England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		22/07/2014

Mr Justice Cranston:

I INTRODUCTION

1. In this judicial review the claimant challenges a grant of planning permission by the defendant, Suffolk County Council ("the County Council"), dated 24 October 2013. The planning permission authorises the construction of a development for dealing with waste on a site at Rougham Hill, Bury St Edmunds. Permission to apply for judicial review was granted by Collins J on 18 March 2014.
2. The County Council is both the waste authority and the local waste planning authority for the area in which the site is located. In effect it was granting planning permission to itself as the waste authority to undertake the development on the site. The claimant is a local resident, who is acting individually and on behalf of a group of local residents, including a councillor of St Edmundsbury Borough Council ("the Borough Council"), Cllr Stamp. The first Interested Party, the Borough Council, is the local planning authority for the area in which the site is located, but because it is not the waste planning authority it had no hand in the decision on the planning application. It strongly objects to the waste development. The second Interested Party, Hopkins Homes Ltd, is a developer which is interested in an adjacent area to the south of Rougham Hill which it wishes to develop for housing. It has rights over 50 of the 70 hectares in the northern area of the Greenfield land to the south of Rougham Hill intended for development under the Borough Council's planning policy BV7. It is in the process of preparing an environmental statement and expects to make an application for outline planning permission in November 2014.

II BACKGROUND

The site

3. The site is an area of approximately 1.2 hectares and is used by an existing household waste recycling centre ("HWRC"), with the rest being vacant land. It is located to the south east of Bury St Edmunds, on Rougham Hill, immediately to the south of the busy A14, next to its junction with the A134, and adjacent to a lorry park. (The A14 is a dual carriageway and part of the trunk road network which links Ipswich and Felixstowe.) The existing HWRC has been in operation since 1981 and is leased by Suffolk Council from the Borough Council. The site is partly screened by trees and a perimeter hedgerow but there is little or no perimeter vegetation screening along the southern boundary. There are no other household waste recycling sites serving the immediate area, with the nearest being approximately 12 miles away, and another 15 miles away at Mildenhall.
4. The closest residential dwellings to the site at present are approximately 200m away. The claimant's home is 600m away. Within 200m of the site, on the other side of the A14, is a Sainsbury supermarket. There is also a small industrial park close by with about twelve units and a government laboratory. Greenfield land is immediately to the south of the site.

Planning policies

5. The St Edmundsbury Local Development Framework, Core Strategy, December 2010, policy CS11, provides that the general area of south-east Bury St Edmunds is a location for long-term strategic growth. It states that as part of this there are to be 1250 homes of mixed tenure and size, including affordable homes. However, "the actual amount of development will be determined by environmental and infrastructure capacity considerations and the preparation and adoption of detailed masterplans ..." Policy NE 5 of the St Edmundsbury Replacement Local Plan 2016, "Environmental Quality", provides that noise generating development will not be permitted if it would adversely affect the users of existing or proposed noise-sensitive development.
6. Bury St Edmunds Vision 2031 is a draft development plan document dated June 2013. It recalls that the Borough Council's core strategy identifies south-east Bury St Edmunds as an area for strategic growth but did not define specific boundaries. Concept statements had been prepared and policies BV3-BV7 now define the specific boundaries for each of the strategic sites. These were adopted by the Council in May 2013 and do not form part of the Bury St Edmunds Vision 2031 but are contained in appendices. Before development can commence, Bury St Edmund Vision 2031 states, "a masterplan will need to be prepared and adopted for each site … The content of each masterplan will have to accord with the Local Plan and the content of site concept statements".
7. On the same day as the decision under challenge, Bury St Edmunds Vision 2031 was submitted to a local plan inquiry. The planning inspector endorsed the allocation of 70 hectares of land immediately to the south of the site for a strategic housing development. The Borough Council has yet to consider the planning inspector's report.
8. Appendix 10 to Bury St Edmunds Vision 2031 is the concept statement prepared to provide the parameters and framework for the development of south-east Bury St Edmunds as defined in Policy BV7, in other words, the 70 hectares of greenfield land south of the site to be allocated for development in accordance with policy CS11 of the Core Strategy. It constitutes supplementary planning guidance. The Borough Council expects that the issues raised in this concept statement will be given full consideration in the masterplan to be developed for the area and prior to the determination of any planning applications for the area. The concept statement refers to a relief road to provide a strategic link with the new development and the need to relocate the lorry park, which falls within the boundaries of the area. The concept statement adds at paragraph 1.5:

"currently the household recycling site is not seen as contributing negatively to the site and is not proposed to be removed in the early stages."

