England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		26 May 2006

1. SIR MICHAEL HARRISON: This is an application under section 288 of the Town and Country Planning Act 1990 to quash a decision of the first defendant, then known as the First Secretary of State and now known as the Secretary of State for Communities and Local Government, made by an inspector dated 14 July 2005 when he dismissed the claimant's appeal against the failure of the second defendant, West Sussex County Council, to determine within the prescribed period its applications under section 73 of the Town and Country Planning Act 1990 to modify conditions on two planning permissions so as to remove all references to waste types permitted under those planning permissions.
2. The claimant is the owner and operator of a waste transfer station and recycling facility at Burleigh Oaks Farm, East Street, Turner's Hill in West Sussex. The County Council is the waste planning authority for the area. In March 1996 it granted to the claimant a certificate of lawful use for the site for:

"The delivery, sorting and temporary storage of waste materials arising from construction, building, demolition, gardening and landscape industries, excluding special wastes and liquid wastes."

3. In April 1997 the County Council granted planning permission for:

"Erection of a building and lockable storage containers to accommodate the composite use the subject of the Lawful Development Certificate issued by West Sussex County Council on 1 March 1996 under reference TH/39/95; provision of a new security fencing and sliding gates to delineate the site the subject of the same Lawful Development Certificate."

4. Condition 5 of that planning permission provided:

"The proposed building and site shall only be used for the purposes of a waste transfer station for materials arising from construction, building, demolition, gardening and landscape industries excluding special wastes and liquid wastes, in accordance with the Certificate of Lawful Use issued by West Sussex County Council on 1 March 1996 ... and for no other purpose within or outside any use class specified in the schedule to the TCP (Use Classes) Order 1987 ...

Reason: to accord with the terms of the submitted application and to enable the County Planning Authority to control the development in the interests of the local environment."

5. The building permitted by that planning permission was constructed and is operational. In March 1998 the County Council granted a further conditional planning permission for development described as:

"Continued use of the existing lawful waste recycling facility to accommodate stable waste, along with a skip to temporarily store asbestos sheeting and guttering classified as special waste; all in addition to the categories of waste set out in the Lawful Development Certificate issued by West Sussex County Council ... on 1 March 1996 ..."

6. Condition 2 of that planning permission provided:

"The site shall be used only for the purposes of a waste transfer and recycling facility in accordance with the terms of this permission and the Certificate of Lawful Use issued by West Sussex County Council on 1 March 1996 ... and for no other purposes within or outside any use class specified in the schedule to the Town and Country Planning (Use Classes) Order 1997 ... unless a specific planning permission is granted for any other use.

Reason: to accord with the terms of the submitted application and to enable control of the development in the interests of the local environment."

I am told that the site has since been used in accordance with that conditional planning permission.

7. The claimant was granted a waste management licence by the Environment Agency for the operation of the site in June 1997, which was subsequently modified in November 2003 and again in July 2004. Amongst the conditions of the waste management licence (as modified) is a condition which restricts to a specified list the types of waste which may be handled on the site, including food waste and bonded asbestos, and also a condition which includes a quantitative upper limit on the waste handling capacity of the site, which is presently set at 260,000 tonnes per annum.
8. In January 2004, the claimant submitted to the County Council, as waste planning authority, two separate applications under section 73 of the Town and Country Planning Act 1990 to modify conditions in the April 1997 and March 1998 planning permissions. Application 285 sought to modify condition 5 of the April 1997 planning permission and condition 2 of the March 1998 planning permission so as to remove any limitation on the nature of the waste which could be handled or recycled at the site, leaving the nature of the waste to be determined under the waste management licensing procedure. The claimants appeal against the County Council's failure to determine that application within the prescribed period became known as "Appeal A" in the subsequent appeal decision letter.
9. Application 286 sought modification of condition 5 of the April 1997 planning permission and condition 2 of the March 1998 planning permission so as to extend the range of waste materials to include food waste and bonded asbestos, types of waste which were already permitted under the waste management licence. The claimant's appeal against the County Council's failure to determine that application within the prescribed period became known as "Appeal B", which was conjoined with Appeal A.
10. A public inquiry was held into both appeals. There was no objection from the Highway and Transport Services Unit of the County Council as highway authority, and no objection from the Environmental Health Officer. There was no objection by the Environment Agency, but they made comments in a letter of 8 March 2004, to which I will refer later because it was referred to by the inspector and reliance was placed upon it in these proceedings.
11. By a decision letter dated 14 July 2005, the inspector dismissed Appeal A but allowed Appeal B. Perhaps not surprisingly, the challenge in these proceedings only relates to the decision on Appeal A, not the decision on Appeal B. I should perhaps also mention that there was a separate decision letter relating to a costs application made by the claimant which was partly allowed in relation to Appeal B but dismissed in relation to Appeal A.
12. In paragraph 4 of the appeal decision letter, the inspector identified the main issue in both appeals as being:

"... whether the removal of limitations on the categories of waste accepted at the site would have unacceptably harmful impacts on the living conditions of local residents, the safety and convenience of road users, with particular regard to traffic generation, noise and disturbance, and the safety of materials carried into and out of the site."

