QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| John and Sandra Hockley
|Essex County Council
|Uttlesford District Council
Mr Paul Shadarevian and Ms Clare Parry (instructed by Essex Legal Services) for the Defendant
Hearing dates: 29 and 30 October 2013
Crown Copyright ©
Mr Justice Lindblom:
The issues in the claim
(1) whether the County Council erred in law in its approach to screening the development under the regime for environmental impact assessment ("EIA") (ground 1); and
(2) whether the decision to grant planning permission as a departure from Policy GD8 of the Uttlesford Local Plan was unlawful (ground 5).
"A 1.83 hectare site to the south of the Hoblongs industrial estate is proposed for a civic amenity site and depot. Proposals should include landscaping adjacent to the neighbouring properties and the A120 bypass. Any proposal must be subject to a Traffic Impact Assessment."
"Change of use of land to the rear of the Ambulance Station, off Chelmsford Road, Great Dunmow, to a Resource Management Centre comprising a recycling centre for household waste, to include the siting of storage containers and recycling facilities, a waste transfer/bulking station for mixed and source separated municipal and trade waste, [including] refuse collection vehicle parking provision ".
"The current application differs from the previous permission in that it doesn't include [a] Recycling Centre for Household Waste (RCHW) or overnight parking for refuse collection vehicles. The decision not to continue with the RCHW was taken by ECC in consultation with [the District Council], due to the achievement of increased household waste recycling rates and improvements made to other recycling facilities in the vicinity, for example at Saffron Walden and Springwood Drive, Braintree. The kerbside recycling service has also been expanded within the Uttlesford district."
Issue (1) EIA
The EIA regime
"(i) The disposal is by incineration; or
(ii) the area of the development exceeds 0.5 hectare; or
(iii) the installation is to be sited within 100 metres of any controlled waters".
"1. Characteristics of development
The characteristics of development must be considered having regard, in particular, to
(a) the size of the development;
(b) the cumulation with other development;
(e) pollution and nuisances;
2. Location of development
The environmental sensitivity of geographical areas likely to be affected by development must be considered, having regard, in particular, to
(a) the existing land use;
3. Characteristics of the potential impact
The potential significant effects of development must be considered in relation to criteria set out under paragraphs 1 and 2 above, and having regard in particular to
(a) the extent of the impact (geographical area and size of the affected population);
(c) the magnitude and complexity of the impact;
(d) the probability of the impact;
(e) the duration, frequency and reversibility of the impact."
Domestic jurisprudence on screening
"45. In general, each application (or request for an opinion) should be considered for EIA on its own merits. The development should be judged on the basis of what is proposed by the developer.
46. However, in judging whether the effects of a development are likely to be significant, local planning authorities should always have regard to the possible cumulative effects with any existing or approved development. There are occasions where the existence of other development may be particularly relevant in determining whether significant effects are likely, or even where more than one application for development should be considered together to determine whether or not EIA is required."
"The likelihood of significant effects will generally depend on the scale of the development and the nature of the potential impact in terms of discharges, emissions or odour. For installations (including landfill sites) for the deposit, recovery and/or disposal of household, industrial and/or commercial wastes EIA is more likely to be required where new capacity is created to hold more than 50,000 tonnes per year, or to hold waste on a site of 10 hectares or more. Sites taking smaller quantities of these wastes, sites seeking only to accept inert wastes (demolition rubble etc.) or Civic Amenity sites, are unlikely to require EIA."
The European Commission's guidance
"The Aarhus Convention: An Implementation Guide"
The request for a screening opinion
"It is our view that the proposed development is not likely to have significant environmental effects. The nature of the development is a transfer facility only which does not involve any waste processing or treatment. It is of modest scale, and the site is not subject to sensitive environmental designations. AMEC has given preliminary consideration to potential environmental impacts, as set out as an attached appendix, and believe that whilst there is the potential for some localised environmental impacts arising from the proposed development these can be satisfactorily addressed through appropriate mitigation measures."
