England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		MANCHESTER CIVIL JUSTICE CENTRE, 1 BRIDGE STREET WEST MANCHESTER M60 9DJ
		18th February 2011

JUDGE GILBART QC:

1. In this matter the Claimant seeks

(a). permission to apply for judicial review of a planning permission dated 28^th July 2010 whereby the Defendant Minerals and Waste Planning Authority Cumbria County Council (CCC), permitted (with conditions) a planning application made by the Interested Party (CWM) for the erection of waste transfer and materials recycling facilities at Distington Landfill Site, Pitwood Road, Workington Cumbria;

(b). permission to extend the time for renewal of that application following refusal on paper by Wyn Williams J on 22^nd December 2010.

2. The proposal related to a site of some 6 hectares. In the final version of the submitted scheme, 1.9 ha would be used for the provision of a waste transfer and materials facility. It was located there because the adjacent Distington landfill is operated by CWM, which company deals with the disposal of residual domestic waste in the districts of Allerdale and Copeland. As a result of the move away from the sending of waste to landfill^[1] the strategy for Cumbria is that there should be two biological treatment facilities (MBT), fed by a series of transfer stations. This facility was proposed as one such facility. Waste would be received and sorted. Recyclable waste would be removed and then the residue would be stored, bulked up and transported to the treatment facility.
3. The proposal included a building described as a "household waste transfer and commercial/industrial materials recovery facility building" measuring 96 metres in length, 36 metres in width and 11 metres in height. It also included a second building that was described as "a separate clean and materials recovery facility building" measuring 60 metres in length, 36 metres in width, and 11 metres in height.
4. It was common ground that the policies of the development plan preferred the location of waste facilities of the kind proposed here on land which was already developed or had been developed. WRG controlled a site nearby which was preferable in sequential terms to the application site. Further, CCC had started work on identifying sites for dealing with waste through the preparation of a Minerals and Waste Development Framework (MWDF) which would when completed to be a part of the statutory development plan. The emerging but unadopted MWDF did not identify the application site but it did identify the site controlled by the claimant WRG. It was not seriously doubted before me that in planning terms alone in the WRG site was preferable to the application site because of its location on brown field land, whereas the application site was on greenfield land.
5. WRG made representations to the CCC that planning permission should be refused because

(a). the location was preferred in the emerging MWDF

(b). CWM had failed to enter into meaningful commercial discussions for the use of the WRG site

(c). the grant of permission outside the MDWF process would undermine the value of the MWDF plan led process

(d). the proposed site is not allocated for employment or commercial purposes and is greenfield land used for agriculture. Therefore the proposal would be contrary to the Regional Spatial Strategy and the Approved Structure Plan particularly in relation to the priority given to use of existing buildings and land.

6. It was common ground before me that the development did not accord with the statutory development plan. Indeed the CCC press notice advertising the application stated that "the proposal does not accord with one or more provisions of the development plan in force in the area in which the application site is situated" By reason of the fact that the proposal would not be in accordance with the development plan, it follows that the effect of section 38 (6) of the Planning and Compulsory Purchase Act 2004 was that permission should have been refused unless material considerations indicated otherwise.
7. Concerns were raised by the local planning and environmental authority (Copeland DC) about noise, odours, dust nuisance, wildlife and the need to mitigate the visual impact. Allerdale Council, whose area is close by, also raised concerns. However the concerns were not such as to lead either Council to object to the development, provided that appropriate conditions were imposed. There were objections from the Environment Agency about the inadequacies of the submitted flood risk assessment, but they were overcome by revised proposals, and two objections from local residents about noise dust and odour nuisance. The application was first considered at Committee on 22^nd June 2010. Some concerns were expressed about ecological impact. The proposals were then revised, the building footprint reduced and further work done on, inter alia, flood risk.
8. The matter went back to Committee on 27^th July 2010. The report of the Assistant Director (Planning and Sustainability) (which is a full and careful one) identified a number of environmental concerns relating to noise, odour, dust, ecology, and flood risk , analysed the effects on those interests, and concluded that provided the appropriate conditions were attached (as they were), any environmental concerns would be dealt with. It also addressed the objections of WRG. The Assistant Director (Planning and Sustainability) recommended that approval be granted subject to conditions. He also produced an "Update" report. That referred to further representations from WRG and CWM, and included further analysis of the availability of the WRG site in the context of the sequential approach. It concluded that CWM had made reasonable efforts to identify alternatives. It also concluded that WRG were giving "mixed messages" to CWM. It then noted that it was not for the planning system to protect the private interests of either party. It assessed the effect of the development, took into account the preference for non-greenfield sites, and addressed other material considerations, including the continuity of employment from the adjacent landfill, the benefits of the proposal being able to use existing waste management infrastructure at the site, and the small additional impact generated over and above that arising from waste management activity at the adjoining site (including post deposit activity). It also noted that the proposal would provide a degree of certainty about enabling transfer of waste to the new MBT plant. The decision was issued on 28^th July 2010.
9. By virtue of Article 22 of the Town and Country Planning (General Development Procedure) Order 1995