13. In paragraphs 5, 6 and 7 the inspector dealt with the development plan and government guidance. Paragraphs 8 to 14 contain the inspector's reasons for dismissing Appeal A.
14. In paragraph 8, the inspector referred to the fact that there was no planning control to determine the quantity of waste which might be handled on the site. He referred to the limit of 260,000 tonnes per annum in the waste management licence, remarking that it seemed from the evidence at the inquiry that it was not set after a careful assessment of the environmental capacity of the site having regard to the impact on the local residential areas or the capacity of the local road system.
15. In paragraph 9 of the decision letter, the inspector referred to the claimant's argument that the waste management licence involved very detailed, specific and measurable controls over the site operations, what could be handled there and how it could be stored, handled and disposed of.
16. In paragraphs 10 to 14 of the decision letter, the inspector stated as follows:

"10. Whereas the Environment Agency are able to exercise considerable control and supervision over the site operations, the guidance given in PPG10 and PPS23 is that the waste management regime should work in parallel with the planning regime. The two areas of legislation should complement each other, both over the degree of control and the matters which give rise to concern. In broad terms, planning controls are more relevant or appropriate in the wider area away from the site; the Environment Agency, through the waste management licence, is not able to give protection to broader environmental interests in the surrounding area. The letter from the Environment Agency of 8 March 2004 acknowledges that, recognising that prevention of serious detriment to the environment is a joint responsibility with the planning authority. That is, it is both appropriate and necessary that the detailed and specific concerns addressed by the waste management licence are augmented by appropriate planning controls.

11. In the broadest terms, whereas the site is not within an area of protected landscape, it is close to an area of Outstanding Natural Beauty, a strategic gap for planning processes, and it is reasonably close to residential properties. That is, it is not on a typical industrial type location in an urban area. There is the possibility that new types of waste could require novel handling methods which would have their own different range of environmental impacts. I accept that these may be no more harmful than the present range of operations or may even have less impact. Nevertheless, different waste streams may require different methods of handling, either in the types of vehicles used to transport the waste, the machinery used to handle it on site, and the containers used for storage prior to removal from the site. It may be that the installed plant already on site could successfully deal with new types of waste, but this may not be always so.

12. Although the waste management licence accepts a capacity of 260,000 tonnes per year, it was agreed at the inquiry that the installed capacity is about 130,000 tonnes, and that it is currently processing some 64,000 tonnes. That is, within the limitation of the current waste management licence there is scope for considerable growth in the amount of waste handled at this site, with a commensurate growth in traffic and potential implications for other issues of planning concern.

13. In my view it is appropriate for the planning authority to retain control over the types of waste handled here because of the associated implications of noise, movement or other off-site impacts not adequately controlled by the waste management licence. The Environment Agency's letter of 8 March 2004 specifically recognises that off-site implications for new waste streams, such as traffic movements, must be a matter considered through planning controls. That is, I do not accept that the waste management licence alone offers a rigorous or wide enough regime to safeguard the amenities of the local residents or the environmental impacts associated with the site operations over the wider area. Future expansion should be open to examination for, amongst other matters, the likely traffic impact. Therefore, I do not consider that removing all planning controls over the waste types to be handled would be appropriate.

14. Following the precautionary principle, it is entirely appropriate that each broad change in the nature of the operation here is subject to consideration under the planning regime, in order that the wider environmental and traffic impacts may be assessed. In my view it is essential that the local planning authority should be able to assess the likely impact for each new waste type. I do not consider that this imposes an undue burden upon the operator as the history of handling recent revisions to operations on the site shows that these have generally been responded to within a reasonable time by the county planning authority. Neither do I consider that these unspecified and unforeseen potential risks can be adequately predicted and addressed through the imposition of planning conditions, especially in view of the changing technology and any potential changes to the regulatory regime in the future. Accordingly, I propose to dismiss Appeal A."