It notes that the integration of the household waste site will require careful consideration and a suitable new location will be required for the lorry park. The concept statement includes a plan of potential housing development. The plan shows a green corridor between the site and any potential housing development. The plan has a primary school, a community centre and some areas for employment.

9. Suffolk County Council has a waste core strategy, March 2011, including policies WDM2, WMD5, WMD7 and WMD8. Current government policy includes Planning Policy Statement 10 "Planning for Sustainable Waste Management" which was continued by the National Planning Practice Guidance published in March 2014. It states at paragraph 21 that "in deciding which sites and areas to identify for waste management facilities, waste planning authorities should assess their suitability for development" against criteria which includes "the physical and environmental constraints on development, including existing and proposed neighbouring land uses (see Annex E)." Annex E of PPS 10 lists locational criteria including visual intrusion, air emissions, including dust and odours. It also refers to the need to consider the "proximity of sensitive receptors" and goes on to state at (1): "Likely proposed development in the vicinity of the location under consideration should be taken into account in considering site suitability and the envisaged waste management facility".

The planning application

10. In 2010 and 2011 the County Council as waste authority carried out a site selection exercise based on waste collection routes to identify the optimum locations for waste transfer stations. The aim was to minimise vehicle mileage depending on where waste was generated around the county. Bury St Edmunds was identified as a priority location. A site search in the Bury St Edmunds area included the surrounding areas of Moreton Hall and Mildenhall Road. The only appropriate site identified in the Bury St Edmunds area was the "extended site of the existing HWRC on Rougham Hill". Other sites were ruled out due to incompatibility with adjacent land uses, insufficient plot size, land availability issues and environmental constraints.
11. The application for planning permission for the new waste facility was made by the part of the County Council which is the waste authority to the separate part which is the waste planning authority. The application dated 22 July 2013 relates to a combined waste transfer station for municipal waste ("WTS") and a split-level household waste recycling centre ("HWRC"). The application covers associated infrastructure including systems for surface water management, hard standings, internal roads and landscaping. Much of the hedgerow presently on the site is to be removed to accommodate the enlarged facility. New perimeter fencing and security lighting will be installed.
12. The WTS will be at the front of the site and will receive waste from kerbside rubbish collections, from the HWRC and from two other HWRCs. The waste will then be transferred into larger lorries to take it as appropriate to a recycling facility, a composting facility or an energy-from-waste facility. It will process some 95,000 tonnes of waste per annum. The HWRC will be at the rear of the site and will be a location for householders to bring domestic waste for recycling. The facility is to be orientated so that the entries to and exits from the building where the waste transfer activities take place face northwards, towards the A14 and away from the greenfield land to the south. The entries and exits will be fitted with fast-acting roller doors which will be kept shut other than when vehicles are entering or leaving the building. Over 60 vehicles will arrive and depart each day except Christmas Day and New Year's Day, representing a 25 percent increase in HGV traffic flow on Rougham Hill.
13. The new facility will accept hazardous waste. The existing HWRC on the site takes some 550 tonnes of hazardous waste per annum. The County Council does not operate any WTS facilities at present, but delivers waste to four waste transfer stations operated by others. That waste included in 2013-2014 21 tonnes of hazardous waste, of which 18 tonnes came from the Council's HWRCs. All the Council's HWRCs accept hazardous waste, and the total amount received in 2013 was approximately 4047 tonnes (small domestic appliances, cathode ray tubes, fridges/freezers; car batteries, engine oil etc).
14. The environmental assessment report accompanying the planning application was prepared by the County Council's agents, Atkins Ltd, in July 2013. The report referred to both the HWRC and the WTS elements of the facility. It explained that a misting system would reduce dust and odour: para 2.4.15. The report stated that both the HWRC and WTS would accept hazardous waste.

"2.7.7 The existing HWRC accepts hazardous wastes such as gas bottles, car batteries and oil. These are all kept in specifically designed containers until collection is made by the appropriate contractor. The redeveloped HWRC will continue to accept such materials.

2.7.8 The WTS may accept small amounts of hazardous waste including paint, batteries, asbestos and clinical waste. These will all be stored in a secure location onsite until collection is made by an appropriate contractor."