" when the local planning authority gave notice of a decision or determination of an application for planning permission ......and (a) planning permission is granted, the notice shall include a summary of their reasons for the grant and a summary of the policies and proposals in the development plan which are relevant to the decision."

10. The notice given under article 22 was, to put it mildly, a remarkable piece of drafting. After reciting the policies of the Development Plan it went on

" In summary, the reasons for granting planning permission are that the County Council is of the opinion that the proposed development whilst not strictly in accordance with the development plan, there are no material considerations that indicate the decision should be made otherwise and with the planning conditions included in the notice of planning consent, any harm would reasonably be mitigated. Furthermore any potential harm to interests of acknowledged importance is likely to be negligible and would be outweighed by the benefits of the development"

11. Of course, even if one overlooks the mangling of the English language, the logic of the first part (about the Development Plan) is that permission should be refused, given the absence of any material considerations indicating otherwise. But, as Mr Carter pointed out, the officer's reports had identified the benefits of the development, and the absence of what were considered to be available preferable alternative sites, and had addressed the issue of whether the WRG site was available instead.
12. On 22^nd September 2010 WRG's solicitors wrote what was said to be a letter before claim pursuant to the Judicial Review Pre Action protocol. It was entirely concerned with the WRG argument that its was site was preferable and that the application site should have been refused on sequential grounds, together with the related arguments about the effect of section 38(6) PCPA as cited above. It was, as Mr Barrett candidly accepted, based on a misconception that CCC had not addressed this issue. In fact the third report by the planning officer had been before the Council and had examined the issue. It had also been addressed to a degree in the first two reports.
13. Both CCC and CWM responded to the claimed failures, and responded to them in detail by letters sent on 11^th October 2010 and 12^th October 2010 respectively.
14. WRG then decided to reassess its position. Having taken counsel's advice it issued these proceedings on 26^th October 2010, or two days before the expiry of the 3 month period referred to in CPR 54.5. It now argued that the application fell within the classes of developments where an Environmental Impact Assessment is required under the Town and Country Planning (Environmental Impact Assessment) Regulations 1999, which give domestic force to EU Directive 85/337, and that , contrary to the provisions of the Regulations, there had been no Environmental Statement submitted, nor had the provisions of the Regulations relating to Environmental Assessment been applied.
15. It was common ground between the parties that if the proposal fell within the description " installation for the disposal of waste" in Schedule 2 of those Regulations, then permission could not lawfully have been granted (see Regulation 4(2) and Berkeley v Sec of State for Envt [2000] UKHL 36).
16. Mr Carter contends that it falls outside the description of "disposal" because what would occur there is, he says, largely the transference of waste. Mr Barrett draws attention to the meaning of the word " disposal" under the Waste Framework Directive 75/442/EC (where " disposal" includes storage) and in Commission v Italy [2006] EUECJ C-486/04 (where disposal includes recovery) , and to national guidance in Circular 02/99 on Environmental Assessment. Without reaching a concluded view, I strongly prefer that of Mr Barrett. I can see no reason why "disposal" should have a different meaning in the two Directives when both are dealing, inter alia, with waste. The whole operation, including recycling recovery and storage, is all concerned with the disposal of waste entrusted to those to whom the waste has been disposed by the original producer. Mr Carter sought to rely on R (Condron) v Merthyr Tydfil BC and others [2010] EWCA Civ 534 where an attempt was made to argue that " Surface industrial installations for the extraction of coal……." in Schedule 2 of the Regulations included an installation to wash and prepare coal for distribution, when the coal had come from off site. Unsurprisingly, the claim failed. But in the instant case the dispute is about the meaning of the word "disposal" and not about its physical relationship to other processes.
17. I would therefore be minded to hold that there was a strongly arguable case that there had been a breach of the Regulations. But the consideration of whether to grant permission also requires the court to address arguments about whether the court would be likely to grant relief at the suit of the Claimant, and about whether there was delay in issuing proceedings. In this case the court must also exercise its discretion on whether to grant permission for the renewal application out of time. Those arguments involve some view being taken about the interrelated issues of the importance of the issue (both generally and to the Claimant and to CWM), and the likelihood of the planning permission being quashed. I shall return to that matter below.
18. As to the second ground, while the wording of the notice is very poor indeed, not to say illogical, WRG was left in no doubt what had been decided or why, and indeed it argued its case on the merits in the pre action letter. Unhappily, the Claimant and its solicitor had not checked the files for any additional reports (it had checked the internet, but the third "update" report has not been posted there). Be that as it may, I regard the breach as technical. No-one has been prejudiced in any way by the absence of cogent reasoning.. The breach of the requirements of Article 22 could not be sufficient to justify overturning the consent.
19. CCC confirmed at the hearing that all conditions requiring approvals before work commenced had been complied with.
20. CWM has put in evidence showing that it has incurred expenditure or liabilities as follows