"Noise emissions from on-site activities such as material drops and vehicle movements during the site's operation could potentially result in increased noise levels at the adjacent residential receptors. However in AMEC's experience such impacts can be reduced through appropriate siting of buildings and their doors as well [as] a scheme of on-site noise management and mitigation techniques such as acoustic barriers."
On "Traffic and Transport" AMEC said this:
"The site is accessed via a private road, via the truncated section of Chelmsford Road off the B184. The turning radius at the junction from the private road onto the truncated road section is limited. The proposed development may require improvements to the site access to ensure that articulated vehicles can enter and exit the site safely.
Table A.1 summarises the estimated traffic generation of the proposed Waste Transfer Station. The site will receive dry recyclables, food and residual waste. The District Council will be operating an alternate weekly collection system such that food waste and recyclables is collected one week and food waste and residual waste the second week. ".
"Given the location of the site, the estimated traffic generation of the proposed Waste Transfer Station and the site's previous planning history, it is considered that an assessment of potentially significant traffic-related environmental effects is not required. Furthermore, Guidance on Transport Assessment would suggest that a TA would not be required as supporting documentation to a planning application for development on the site. However, following consultation with Essex County Council (as highway authority) a TA is currently being prepared."
"In summary, it is likely that the development would not give rise to any significant noise impact effects. A detailed noise report will accompany the submission of the planning application and will include the results of the baseline noise monitoring undertaken recently at the site, details regarding the methodology for the prediction of the site noise emissions, the assessment of site noise emissions in accordance with the guidance on industrial/commercial noise emissions affecting existing residential properties, and full details of the proposed environmental noise mitigation measures, including the rationale for their proposal."
The screening opinion
"Air quality and noise could be considered as 'emissions' and have been assessed within the screening application.
Air quality has the potential to be affected as a result of the development. It is noted that the site is not located with an Air Quality Management Area designated by [the District Council].
The applicant proposes that an air quality desktop study would be undertaken as part of any forthcoming application, however it is not anticipated that there would be any significant impacts.
The development would necessitate an increase in the number of vehicle movements at the site, which has the potential to result in an increase in road traffic pollution levels. The estimated number of vehicle movements per day is 74 and 66 in alternate weeks (the first week is food waste and recyclable collections and the second week is food waste and residual waste). It is unlikely that this level of traffic would result in air quality problems, however a Transport Assessment would require as part of any forthcoming planning application so that the vehicle numbers would be certain.
In relation to noise, emissions would arise from vehicle movements, tipping and bulking of waste materials within the building, operation of the odour extraction system and vehicle cleaning, as well as during the construction period.
In order to minimise the impact of noise on surrounding receptors (e.g. the cottages located to the east of the site and the Travel Lodge hotel to the north), all transfer operations are proposed to take place within the building which would have sealed north and east facing faηades. All HGV/RCV access points would be located on the western elevation facing away from properties to the east and the doors would be closed unless required for access. It is also proposed that the hardstanding would be located to the west of the building, thereby allowing the building itself to act as a screen for the properties to the east.
It may be necessary for silencers to be installed to control noise from the odour extraction system.
Operating hours are proposed as 0700 hours 1700 hours on weekdays and 0900 hours 1700 hours on Saturdays, thereby avoiding the more sensitive 'night-time' hours.
The applicant has stated that additional noise mitigation measures would also be considered if required."
"The waste would be delivered to site in refuse collection vehicles and immediately placed within a building. The residence time within the building would be minimised and fast acting roller shutter doors would be employed. The building would be kept under negative pressure and odours would be passed to a stack or abatement system to avoid odours escaping to the surrounding receptors (e.g. the cottages located to the east of the site and the Travel Lodge hotel to the north).
Odours associated with the vehicles themselves would be considered to be insignificant due to the transient nature of the vehicles entering and exiting the site."
"Based on the consideration of criteria for section 11 b) and guidance within Circular 02/99 and the documents listed in the Annex which have been provided by the applicant it is considered that EIA WOULD NOT BE REQUIRED."