15. Under the heading "strategic plans" the report referred to the proposal for 1250 houses on the adjacent greenfield site:

"As this is not committed development and no specific details are available, this application has not been qualitatively considered through the assessments provided in this document": para 2.10.5.

The WTS would involve an extra 61 HGVs using Rougham Hill each day, although since 480 HGVs already used that road daily the increase would be 25 percent: para 3.7.22. Noise levels from night time working needed to be addressed: para 3.8.4.

16. Also accompanying the planning application was a sustainability report, dated 22 July 2013, also prepared by Atkins Ltd for the County Council. It listed various sustainability measures for guidance. Under the heading "health and wellbeing", the report listed "water quality" and stated:

"All water systems must be designed in compliance with the measures outlined in the Health and Safety Executive's "Legionnaires' disease – The control of legionella bacteria in water systems". Approved Code of Practice and Guidance, 2000."

In fact the design of the misting system was changed to use chlorinated mains water rather than rainwater collected for this use, to avoid potential problems with legionella.

Environmental impact assessment

17. Prior to the planning application being lodged, the County Council as applicant made a screening request to itself as the waste planning authority regarding whether an environmental impact assessment ("EIA") was required under the Town and Country Planning (Environment Impact) Regulations 2011, SI 2011 No 1824 ("the EIA Regulations"). That was dated 18 June 2013. Under those regulations this is a Schedule 2 development.
18. The screening request stated that anticipated tonnage of waste received by both the HWRC and WTS would increase with population: paragraphs 4.4.1-4.4.2. In terms of hazardous waste, the screening request said:

"4.5.1 The existing HWRC accepts hazardous wastes such as gas bottles, car batteries and oil. These are all kept in specifically designed containers until collection is made by the appropriate contractor. The redeveloped HWRC will continue to accept such materials.

4.5.2 It is not anticipated that the WTS will accept hazardous waste. However, as waste will arrive from household collections, some hazardous waste may be included such as paint, batteries, tyres, etc. These will all be stored in a secure location onsite until collection is made by an appropriate contractor."

19. In relation to air emissions the screening request stated that waste sites can affect air quality through factors such as odour, dust and bioaerosols but that "in this instance the waste transfer will take place within a building and the retention time for the waste on site will not be very long. Therefore it is not considered that the site will generate any significant impacts and a full dust/odour assessment is not proposed": para 5.4.1.
20. The screening request then set out the criteria for assessment including a reference to Government Circular 02/99, Annex A. It noted that Circular 02/99 states at paragraph A36 that an EIA is more likely to be required for installations handling waste where "new capacity is created to handle more than 50,000 tonnes per annum….": para 6.5.1. This guidance was cancelled on 6 March 2014 by the newly published National Planning Practice Guidance, but the same 50,000 tonnes threshold is included in the new Guidance. The screening request accepted that some 90,000 tonnes per annum throughput "is above the indicated threshold set out above." The screening request concluded that "it is not anticipated that the site will create any significant impacts on the environment or for sensitive receptors": para 7.
21. The County Council issued a screening opinion on 8 July 2013. This concluded that although the proposal had the potential to be an EIA development, an EIA was not required having regard to Circular 02/99 on the implementation of EIA Regulations. The screening opinion considered the framework for screening set out in Schedule 3 of the EIA Regulations. First are the characteristics of the development. Under "size", the screening opinion noted that both HWRC and WTS waste would include items such as gas bottles, car batteries and oil, which are classed as hazardous, and that these would be stored separately until they were collected by the relevant contractor. The screening opinion concluded that in terms of Circular 02/99 the "footprint is much smaller than might require an EIA". It added that although the planned 94,682 tonnes per annum figure exceeded the 50,000 tonnes guideline in circular 02/99, the proposed development was "just for bulking up and onward transportation" and that "when considered against the other Circular 02/99 criteria of the nature of the potential impact in terms of discharges, emissions or odour, the likelihood of significant effects occurring is low."
22. Under the heading "the cumulation with other developments", the screening opinion noted that under the Borough Council's planning policies the site was within an area identified for 1250 new homes. The screening opinion stated that there would be a green corridor alongside the southern boundary of Rougham Hill, which would serve as a buffer between residential development and the HGV route. As to "pollution and nuisances", the screening opinion recorded that the Borough Council's planning department agreed that an EIA would not be required and that the Borough Council's environmental health officer was content with a desk top study in respect of land contamination. Moving from characteristics of the development to its location, the screening opinion stated that the main potential for significant environmental impact would be as a result of HGV noise upon residential properties, but that the existing lorry park was much closer and that had to be added to the traffic noise from the A14.
23. The Council consulted the Environment Agency on the issue of screening. In a response on 10 July 2013 the Environment Agency noted that waste transfer facilities can have amenity issues such as noise, dust and odour and give rise to complaints if these are not fully considered at the planning stages. It understood that the area around Rougham Road had been identified as a potential area for residential development and this had to be taken into consideration when assessing any planning application. "Waste Transfer Stations sited near residential areas are highly likely to result in complaints regarding noise, odour and dust." However, the Environmental Agency stated:

"We agree, in principle, with the conclusion reached under paragraph 7 of the screening document that the development proposal would not give rise to any potential significant environmental effects and accordingly an EIA is not required. In any event, we also consider that standard mitigation measures enforced by way of conditions under any planning permission and/or Environmental Permit will reduce any potential significant environmental effects to a minor or negligible level."

24. Hopkins Homes was dissatisfied with the County Council's screening opinion and on 8 August 2013 sought a screening direction from the Secretary of State under the EIA Regulations. Its request stated that certain issues were not afforded due or any regard including the size of the development, which "was almost double the threshold of 50,000 tonnes"; that the handling of waste as a transfer station, although different from waste treatment, had the potential to cause significant effects "by virtue of the volume of waste to be handled"; that there would be a potential loss of 0.3 hectares of bat habitat; that the 100 additional HGV movements per day would produce air emissions including NOX and PM10; that there were significant effects on future occupiers of the land for housing in draft policy BV7 of Bury St Edmunds Vision 2031, with the result that the scale of the proposed waste transfer site could result in part of the allocation of land there being sterilized; that the site layout lacked any southern perimeter vegetation screening; and that the highways assessment ignored cumulative effects arising from the main access to the housing development and the need for a new relief road from Rougham Hill to Sicklesmere Road.
25. On 27 August 2013 the Secretary of State issued a screening direction written by his planning casework manager, David Jones. Hopkins Homes had included in its request to the Secretary of State copies of the Council's screening request, the Council's screening opinion and an extract from Bury St Edmunds Vision 2031. Mr Jones also considered the July 2013 environmental assessment report and its appendices, the design and access statement, and the sustainability assessment. He did not contact the Council or make any inquiries of the Environment Agency as to its position. The screening direction which Mr Jones issued concluded that the development would not be likely to have significant effects on the environment by virtue of factors such as its nature, size or location. He gave these reasons:

"In relation to landscape impact, the Secretary of State notes that this proposal does not sit within any area protected under international, national or local designation for their ecological or landscape value. Nor does it impact on the setting of any heritage asset. The Secretary of State has, however, given careful consideration to the issues you have raised about the likelihood of significant visual effects on the proposed urban extension and potential impacts that may arise from the additional HGV movements. He is satisfied that the retention of perimeter vegetation will act as an adequate screening for most of the site and it would be expected that any outstanding concerns about this matter will be addressed as part of the planning application process. The Secretary of State does not consider this matter, in the absence of the landscape designations discussed above, to justify EIA. Whilst consideration has been given to the likely impacts generated by additional HGV movements, there is insufficient evidence, in his view, that significant effects are likely to occur. We would, though, expect to see, as part of normal working practices at the time the application is submitted, suitable evidence as to the potential impacts the proposal would make in terms of potential cumulative effects on other developments and we note that a travel plan would form part of the planning application submission."

26. Mr Jones has stated in a witness statement filed on 11 February 2014 that he had not been provided with the letters from the Environment Agency warning of concerns in locating waste transfer sites close to residential areas (see above). As well he had not been informed about the 5,000 tonnes of hazardous waste that may be processed at the site each year. In his witness statement, Mr Jones says that the opinion of the Environment Agency, coupled with the amount of hazardous waste potentially handled at the site, "would have been given significant weight and this may have led to a conclusion that a positive screening direction was necessary."

Views of Borough Council, developer, claimant and Environment Agency

27. Although the Borough Council is not the planning authority for the waste development, its development control committee considered the planning application to the County Council on 3 October 2013. In a report the Borough Council's planning officer had recommended approval but recommended that

"concerns are raised with the County Council relating to the reduced capacity of the HWRC site, the landscape impact of the proposed building, the proposed hours of construction works and the absence of an assessment of the potential impact upon the future housing at the nearby allocated site in respect of noise and odour."

