR 30 at paragraph 46, concerning the distinction between remedial measures, the availability, nature and effectiveness of which were established and controversial, and those measures which were not.
Conclusions on the First Ground
"The question whether or not the development was of a category described in either schedule had to be answered strictly in relation to the development applied for, not any development contemplated beyond that. But the further question arising in respect of a Schedule 2 development, the question whether it 'would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location', should be answered differently. The proposal should not then be considered in isolation if in reality it was properly to be regarded as an integral part of an inevitably more substantial development. This approach appeared appropriate on the language of the regulations, the existence of the smaller development of itself promoting the larger development and thereby likely to carry in its wake the environmental effects of the latter. In common sense, moreover, developers could otherwise defeat the object of the regulations by piecemeal development proposals."
"There is an obvious distinction between an activity involving waste where the object is simply to dispose of the waste which is, ex hypothesi, unwanted and an activity that involves making use of waste for an ulterior purpose involving a process in relation to which the waste is wanted. In the former case the land will be used for the disposal of waste. In the latter case it will be used for the ulterior purpose, and the disposal of waste in the course of the operation will be incidental to the particular use of the land.
"For those reasons I reject Lord Kingsland's submission that the burning of waste on a significant scale must always constitute a separate land use for planning purposes."
"71. In these circumstances there is no question of the second respondents holding SLF for the purpose of disposing of it as waste. They acquire it because they wish to use it as a fuel, and that is how they use it. If SLF was not waste, but was produced as a fuel, there could be no suggestion of the second respondents making two uses of their land, one being burning of fuel and the other the manufacturing of lime. To postulate that the designation of SLF as waste makes all the differences and results in a separate use of the land is unreal. I agree with the obiter observation of Harrison J in R v Environment Agency and Redland Agriculture Ltd, ex p Gibson (May 8, 1988) and p 46 that:
"'On any sensible analysis the plants at... Thrislington are lime producing plants; they are not plants for the incineration of waste.'
"72. This precisely accords with the following key passages in Mr Fitzgerald's advice, as reported:
"'The recovery process is so entirely part of the manufacture of cement for lime that it would be wrong to characterise it as a separate use; there is not waste disposal use in addition to the permitted use.
"'... the nature of the activity is the use of fuel, which is not different from using coal or petroleum coke.'"
At paragraph 88 Lord Phillips MR went further and concluded that, on the issue of fact and degree as to whether the use of SLF had changed the character of lime production so as to produce a change in the character of the land:
"That test could only lead a reasonable sub-committee to one conclusion. The character of the process was not altered to an extent that constituted a material change in the use of the land."
Pill LJ said to the like effect:
"93. The facts in the present case are not in issue and the use of SLF as fuel, which also has the effect of disposing of it as waste, is on a significant scale. However, the mere fact that a fuel used in the manufacturing process is classified as waste, or even as hazardous waste, does not of itself necessarily lead to the conclusion that the use of the fuel creates a land use distinct from that of manufacturing. I have come to the conclusion, upon the facts, as set out by the Master of the Rolls in his judgment, that the inference should not be drawn that the disposal was in this case a separate and distinct use of land. The disposal by use as fuel should in this case properly be categorised as an integral part of the process of lime manufacture."
"I am not persuaded that it would be right to create in addition a planning control which would require that the introduction of any significant disposal of hazardous waste on land constitutes a change of use even where the disposal is an integral part, by reason of its use as fuel, of the manufacturing process. It does not follow from the great public concern about the disposal of hazardous waste, which is reflected in the Directives and United Kingdom legislation, that a separate and distinct use of land should inevitably be established for planning purposes when significant waste disposal is undertaken."
"28. Fourthly, there is an observable distinction in Community provision between waste disposal and waste recovery - see the Waste Framework Directive 75/442/EEC as amended by 91/156/EEC which speaks of waste as being 'recovered or disposed of' and see also Annex IIA - disposal - and IIB - recovery - of the Directive. The meaning of 'recovery' in connection with waste and the Waste Framework Directive was considered by the European Court of Justice in Commission of the European Communities v Federal Republic of Germany  ECR I 1439, where at paragraph 45 the Court said:-
"'45. It follows from Article 3(1)(b) and the 4th Recital of the Directive that the essential characteristic of a waste recovery operation is that its principal objective is that the wastes serve a useful purpose in replacing other materials which would have had to be used for that purpose (ASA, cited above paragraph 69).
"'The combustion of waste therefore constitutes a recovery operation where its principal objective is that the waste can fulfil a useful function as means of generating energy, replacing the use of a source of primary energy which would have had to have been used to fulfil that function'
"See also Commission v Luxembourg  ECR I 1554 at paragraph 37.
"Whilst the Directive with which I am chiefly concerned, on the assessments of the effects of public and private projects on the environment, does not seem itself expressly to distinguish between waste recovery and waste disposal, or, indeed, to need to do so, I see no sufficient reason why there should not be imported into the later Directive, when it speaks of waste, that distinction which the earlier one impliedly requires to be drawn.