The application for planning permission
"During the 'worse case' scenario (i.e. Week 1), the WTS will generate 74 two-way vehicle movements (e.g. 37 arrivals + 37 departures) per day[.] During the 'worse case' peak hour (i.e. AM peak hour), the WTS is estimated to generate 6 vehicle movements (e.g. 3 arrivals + 3 departures). This figure equates to one vehicle entering or exiting the site every 10 minutes between 08:00 and 09:00. During the 'worse case' peak for development generated traffic (10:30-13:30 during Week 1) the WTS is estimated to generate 12 vehicle movements (e.g. 6 arrivals + 6 departures) each hour.
In addition, 4 vehicle trips will be generated by staff departures after the WTS closes. Assuming these trips are undertaken during the PM peak, the equivalent of one vehicle exiting the site every 15 minutes is not considered to impact on the operation of the off-site priority junctions during this time.
For comparison, the WTS is estimated to generate significantly less traffic than the previously proposed Resource Management Centre that was granted planning permission in March 2010 and which was estimated to have generated 164 two-way vehicle trips (comprising 82 arrivals + 82 departures) during weekday peak hours."
The "Conclusion" of the Executive Summary was:
"Given the low traffic volumes estimated, it is considered that the traffic generated by the WTS would not impact on the local road network and, therefore, no improvement works to the off-site priority junctions would be required."
Assessment of the B184/Chelmsford Road priority junction indicates that the junction will work below capacity during the AM peak hour in 2013 and 2018 and is considered likely to remain so with the addition of WTS traffic, given the low volumes estimated. Although the B184 arm of the B1256/B184 priority junction is shown to be above capacity during future year PM peak hours, the WTS will not generate significant traffic during this period. Four vehicle trips, generated by staff departures, will occur after the WTS closes. Assuming these trips are undertaken during the PM peak, the equivalent of just one vehicle exiting the site every 15 minutes is not considered to impact on the operation of the junction during this time.
In conclusion, given the information presented in this TA, it is considered that the proposed WTS would create no [discernible] highways impact".
" The assessment showed that worst case noise emissions during peak operations (including a +5dB(A) rating penalty in accordance with BS4142 ) do not exceed the lowest measured daytime background noise level [at] any residential receptor by more than +2dB(A) (with the exception of [Brook] Cottage) At [Brook] Cottage, predicted worst case noise emissions do not exceed the lowest measured daytime background by more than +5dB(A), a result which is considered to be of marginal significance."
"External noise levels in outdoor living areas were also considered with respect to the WHO (Guidelines for Community Noise, 2003) external noise level criterion of 55dBLAeq, T to avoid serious annoyance in outdoor living areas. Existing ambient noise levels are already in excess of this value in the external living areas of all nearby noise sensitive receptors, and the site contribution to these levels is not expected to be significant at any property with the exception of [Brook] Cottage. Due to its proximity to the site access route, and the lack of existing protection at the northern boundary between the garden and access road, noise level contributions due to site operations during the peak hour could reach 63dB LAeq, T, which whilst an increase of 3dBA on existing ambient levels, is already at an ambient noise level that exceeds the WHO guidelines and would therefore be of only marginal significance."
"In summary, predicted peak hour noise emissions from the site were found to be compliant with relevant guidance for all nearby residential properties. Noise levels at the residential receptors outside of the peak hours would be lower than those predicted for the peak hour and, therefore, also compliant with relevant guidance. No further mitigation of noise from the site need be considered for these receptors. Night time noise levels resulting from the continuous operation of the stack will also be compliant with relevant internal noise criteria for residential receptors.
It is concluded that operation of the proposed WTS would not have any significant effects on amenity for noise sensitive receptors in the vicinity of the site, having regard to current guidance and policy."
Mr and Mrs Hockley's objection
"Yet again ECC are looking at the environmental issues as separate individual [effects] rather than the cumulative impact that the proposal brings to the existing factors. ".
The committee meeting on 22 June 2012
"In response to the representations received regarding the B1256/B184 junction, it is noted that the Highway Authority has aspirations to improve the junction in the future. The Travelodge and the police station have generated financial contributions which have been paid to the Highway Authority and may be used in the design/implementation of improvements to the junction; however these contributions are not sufficient to fund the entire project. Highway contributions are correctly required according to the proportion of impact a development would have on the highway network, and the proposed development would therefore contribute according to its potential impact."