17. The thrust of the claimant's case under the first ground of this application is that there was no need for condition 5 of the April 1997 planning permission or condition 2 of the March 1998 planning permission because the type of waste streams could be adequately controlled by the Environment Agency under the waste management licence having regard to the relevant objectives specified in paragraph 4(1) of Schedule 4 of the Waste Management Licensing Regulations 1994. Paragraph 4(1) provides:

" 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 and in particular without—

(i) risk to water, air, soil, plants or animals; or

(ii) causing nuisance through noise or odours; or

(iii) adversely affecting the countryside or places of special interest."

18. It was asserted by the claimant, in relation to the first ground of the application, that the environmental effect of traffic generated by the disposal or recovery of waste at the site would come within the ambit of paragraph 4(1), and that there was therefore no need for it to be controlled by the waste planning authority. Reliance was also placed on paragraph 2(2) of Schedule 4, which provides that nothing in paragraph 2(1) (which provides for competent authorities to discharge their specified functions with the relevant objectives) requires a planning authority to deal with any matter which the relevant pollution control authority has power to deal with.
19. Reliance was also placed on the advice in paragraphs 14 and 15 of the annex to Circular 11/95 that planning conditions should be necessary. The relevant planning conditions in this case were said not to be necessary. Reference was made to the rigorous and comprehensive control under the claimant's waste management licence.
20. Much emphasis was understandably put on the fact that there was no objection by the Highway Authority, the Environmental Health Officer or the Environment Agency, and that there was no evidence about the harmful effects that there may be if the conditions in the planning permissions were not retained. Reliance was also placed on the capacity limit in the waste management licence of 260,000 tonnes per annum, the point being made that there was no highway or other objection to that throughput, and that there was no condition in either of the planning permissions limiting the amount of waste or the amount of traffic transporting the waste.
21. There is a considerable overlap between the submissions made relating to the first and second grounds of this application. In the second ground, it is contended that, if the inspector was entitled to conclude that the planning conditions controlling the types of waste should be retained, he failed to identify or explain "the associated implications of noise, movement or other off-site impacts", referred to in paragraph 13 of the decision letter, or "the wider environmental and traffic impacts", referred to in paragraph 14 of the decision letter. Once again, reliance is placed on the lack of objection from the relevant authorities and the lack of evidence of harm.
22. I have to say that I have considerable sympathy with the claimant's case insofar as they refer to that lack of objection and lack of evidence, but I am not persuaded that that in itself vitiates the inspector's decision. The thrust of the claimant's case is that the regulation of future waste streams should be taken out of the planning system of control and left to the Environment Agency as the sole decision-maker. That is a bold assertion, particularly when one has regard to the statutory regimes and to government guidance. That is why the claimant sought to make it clear that this was a site-specific case, and that they were not suggesting that every waste transfer station should not be the subject of planning conditions. They recognise that planning conditions, properly imposed, have a part to play.
23. PPG10 contains government policy guidance relating to planning and waste management. It was in force at the inquiry and is referred to by the inspector in the decision letter, although it has since been superseded by PPS10. Paragraph 5 of PPG10 states that the land-use planning system has an important role to play in achieving sustainable waste management. It states that it should meet a number of objectives, one of which is to minimise adverse environmental impacts resulting from the handling, processing, transport and disposal of waste. Paragraph 19 describes the Environment Agency's role in the regulation of waste management as being complementary to that of waste planning authorities, and it encourages close liaison to avoid duplication between the planning and pollution control systems.
24. Paragraph 39 states that the planning system deals with the acceptability of a proposed development in terms of the use of land, and not the control of processes, which is a matter for the Environment Agency. Paragraphs 41 and 42 mention a number of matters relevant to planning control, such as impacts on amenity, transportation, noise, pollution et cetera, and paragraph 42 states that, whilst there will inevitably be some overlap between the planning and pollution control systems, effective liaison should keep duplication to a minimum. In Annex A of PPG10, paragraph A11 repeats the appropriate factors that the waste planning authority is likely to need to consider, whilst paragraph A59, dealing with planning conditions, includes amongst the matters which may be the subject of planning conditions the volume of traffic and the physical nature of wastes acceptable or excluded insofar as they might affect local amenity or neighbouring land uses.
25. It seems to me therefore that the inspector's decision was wholly in accordance with government policy contained in PPG10. He decided that it would be appropriate to retain the conditions in the planning permissions controlling future waste streams for planning reasons relating to traffic and other environmental impacts in the wider area away from the site.
26. Not only is that consistent with government guidance in PPG10, and also in PPS23 which deals with planning and pollution control as explained by him in paragraph 10 of the decision letter, but it is also consistent with the views expressed by the Environment Agency in its letter of 8 March 2004. The claimant is quite right in saying that, in that letter, the Environment Agency says that it does not object to the proposal, and the claimant is entitled to rely on that, but it has to be seen in the context of the rest of the letter in which the Environment Agency states:

"It is our understanding that the prevention of serious detriment to the environment, along with the other relevant objectives for disposal or recovery of waste set out in the Waste Framework Directive is a joint responsibility of the Environment Agency and the Planning Authority. In addition, as the Planning Authority and the Agency both also have additional separate responsibilities, it is appropriate for the planning authority to impose controls on waste types accepted at the site, perhaps by generic types of waste that have similar hazards and properties."

I add in parenthesis here that the Environment Agency repeated that view in a subsequent letter of 17 March 2004, adding that the detail of the acceptable waste types can be controlled through the waste management licence.

27. Later in the letter of 8 March 2004, the Environment Agency stated:

"However, the Agency does not control traffic movements, this being a matter which is dealt with through the planning controls."

28. It was submitted on behalf of the claimant that the Environment Agency misdirected itself in saying that it is appropriate for the planning authority to impose controls on waste types. I do not agree because it is consistent with paragraph A59 of the annex to PPG10 as new waste types may have different traffic generation and other environmental consequences for the wider area. I would agree with the views expressed by the Environment Agency, including the view that the control of traffic movements is a matter dealt with through the planning controls. I do not consider that the traffic and other environmental impacts in the wider area away from the site referred to by the inspector are matters appropriately dealt with by the Environment Agency under the relevant objectives in paragraph 4 of Schedule 4 of the Waste Management Licensing Regulations 1994, which in my view are primarily directed to on-site considerations and processes, albeit that they may have some effects outside the site. It is relevant in that respect to note that the claimant's very comprehensive waste management licence in this case is generally dealing with on-site considerations.
29. Paragraph 30 of the decision letter, which is dealing with Appeal B, is relied on by the claimant as showing that the inspector accepted that the waste management licence was the appropriate mechanism for the control of local residents' amenity through traffic movement on surrounding roads, but I do not accept that submission. In that paragraph, the inspector is dealing with the safety of loads carried by lorries and the risk of dangerous substances falling from insecure loads. That was a matter which could be dealt with by the enclosure, sheeting or netting of the lorries, which is a matter for the wast management licence. But the inspector was not accepting in that paragraph that the effect on local amenity generally from traffic movements was a matter to be dealt with by the waste management licence. Indeed, such a conclusion would be wholly contrary to the inspector's conclusion relating to Appeal A.
30. I would accept that the inspector did not expressly mention the relevant paragraphs of Schedule 4 of the 1994 Regulations, but those Regulations were at the forefront of the claimant's case at the inquiry and I do not accept that he did not have regard to them. It is plain from the decision letter read as a whole, and particularly from paragraph 10, that he fully understood the policy regime and guidance and that his decision was consistent with it.
31. It follows that I do not accept the first ground of this application. So far as the second ground is concerned, the important point to remember is that the inspector is dealing with unknown future waste streams which could have wider effects on the environment, particularly from transportation, which are as yet unknown. In paragraph 14 of the decision letter, the inspector referred to unspecified and unforeseen potential risks, and he also referred to changing technology and potential changes to the regulatory regime in the future. He simply was not in a position to identify or explain "the associated implications of noise, movement or other off-site impacts", or "the wider environmental and traffic impact" in any greater detail because they are not yet known and depend on future imponderables. That was why, in his view, it was appropriate to apply the precautionary principle advocated in paragraph 6 of PPS23, and why he concluded that it was "essential" that the waste planning authority should be able to assess the likely impact for each future waste type. The word "essential" is a clear recognition that a condition regulating future waste types was "necessary" as required by paragraphs 14 and 15 of the annex to Circular 11/95. It was a judgment which the inspector was entitled to reach and it cannot be said to be irrational to conclude that future waste streams could produce those kinds of environmental consequences of concern to the planning system.
32. I appreciate that there was no evidence or objection from the Highway Authority. Although the Highway Authority's consultation reply referred in its heading to the applications concerned in both Appeal A and B, the content of that reply appears to be directed primarily, if not entirely, to the application the subject of Appeal B, which was an application containing specific information about the increased traffic flows resulting from the proposed amendment to allow food waste to be accepted at the site. However, I accept that it was stated at the inquiry that the County Council had no objection to either application on highway capacity or safety grounds.