(a). CWM had entered into a contract in June 2009 with the company (Shanks Waste Management Ltd- " SWM") dealing with waste from Allerdale and Copeland Borough areas whereby it would deal with waste at Distington until 2034, with a term requiring that CWM could receive waste at Distington from not later than August 2011. That contract contained a break date , which had been extended by agreement to 31^st August 2010. On 31^st August 2010, there being no then challenge to the permission, CWM elected not to exercise that break clause. It follows that if the proposal (or a replacement on site or elsewhere) does not go ahead, CWM will be liable to pay losses incurred by SWM up to a defined sum of in excess of 6 figures..

(b). On 17^th December 2010 CWM entered into a contract with an engineering contractor for the construction of the facility. It contained a provision whereby CWM could postpone the placing of orders or the execution of works.

(c). Work started on site in the first week of January. CWM had actually received a copy of the order of Wyn Williams J refusing permission. The last date for renewal was understood by WRG to be 5^th January 2011. On 11^th January 2011 CWG's solicitors informed WRG that no renewal application had been made. On the same day, and in reliance thereon, CWM instructed its contractors to obtain steelwork costing in excess of £ 300,000, which order was then placed.

21. It follows that CWM took an irrevocable step on 11^th January 2011 in reliance on the absence of an application to renew. The Claimant contends that it received the decision of Mr Justice Wyn Williams on 31^st December 2010. The renewal notice was issued on 12th January 2011. On that basis the time for renewal (being more than 5 days) had expired on 8^th January 2011 (see CPR Part 2.8(4)).

The importance of the issue generally and in relation to the Claimant WRG and to CWM

22. There is no evidence at all of any statutory consultee or local resident raising any objection to the way in which the application was dealt with.
23. One should be alive to the nature of the interests of WRG and its objectives. It seeks to have the development carried out on its land, which it contends is preferable because it is a formerly developed rather than an undeveloped site. It is not however contended by WRG that there is any other environmental effect which would flow from the CWM proposal which would be adverse, nor that its site is in any way less harmful in terms of the impact on the environment, save of course for the fact that it is previously developed land. The issue of the preference for a previously developed site, and the sequential approach, was thoroughly explored in the officer's reports which went before the Council. The highest it was put by Mr Barrett was that, had environmental assessment been undertaken in accordance with the Regulations, there could have been objections based on habitat surveys or upon consultation with Natural England.
24. The proposal will also play its part in advancing the objectives of reducing reliance on landfill within the area, and will as the officer noted, assist in providing certainty about the provision of facilities required in conjunction with the MBT system for dealing with waste.
25. It is true that CCC did not take any point that WRG had insufficient standing to apply for judicial review, but the effect of the submissions by CCC and CWM is that I must look to the strength of the WRG case in exercising my discretion on whether to grant permission, or to permit an application to renew out of time. . The strength of the case depends not only on the nature of the breach alleged, but also on the likelihood of the Court exercising its discretion to quash the permission at the suit of the claimant in question. I start by dealing with the authorities.
26. By section 31(3) of the Supreme Court Act 1981, the court shall not grant leave for the making of an application for judicial review " unless it considers that the applicant has a sufficient interest in the matter to which the application relates. I have also considered the judgement of Purchas LJ in R v Sec of State for Transport ex p Presvac Engineering and another [1991] 4 Admin LR 121 @ 139G- 140F and 145E- H, and especially the passage at 140D- 140F

(a). Sufficiency of interest should be considered in the context of the facts of the particular case;

(b). The relationship to be considered is that between the claimant/applicant and the subject matter of the decision;

(c). It is not necessary in establishing a sufficiency of interest to show that he has been unfairly discriminated against;

(d). Provided that the threshold is passed of being more than a mere busybody, the question of sufficiency of interest goes to the exercise of discretion.