The planning permission
Other development at Great Dunmow
"With regard to cumulative impact relating to future highway improvements, it is noted that a contribution of £50,000 was required of the applicant prior to commencement of the development towards the design and/or construction [or] implementation of future improvements to the junctions of the B184/B1256 and/or the B184/Chelmsford Road. This figure was noted in the Committee report to be proportionate to the proposed scale of the development. All developments in the area were meant to contribute proportionately to road improvements. Given that the development would generate most traffic outside of peak hours, with only a maximum of 4 staff vehicles during the PM peak-hour period, the localised and in fact the overall impact is not considered to be significant. Therefore the impact did not warrant a requirement for the highway improvements to be in place prior to the beneficial occupation of the permitted development."
"12. As part of the evaluation of Uttlesford local plan proposals, Essex Highways undertook a study to assess the potential impacts resulting from various developments in the region. This includes cumulative consideration of traffic impacts on Great Dunmow as a result of the development in the area including the subject site . This cumulative traffic impact was not assessed in the screening of the application for the subject site as to whether there would be a significant impact or not for EIA purposes. It will be seen that the cumulative impact has in fact been considered to be significant such as to result in major junction changes to cope with increased traffic. The junction changes will be occurring in the immediate vicinity of the claimants' home and (whatever the effect on traffic) are likely to have a significant adverse impact (as what is presently a cul-de-sac appears to be being made into a major road).
14. I also observe that the Essex Highways document is to the effect that junction improvements would justify the significant effects otherwise likely to occur. I am aware that planned mitigation measures can be taken into account when considering whether environmental effects will be significant or not. However, the point for the present is that these cumulative impacts and their mitigation, including the time scale over which that would occur has not been considered at all in the screening process."
"I note from table 8.1 that both in the baseline scenario, and the baseline with committed developments the capacity at the Hoblongs roundabout about which Mr Buxton is concerned is analysed in the same way (as being one or more arms approaching capacity in either of the peak hours). The land to the north and south of Ongar Road is included as commitments in this scenario. It is only when the addition of ULP development is made that it is considered that one or more arms of the roundabout will exceed capacity in the peak hours. Thus I am not convinced that this document demonstrates that the development about which Mr Buxton is concerned will cumulatively cause capacity problems as compared with the current amount of traffic, it is only when the further proposed development is added in that a problem is specifically identified."
Ms Bailey goes on (in paragraph 12) to point out the conclusion in paragraph 8(4) of the document: that, as she puts it, "with junction work by way of mitigation, even with all current commitments and with the future potential development identified there will be no capacity problems".
"With reference to Policy GD8 of the Uttlesford Local Plan, the planning permission [for the waste transfer station] doesn't prejudice the use of the allocated land as a 'Civic Amenity Site" as designated, since there is access to the remaining allocated land via the permitted site."
(1) The standard of review for an EIA screening process is not as high as perversity. When applied to this process, a Wednesbury-based review must acknowledge that the discretion in EIA screening is limited (see Mellor) and that the precautionary approach applies (see, for example, paragraph 43 of Pill L.J.'s judgment in Loader). This proposition finds support in UNECE's guidance on the Aarhus Convention implementation guide (see paragraph 32 above). When, as in this case, there are potential violations of human rights (under article 8 of the Human Rights Convention, and article 1 of the First Protocol), an effective remedy is essential. In these circumstances a conventional Wednesbury approach is insufficient.
(2) The County Council applied an unduly restrictive approach in assessing whether the proposed development was likely to have significant environmental effects. Its screening opinion does not demonstrate the comprehensive assessment required under the EIA directive, consistent with the precautionary approach. It failed to face the question of whether the effects of the waste transfer station on the environment would be significant. The planning permission allows a maximum of 29,400 tonnes of waste to enter the site every year and requires a maximum of 29,400 tonnes of waste to leave. So the site will handle the movement of up to 58,800 tonnes of waste a year, much of it carried in large vehicles. If it had followed the advice in paragraph A36 in Annex A to Circular 02/99, the County Council should have seen that EIA was likely to be required.