33. The inspector was well aware of the capacity limit of 260,000 tonnes per annum contained in the licence. He referred to it in paragraphs 8 and 12 of the decision letter. However, he stated in paragraph 8 that, from the evidence given at the inquiry, it seemed that that capacity limit was not set after a careful assessment of the environmental capacity of the site having regard to the impact on the local residential areas or capacity of the local road system. That conclusion was derived from a letter produced at the inquiry from the Environment Agency dated 25 May 2005. It stated that they did not have the application file and it described how it was assumed that the figure of 260,000 tonnes per annum was arrived at. The writer then stated that her understanding was that the Environment Agency has not assessed whether it was an appropriate maximum tonnage or not. The letter made no mention of highways' considerations.
34. It follows therefore that the inspector was entitled to come to the conclusion, on the evidence, that it seemed that the capacity of 260,000 tonnes per annum was not set after a careful assessment of impact on residential amenity or highway capacity.
35. In any event, as the inspector stated in paragraph 15 of the costs decision letter, the removal of planning control over future waste types involves a fairly basic point of broad principle which did not require detailed rebuttal. In my view, it would not be reasonable to expect the sort of calculations of future impacts suggested on behalf of the claimant, especially having regard to the future uncertainties. I note that the inspector stated in paragraph 16 of the costs letter that enough evidence had been produced to show that a carte-blanche approach to removing planning controls over waste types would not be in the interests of the protection of the environment generally, nor specific concerns such as the amenities of local residents or traffic.
36. Whilst, therefore, I understand the points made about lack of evidence, I do not consider that they vitiate the inspector's conclusions, which could not have been more specific or detailed for the reasons that I have mentioned.
37. The claimant's third ground is that the inspector failed to consider the fall-back position in that he failed to consider what could happen if planning permission were refused, compared to what could happen if planning permission were granted. The inspector, however, was well aware of what could happen. He was well aware that there was no limitation in the planning permissions on the amount of waste or the amount of traffic, and he was well aware of the capacity limit of 260,000 tonnes per annum in the waste management licence. In particular, in paragraph 12 of the decision letter he noted that currently only 64,000 tonnes were being processed, which was only about half of the installed capacity, which itself was only half of the permitted capacity. It was that very fact which concerned him because, as he stated in paragraph 12, there was scope for considerable growth in the amount of waste handled at the site with a commensurate growth in traffic and potential implications for other issues of planning concern. It was that very fact, namely the consequences of further growth if permission were granted, which was one of the reasons which led him to conclude that it was necessary to control future waste streams on account of the consequences which could result from them. In other words, it reinforced the need to retain control over future waste streams. For those reasons, I do not consider that there is any substance in the third ground of this application.
38. The fourth and final ground is that the inspector failed to have regard to, or even mention, the development plan or government policy, and that he failed to determine the appeal as required by section 38(6) of the Planning and Compulsory Purchase Act 2004, namely in accordance with the development plan unless material considerations indicate otherwise.
39. I do not consider that there is any merit in this ground. The inspector mentioned both the development plan and government policy in paragraphs 5, 6 and 7 of the decision letter. In paragraph 5 he mentioned the Structure Plan, the Mid Sussex Local Plan and the West Sussex Waste Local Plan, and in paragraph 6 he gave further details of their policies. In paragraph 5 he mentioned PPG10 and PPS23, and in paragraph 7 he gave more detail of government policy, as also he did in paragraph 10 of the decision letter. It is clear from the decision letter that the development plan policies and government policy were taken into account by the inspector and properly applied by him.
40. My overall conclusion therefore is that there is no error of law involved in the inspector's decision, nor is there any inadequacy of reasoning. Indeed, I would go so far as to say that I would have been surprised if a contrary decision had been reached by the inspector, depriving the County Council of any control over future waste streams leaving it powerless to deal with any future potential adverse planning consequences.
41. For the reasons I have given, I therefore dismiss this application.
42. SIR MICHAEL HARRISON: Yes, Mr Bates?
43. MR BATES: My Lord, you will be unsurprised that the defendant makes an application for costs. There is a summary. It is £10,706, not including the costs of today, my Lord, and we will not be pursuing the costs of today in these circumstances.
44. SIR MICHAEL HARRISON: Thank you very much. Can you resist that, My Newberry?
45. MR NEWBERRY: No, my Lord.
46. SIR MICHAEL HARRISON: Thank you very much. I will make an order that the claimants pay the first defendant's costs in the sum of £10,706.