I should refer also to R (Noble Organisation Limited) v Thanet DC [2005] EWCA Civ 782, where Auld LJ said

"I would dismiss the appeal. In doing so I add a note of dissatisfaction at the way the availability of the remedy of judicial review can be exploited – some might say abused – as a commercial weapon by rival potential developers to frustrate and delay their competitors' approved developments, rather than for any demonstrated concern about potential environmental or other planning harm...... However seemingly complicated the issues are, or how sophisticated and technical the statement of facts and grounds supporting the initial claim for judicial review, they should be subject to rigorous examination by the single judge at the permission stage of a claim for judicial review."

27. It does not follow that a commercial competitor cannot have sufficient standing simply because he is seeking to protect his commercial position. Whether he does so or not depends on the subject matter. As with all such matters there is inevitably a spectrum of cases falling on either side of the line. Suppose AB plc gets permission for a superstore a mile outside the town centre on a playing field, in breach of statutory Development Plan and national policies, when there has been no sequential analysis, and those policies have been overlooked or misinterpreted by the local planning authority. CD plc which has a superstore built on another playing field a mile from the same town centre would have little basis for a challenge to AB's permission, whereas EF plc , which has bought a town centre site allocated for retailing in the statutory Development Plan, would almost certainly do so. They both have the same commercial interest in mounting a challenge, but their cases are quite different.
28. WRG is a company with considerable experience in waste disposal, and has solicitors who are very experienced in this area. Were the absence of an environmental statement a matter of substance from the point of view of WRG, one would have expected this point to be taken at a very early stage. This is a point it has latched on to with a few days to go the end of the three month period. Had the environmental assessment procedure been undertaken, the lack of availability of the WRG site would have remained. The truth is that it had, for understandable commercial reasons, sought to bargain with WRG. Its chosen strategy was to decline to enable WRG's use of the site, no doubt in the hope that permission would be refused at the WRG site. The loss of the value of their site is not due to any deficiencies in the process of considering the planning application, but to the failure of its own bargaining strategy.
29. It is true that in some kinds of case, the nature of the interests at play are such that a serious failure by an authority to apply the relevant requirements may so distort the competitive or regulatory environment that there would no longer be a level playing field: see e.g. R(Rockware Glass Ltd) v Chester City Council & Anor [2005] EWHC 2250 (Admin) , but in my judgement this challenge falls four square into the type of challenge criticised by Auld LJ in Thanet..
30. The court must also, in considering whether to exercise its discretion to grant relief, have regard to the effects of the quashing of the consent on others. CWM has incurred a great deal of expense on the proposal since the grant of permission, having awaited any renewal notice before doing so. It has done so having tried and failed to reach agreement with WRG about use of its site, and after responding at length to the pre action letter.

Promptness

31. By CPR Part 54.5, a claim must be filed promptly, and in any event within 3 months of the time when the grounds for judicial review first arose. On any view, the claim was substantially delayed. The original letter before action was itself not sent until almost two months had elapsed. It is clear from what happened subsequently that it had not been properly considered. There was then a delay of almost another month before proceedings were issued. The later delay (due to the reassessment of the claim) only came about because the research done in the weeks following the decision had not included the obtaining of all relevant reports from CCC, and had not addressed the point on the need for an environmental assessment. It follows that I consider that this claim was not made promptly.
32. Taking all of these matters together I consider that

(a). There was arguably a breach of the Regulations relating to environmental assessment, but not one leading to any harm to the public interest. So far as the Claimant WRG is concerned, the court would not exercise its discretion to quash the permission on this ground on their application.

(b). The breach of Town and Country Planning (General Development Procedure) Order 1995 caused the Claimants no prejudice and would not justify the quashing of the permission

(c). The claim was not made promptly

(d). The application for renewal was made out of time

(e). Even had the application to renew been made in time, I would have refused permission to apply for Judicial Review

(f). Grant of permission to renew out of time would cause the Interested Party CWM substantial prejudice.

33. I therefore refuse to grant permission to extend the time for renewing the application for permission to apply for judicial review. Had I granted it, the application for permission would have been refused.

Note 1    See the EU Landfill Directive 1999/31/EC and the subsequent domestic legislation (which needs no recital here) and the Landfill Allowances Trading Scheme introduced by the Waste Emissions and Trading Act 2003.    [Back]