(3) The County Council failed to take into account relevant cumulative effects, and failed to see that this was a case of "project splitting". There are likely to be cumulative harmful impacts, in particular from additional traffic including the effects of noise, fumes and air pollution. The proposed development ought to have been considered together with local junction improvements and other highway improvement works in the vicinity of Great Dunmow, the future development of the rest of the site allocated under Policy GD8 of the Uttlesford Local Plan, and the likely increases in traffic that would arise from the other developments proposed or recently permitted in Great Dunmow. The second of those three matters was also an example of project-splitting because the proposed development of the waste transfer station left open the possibility of a civic amenity site coming forward on the allocated land.
(4) Lang J.'s judgment in Mackman supports the argument on this ground. In this case the County Council has accepted that it did not take the cumulative effects into account. The European Commission's guidance refers to "existing/planned projects". Here at least some of the other development already existed or were sufficiently certain: for example, the ambulance station, the improvement of the Hoblongs junction, the development of the rest of the land allocated for a civic amenity site, and the development on the "Land South of Ongar Road". The County Council has maintained in this case that such cumulative effects are not relevant. But that is at odds with Lang J.'s conclusions in Mackman that the District Council did take account of such effects in its screening exercise in that case, and that the Planning Inspectorate's screening decision was flawed by the failure to assess cumulative impact. Mr and Mrs Hockley only have to establish that there is the potential for significant [cumulative] environmental effects to arise (see the judgment of Sullivan L.J. in R. (on the application of Birch) v Barnsley Metropolitan Borough Council  EWCA 1180).
(1) Mr Stookes seeks to persuade the court that it should not apply Wednesbury principles. That is wrong. A similar argument was run in Evans and was not accepted by the Court of Appeal. The court should only interfere with the County Council's judgment on whether there are likely to be significant environmental effects if it considers either that the screening opinion is so defective, either in the approach adopted or in the reasons it contains, that it cannot be allowed to stand, or that the decision that there are not likely to be significant environmental effects is irrational in the Wednesbury sense.
(2) The County Council's screening opinion is lawful. The AMEC documents provided at least enough information on which to base the screening judgment. The soundness of that information was later demonstrated in documents submitted with the application for planning permission. The County Council saw that it was dealing here with Schedule 2 development. With the advice in Circular 02/99 in mind, it considered carefully whether any significant effects on the environment were likely. It was right to take the throughput of 29,400 tonnes as the amount of waste that would be handled by the waste transfer each year, and not to double that figure. In the light of the material submitted by AMEC, it identified the main potential effects. It reached its own screening judgment, and that judgment was a reasonable one.
(3) The screening opinion is not flawed by a failure to take into account cumulative effects. The guidance in paragraph 46 of Circular 02/99 is that authorities should have regard to the possible cumulative effects with any "existing or approved development". When the screening process was undertaken in this case none of the developments referred to by Mr Stookes was either "existing" or "approved''. When planning permission was granted for the waste transfer station, only the development on the site known as "Land South of Ongar Road" had been approved. But in any case the evidence produced to the court on behalf of Mr and Mrs Hockley does not demonstrate that any of the cumulative effects for which they now contend would actually arise, or that they might be significant if they did.
(3) The allegation of "project splitting" is also misconceived. The waste transfer station is not part of an inevitably more substantial development. It is a stand-alone project that will go ahead independently of any other proposals. It does not involve or depend upon any improvements to the Hoblongs junction, or any other works on the highway apart from its own access junction. The Transport Assessment showed this to be so. And Mr and Mrs Hockley do not question the soundness of the engineering judgment itself. Future works to the Hoblings junction, if they are proposed, will be a different project. The same can be said of the civic amenity site. To say, as Mr Greaves does in his witness statement, that such development would not be prejudiced by the waste transfer station is not the same as saying that these are two components of a single project. They are not.