28. Under the heading "the principle of development" the report acknowledged that the site is currently used as a HWRC and therefore the use of the site for the WTS was not contrary to local planning policy. The report noted that the scale of the facility had pushed it to the margins of the site leaving insufficient space to allow adequate landscape mitigation. The cross section drawings illustrated that the slab of the building would be above the level of Rougham Hill and its bulk was likely to have a significant detrimental impact on the landscape to the south of the site.
29. In relation to the reduction in household waste recycling space the report concluded that improved organisation and level access to bins could speed the disposal time for individuals and compensate for some loss of space, but that the facility would need to accommodate not only the current catchments, but also the proposed growth by over 5,000 households to 2031. The submitted layout did not demonstrate that this could be achieved. The report recorded the opinion of the Borough Council's officers that the noise and odour assessments within the County Council's environmental assessment report should be reviewed to take the earmarked residential development into account. Instead, the report stated, what the environmental assessment report had done was to base potential impact on the closest residents being 230m away.
30. The report also stated that the Borough Council's environmental health team had concerns in respect of odour control. While these could be raised when considering the environmental permit which the facility would need, it was prudent to raise these at the planning application stage. Incoming materials would often be malodourous, especially during the summer months, and the control of odours would therefore be important. As the doors of the facility were opened odour would be displaced into the external environment on a regular basis. Air-locks were not standard practice for waste transfer stations and had not been considered for the facility.
31. Despite the report's recommendation - that the proposed development be supported - the Borough Council development control committee voted 14-0, with 2 abstentions, to object. It recorded seven reasons for opposition including the adverse impact on the landscape; the poor design of the facility, in particular as it related to Rougham Hill and the earmarked site for housing; the detrimental impact on the household waste recycling facility due to its reduction in size; the detrimental impact on the adjacent highway network, which was already at capacity at peak times; the environmental impacts in respect of lighting, noise and odour; the absence of a clear demonstration that no suitable alternative sites were available; and the lack of regard for the allocated strategic growth site immediately to the south of Rougham Hill set out in Bury St Edmunds Vision 2031. The committee requested that the reasons for opposition be communicated to the County Council in the strongest possible terms.
32. In August 2013 Hopkins Homes objected to the County Council's planning application for the waste site. It objected that the facility would have a negative impact on the quality and character of the area and amenity of future occupiers. It considered that the proposed WTS would negatively impinge on the amenity of future occupiers of the new neighbourhood by virtue of noise, air quality, visual amenity and traffic generation. While the officer's report of the Borough Council did not envisage that the existing HWRC would contribute negatively to the site, that did not take into account the larger facility contemplated in the County Council's planning application. It would not be compatible with a high quality, new neighbourhood.
33. In a witness statement dated December 2013, the development manager of Hopkins Homes has stated that the establishment of the waste transfer station at Rougham Hill would be completely incompatible with the proposed residential development to the south. With the location of the main entrance to the new development being adjacent to the waste facility, this would affect the saleability and viability of the project.
34. On 22 August 2013 the claimant sent a detailed objection to the development in the course of which he asserted that the proposed misting system sounded a potential candidate for legionella.
35. The Environment Agency had been consulted on the planning application and it provided a response dated 23 August 2013. That pointed out that the site lay in Flood Zone 1, which is of low flood risk, but that because the site was greater than one hectare a flood risk assessment was required. Because none had been provided it objected to the grant of planning permission. The Environment Agency noted that the area around Rougham Hill had been identified for housing and recommended that the Council took into account "any proposed residential development when determining this planning application". It added:

"Waste Transfer Stations sited near to residential areas are likely to result in complaints relating to noise, odour, dust and pests. The severity of these impacts will depend on the size of the facility, the nature of the waste it takes and prevailing weather conditions. If the operator can demonstrate that they have taken all reasonable precautions to mitigate these impacts, the facility and community will co-exist, with some residual impacts. In some cases, these residual impacts may cause local residents concern, and there are limits to the mitigation the operator can apply. Only in very exceptional circumstances would we revoke the operators permit."

Upon submission of a revised flood risk assessment the Environment Agency withdrew its objection to the grant of planning permission on 7 October 2013.