"29. Fifthly, none of such domestic authorities which I was referred to, although none is wholly in point, does anything to support a view that incineration of waste as fuel (a fortiori when it is not the only or even the principal fuel) is properly to be regarded as waste disposal as opposed to waste recovery - consider R v Environment Agency ex parte Gibson  Env LR 73; R v Durham CC and Lafarge Redland Aggregates Limited ex parte Elaine Lowther  Env LR 349 CA and Castle Cement v Environment Agency  Env LR 813."
There is no anomaly created because an installation for the recovery of waste would be assessed by reference to the class of development into which it fell and the waste burning effects would be among those which fell to be examined.
"Within 2 years of the cessation of mineral extraction at the Ribblesdale Cement Works, as defined in this permission, the buildings and items of plant herby permitted shall be removed from the land and the site restored."
It is said that that is unreasonable because it would be possible, without contravening the condition, to continue burning AWDF after the cessation of cement manufacture at Ribblesdale because the condition ties the removal of the new installations to the cessation of mineral extraction rather than to the cessation of cement manufacture. AWDF could be burnt, it was said, independently of whether cement was being manufactured at all. It was irrational not to impose condition 3 in a form which tied the burning of AWDF and the retention of the equipment to the manufacture of cement. Such a condition had been imposed on two other permissions at the site, though not on most of them.
The Second Ground
"2(1) Subject to the following provision of this paragraph, the competent authorities shall discharge their specified functions, insofar as they relate to the recovery or disposal of waste, with the relevant objectives.
(2) Nothing in sub-paragraph (1) above requires a planning authority to deal with any matter which the relevant pollution control authority has power to deal with."
The specified functions include the determination of planning applications "in so far as they relate to the recovery or disposal of waste". The relevant objectives at paragraph 4 include:
"4(1) For the purposes of this Schedule, the following objectives are relevant objectives in relation to the disposal or recovery of waste --
(a) ensuring that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment...
(b) implementing, so far as material, any plan made under the plan-making provisions.
(2) The following additional objectives are relevant objectives in relation to the disposal of waste...
(a) establishing an integrated and adequate network of waste disposal installations, taking account of the best available technology not involving excessive costs..."
They also include, in relation to plan making provisions, the prevention or reduction of waste, and recovery by recycling or use as energy. Mr Tromans put particular weight on the reference to "implementing... any plan made under the plan making provisions". These plans include the National Waste Strategy 2000 and the Lancashire and Minerals and Waste Local Plan (LMWLP). Mr Tromans submitted that the application related to the recovery or disposal of waste; if not disposal, it was recovery through its use as fuel.
"Proposals for the incineration, treatment, handling or transfer of animal, clinical, industrial and special waste will be permitted if..."
"iv) they will not give rise to unacceptable adverse impacts on people or the environment..."
"v) they include facilities for the recovery of energy where appropriate."
The reasoned justification said:
"14.65 This policy is intended to deal with a range of proposals for the management of non-municipal waste which is biodegradable, hazardous and/or is otherwise difficult to handle or manage. Some of the waste which would be managed by the facilities to be considered under this policy will have the potential to significantly impact on the environment. They will include wastes which because of their hazardous or objectionable nature require management at specialised dedicated facilities."
"14.69 In considering proposals involving incineration under this policy regard will be given to the matters set out in paragraphs 14.56 and 14.57-14.64 above."
The reasoned justification showed that this policy was not confined to hazardous waste but included all types of difficult waste. In particular it covered the incineration of BSE carcasses and Over Thirty Months Scheme material. The reasoned justification also cross-referred to BPEO and the National Waste Strategy, saying that all proposals within Policy 97 would require environmental assessment.
"In considering any proposal for new incineration facilities under Policy 96 or Policy 97, all of which would require an Environmental Impact Assessment, the following National and European policies and principles will be considered, in addition to the environmental and transportation policies of the Plan:
whether the proposal is BPEO for the waste stream under consideration:
the 'relevant objectives';
the extent to which the proposal contributes to;
regional and sub-regional self-sufficiency in waste management facilities;
the proximity principle;
movement up the waste hierarchy.
Developers will be expected to include BPEO assessments of their proposals within or accompanying Environmental Impact Assessments."
It is also to be noted that that paragraph says that the waste planning authority should not deal with those matters which the pollution control authority had power to deal with.
"In summary, the national position on the waste strategy is as follows:
i) the key principle underpinning sustainable waste management is the concept of the Best Practicable Environmental Option.
ii)a supporting principle is the waste hierarchy; the aim being to manage waste further up the hierarchy:
-- energy recovery
• safe disposal
iii) another supporting principle is the proximity principle, ie waste should be managed as close to where it is produced as it possible."