(4) There is nothing in the further submissions made by Mr Stookes in the light of Lang J.'s decision in Mackman. Lang J. did not have to decide whether in its screening exercise the District Council was obliged to take into account other developments. She found that it had done so. Mackman is not authority for the proposition that on the facts of this case the County Council's screening opinion was vitiated by a "failure" to consider cumulative effects. In any event the evidence before the court and indeed the screening opinion upheld in Mackman goes against that conclusion. There is no basis in evidence for the assertion that the proposed waste transfer station would cause or contribute to any cumulative effects that ought to have been considered in the screening of this development (see paragraph 37 of Sullivan L.J.'s judgment in Boggis).
Issue (2) Policy GD8
The relevant law
The officer's report and the decision notice
"ULP Policy GD8 (Civic Amenity Site and Depot) identifies the need for a civic amenity site to serve the southern part of Uttlesford. A 1.83 hectare site is allocated for use as a civic amenity site and depot.
It is considered that the use of the site as a waste transfer station does not directly comply with ULP Policy GD8. During consideration of the previous planning application it was considered that the proposed Recycling Centre for Household Waste, parking for refuse collection vehicles and waste transfer building, were akin to the waste use required by the policy and that any breach of that policy could only be considered to be marginal.
The current application proposes only the waste transfer element, which is not a requirement of ULP Policy GD8. Therefore, although the proposed use is a 'waste' use which could still be considered to be akin to that required by the policy, it is considered that in the strictest sense the development would be a departure from ULP Policy GD8."
" [There] are no concessions in relation to the current judicial review . Circular and Direction 07/99 was applicable to [the previous proposal], whereas Circular and Direction 02/2009 is clearly applicable to [this proposal], resulting in no requirement to refer to the Secretary of State in the latter instance."
"The proposed development is considered to be contrary to ULP Policy GD8 (Civic Amenity Site and Depot), however it is considered to be a similar waste use which, as noted previously, would have less impact than the previously approved use which was broadly in compliance with ULP Policy GD8. It is also noted that [the District Council] has raised no objection to the scheme."
(1) Although there was no requirement for the Secretary of State to be consulted on the proposal for the waste transfer station, it was still necessary for adequate and rational reasons to be given for the departure from Policy GD8. This was not done. Both the officer in his report and the County Council's committee acknowledged that the proposal did not comply with Policy GD8. But the analysis it used to justify granting planning permission for the development makes no sense.
(2) The officer said the proposed use was ''akin to that required by the policy''. That is not so. A waste transfer site is a wholly different kind of development from a civic amenity site, and will give rise to quite different environmental effects. A civic amenity site is highly unlikely to accept food waste, but the waste transfer station is expected to accept more than 4,000 tonnes of such waste every year. A civic amenity site is mainly a facility for recycling, whereas a waste transfer station handles residual waste. Unlike a civic amenity site, a waste transfer station will be used by heavy vehicles, which are likely to give rise to noise nuisance. And in any event Mr Greaves' evidence suggests that the waste transfer station will be developed as well as the civic amenity site, not instead of it.
(3) It was not rational to regard the departure from Policy GD8 as acceptable because the breach of policy in the previous proposal "could only be considered to be marginal". If the departure from policy had truly been "marginal" the County Council would not have consented to the planning permission being quashed. This development would be a "fundamental departure" from Policy GD8.
(1) The County Council did not misinterpret Policy GD8. It understood that the policy effectively creates a presumption in favour of a civic amenity site on the allocated land. The officer was entitled to tell the members that the proposed use was "akin" to such a development. This was a reasonable view. Both a waste transfer station and a civic amenity site are operations for the handling of waste. The assertion that a civic amenity site would have different effects from a waste transfer station is highly speculative, inappropriate in these proceedings, but in any case irrelevant.
(2) There was no error of law. The County Council considered all of the impacts of this proposal including those from noise and traffic, and concluded that they would be acceptable. It did not have to consider the effects of a civic amenity site being developed on the adjacent land. If such a development is promoted, it will have to be considered in the knowledge that the waste transfer station is approved or already in use.
(3) There is nothing inconsistent between the County Council submission to judgment in the previous claim for judicial review and its conclusion in both cases that the breach of Policy GD8 was "marginal".