Planning permission granted

36. The Council's Development Control Committee ("the planning committee") considered the application for planning permission for the proposed facility on 17 October 2013. The planning committee had before it the report of its planning officer. The report recommended approval, subject to the impositions of 31 conditions. In the "brief summary" at the outset, the report referred to objections from locals and Hopkins Homes ("the prospective developer of the urban extension proposed in the Bury St Edmunds vision 2031 draft Development Plan Document") but stated that the proposal was considered to be appropriately located and would not have unacceptable impacts upon the existing commercial and residential development in the area "or the proposed urban extension".
37. The reasons given were that firstly, the proposal was in accordance with the Development Plan including the Suffolk Waste Core Strategy and the St Edmundsbury Core Strategy, and saved policies of the St Edmundsbury Local Plan; secondly, the development would not prejudice the urban extension proposed in the St Edmundsbury Vision 2013 draft Development Plan document, nor would it be detrimental to the occupiers of the existing residential properties and neighbouring commercial properties; and thirdly, the facility would provide improved HWRC facilities and an important WTS facility to enable the efficient onward transportation of waste by concentrating it onto fewer, larger HGVs: paras 6-8.
38. The report noted that a limited amount of third party waste may also be accepted and there "would also be small amounts of hazardous waste such as paint, batteries, asbestos and clinical waste …": para. 15. Water sprays within the building would reduce odours and dust, and roof mounted extraction fans would help circulate air through the building: para. 20. At paragraphs 68 and 69 the report summarised the stance in the officer's report of the Borough Council and the views of its environmental health team. "No objection" was recorded under the reference to the Environment Agency. In the summary of representations, one health representation was recorded, although this was not the one from the claimant relating to Legionella. There was a reference under the heading "planning policies" to National Policy PPS10, the Suffolk Waste Core Strategies ("WCS)" and the Borough Council's Core Strategy of December 2010 ("SECS"), CS11, NE5 and NE6, and the Bury St Edmunds Vision 2031. A copy of Appendix 10 to the latter, the concept plan, was attached to the report.
39. As to the Council's waste policy, the report stated:

"96. WCS Policy WDM5 lists suitable sites for waste development including those sites already in existing waste management use and much of this site is in existing waste use. Policy WDM8 also allows HWRCs to be located on sites other than those listed in Policy WDM5 if no other land is available so long as the site is compatible with the environmental criteria under Policy WDM2 and hence the location of the extension to the existing HWRC would be acceptable under this policy."

In relation to housing the report said:

"97. The SECS Vision and Policy CS11 make reference to an urban extension in the vicinity of the site. It considered that the proposal would not be in conflict with the proposed urban extension and would in fact be an important part of the supporting infrastructure for Bury St Edmunds as a whole. Therefore this would also be in accordance with SECS Strategic Spatial Objective 1."

40. The report addressed the issue of noise and odour as follows:

"99. Noise levels associated both with the development and traffic would not rise above background levels at existing residential properties during the conditioned working hours.

100. The short waste retention time, coupled with the design and operation of the facility, mean that odour would not become an issue to neighbouring properties."

The environmental permit would reduce further odour and vermin issues for the surrounding area: para. 105. At para 106, the report concluded that the "environmental criteria as set out under policies PPS 10 Annex E, WDM2 and NE5 were not offended by this proposal." Only a small amount of hazardous waste would be transferred: para. 107.

41. In various passages the report considered the possible impact of the proposed facility on the potential housing development on the greenfield land south of the site and advised that there would be no conflict. In particular, it advised the planning committee that:

"109. A number of objections have been made to the perceived conflict with the Bury St Edmunds Vision 2031 (Vision 2031) draft Development Plan Document. Vision 2031 delineates an area of land to the south of the proposed site that for an urban extension including 1250 houses (see Appendix 4). This document has yet to be submitted and considered at an Examination in Public and therefore does not yet form part of the Development Plan.

110. Neither St Edmundsbury District Council planning nor environmental health objected in principle to the proposed development however they both expressed concern over the potential impact upon the proposed urban extension.

111. As one would expect there is no detailed design for the urban extension within Vision 2031. There is concept statement and accompanying plan however which indicate a general layout including a green corridor opposite the proposed WTS. The green corridor would serve as a buffer between the urban extension and the proposed WTS. It also might be possible to relocate the areas indicated for employment to the northern end of the urban expansion. It is considered therefore that the proposed HWRC and WTS need not be detrimental to the urban extension."

Appendix 3 of the report set out Policy NE5 of the St Edmundsbury Replacement Local Plan 2016.

42. At its meeting on 17 October 2013 the planning committee had an updating email from the Borough's planning officer, setting out the strong objection of the Borough's development control committee. It had written representations from Hopkins Homes. The planning committee also heard oral representations. The issue of the possible impact of the proposed facility on the potential housing development on the greenfield land featured in oral representations by Councillor Stamp, Councillor Beckwith and Adrian Williams, a local resident. It was also raised in the oral submissions on behalf of Hopkins Homes and those of the chair of the Borough Council's development control committee, Cllr Jim Thorndyke. The claimant also addressed the planning committee. He stated that the facility would result in the capacity of the existing HWRC being halved and that the traffic assessments were meaningless as they did not take into account the proposed development of 1250 new homes. He did not refer to his concern about Legionella disease.
43. The planning committee resolved to grant planning permission. As reasons for its decision, the committee concluded that the proposal was in accordance with the Development Plan including the Suffolk Waste Core Strategy and the St Edmundsbury Core Strategy and with saved policies of the St Edmundsbury Local Plan. The majority of members considered that the proposal would not prejudice the urban extension proposed in the Bury St Edmunds Vision 2031 draft Development Plan Document, nor would it be detrimental to the occupiers of existing residential properties or neighbouring commercial properties. The facility would provide improved HWRC facilities and an important WTS facility, which would enable the efficient onward transportation of waste onto fewer, larger HGVs.
44. The decision notice approving the development was issued on 24 October 2013.

Condition 18 and events post decision notice

45. As approved by the County Council's planning committee on 17 October 2013, Condition 18 of the planning permission imposed maximum limits on the amount of waste which the facility could accept. Condition 18 read:

"18. Within a 12 month period a maximum of 95,000 tonnes of municipal waste and recycled materials may be accepted at the site of which no more than 5,000 tonnes is hazardous waste. The operator shall keep a record of all imported material, which shall be made available to the Waste Planning Authority on request."

The reason given for this condition in the decision notice was "to clarify those details approved and in the interests of minimising the impact on the amenities of the local area in accordance with Policy WDM2 …"

46. The claimant's solicitors sent a pre-action protocol letter on 19 November 2013, complaining about the screening opinion and screening direction having been made on the basis of incomplete environmental information. The pre-action protocol letter highlighted the amount of hazardous waste which would be handled at the site and quoted the 5,000 tonnes figure authorised in Condition 18. The response dated 3 December 2013 did not deal with this point.
47. The claim form was issued on 4 December 2013. A copy was sent to the Environment Agency but it stated that it did not intend to be a party to the proceedings.
48. On 20 December 2013, the County Council filed its Acknowledgement of Service and Summary Grounds, which made no mention of the hazardous waste limit in Condition 18. On the same day the County Council as waste authority made an application to itself as waste planning authority for a non-material amendment to the planning permission. That was to make minor amendments to the wording of some of the planning conditions (but not condition 18) to ensure they were clear and enforceable. The County Council granted the application on 10 January 2014 and the claimant's challenge to these conditions was subsequently withdrawn.
49. On 12 March 2014 the claimant made a witness statement spelling out his concern about the risk of Legionella at the planned waste facility. He had already raised the issue in emails to the County Council after planning permission had been granted. The County Council had said that strictly speaking this was a health and safety, not a planning, issue.
50. Following the decision of Collins J on 18 March 2014 to grant permission to the claimant to seek judicial review, the County Council as waste authority applied to itself, as waste planning authority, for a non-material amendment to Condition 18. That was on 7 May 2014. The application sought to vary the figure of hazardous waste which could be handled at the site from 5,000 tonnes to 800 tonnes. The officer's report in relation to this application stated that the proposals would "make minor amendments to the wording of the existing planning condition 18 to ensure that the conditions of permission are clear and enforceable" and that the proposed change "is non-material but nonetheless beneficial. It has come about in response to a judicial review of the decision to permit planning permission and in the opinion of the Waste Planning Authority it would clarify the intent of the condition 18." The application was granted on 23 May 2014. Accordingly, condition 18 now provides:

"18. Within a 12 month period a maximum of 95,000 tonnes of municipal waste and recycled materials may be accepted at the site of which no more than 800 tonnes shall be hazardous waste. Of that 800 tonnes, no more than 20 tonnes shall be asbestos and clinical waste. The operator shall keep a record of all imported material, which shall be made available to the Waste Planning Authority on request."

51. A few weeks earlier, on 8 May 2014 the County Council lodged a witness statement with the court from its head of waste control, Steve Palfrey. This is to the effect that, although condition 18 imposed a maximum limit of 5,000 tonnes of hazardous waste, it was never the expectation or intention of the County Council as the waste authority constructing and operating the facility that it would actually receive that much hazardous waste. It seems to me that this evidence is too late to be admitted.

III GROUNDS OF CHALLENGE

Grounds 1-2: the new housing

52. The first grounds advanced by the claimant arise from what are said to be legal errors committed by the County Council in its failure to have regard to any assessment of the impact of the new waste facility on the future occupiers of the 1,250 new homes identified in the Borough Council's planning policies. None of the environmental assessments submitted to inform the planning application took account of this housing development. This was contrary to the advice of the Environment Agency in their consultation response of 23 August 2013, which highlighted the impact of waste transfer stations on nearby residential areas.
53. In her well formulated and cogent submissions on behalf of the claimant, Ms Wigley contended (as Ground 1) that the upshot was that the planning permission was contrary to section 70 of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004, both of which require that decision makers have regard to the statutory development plan and that applications be "determined in accordance with the development plan unless material considerations indicate otherwise". In this case the County Council's planning committee overlooked Policy NE5 of the St Edmundsbury Replacement Local Plan 2016, which addresses noise generating developments adversely affecting the users of existing or proposed noise-sensitive developments. No assessment was undertaken of the impact of noise from the new facility within the proposed residential development identified by Policy CS11 and the Vision Policy BV7. Paragraph 99 of the officer's report referred to noise levels but only as regards existing residential properties. In Ms Wigley's submission, it was a clear legal error not to assess the noise impact on future residents, who will be significantly closer to the site than existing residents, even if their precise locations are not yet determined.
54. Also concerning planning policies was the claimant's Ground 2, that the site selection exercise supporting the application failed to have regard to paragraphs 21, 24 and 29 and Annex E (1) of PPS 10, which require planning applications for sites for new or enhanced waste management facilities to be assessed against specified criteria. These were material considerations, yet the planning committee was not advised about them and the need to consider the physical and environmental constraints caused by proposed neighbouring uses, including likely sensitive receptors. The environmental impact assessments submitted with the planning application expressly failed to consider the impact on residents in the proposed housing development on the basis that it was not committed development.
55. No reasonable planning authority, Ms Wigley submitted, could conclude that the development "would not prejudice the urban extension proposed in the St Edmundsbury Vision 2013 draft Development Plan Document" (in the words of the officer's report) against the background that delivery of the 1,250 homes would inevitably result in new dwellings being closer to the facility site than the existing dwellings; that the County Council had information from Hopkins Homes that the planning application would result in a sterilisation of at least part of the strategic housing site; and that the County Council had no information as to the environmental and amenity impacts on the occupiers of the dwellings proposed in the strategic housing site. Thus the planning permission was unlawful both for failure to take into account material considerations and for a Wednesbury unreasonable conclusion on what was taken into account.
56. In my judgment the fundamental problem facing the claimant with these two grounds is that, at the time of the decision, there were no concrete plans for housing development on the greenfield site. The Borough's 2010 Core Strategy, CS11, stated that as part of long term strategic growth there were to be 1250 new homes in "south-east" Bury St Edmunds, but it was no more precise in terms of geography than that. Policy statement BV7, adopted in March 2013, then specified the boundaries where the new housing would be located. But the concept statement, which was Appendix 10 of the Bury St Edmunds Vision 2031, identifies the location of potential housing in the accompanying plan in only the most general terms. There is still no master plan, laying down the location of potential housing, which Core Strategy CS11 explicitly requires. There is still no application for planning permission for the new housing development, albeit that Hopkins Homes anticipates submitting one by the end of the year.
57. Given this, it cannot be said that the County Council failed properly to have regard to planning policies. The officer's report to the planning committee expressly referred to Policy NE5 of the St Edmundsbury Replacement Local Plan 2016 and PPS10. Moreover, the officer's report in the opening summary, and in paragraphs 110 and 111 (quoted earlier in this judgment), referred to the urban extension i.e. the new housing, and the potential impact of the new waste facility on it. It is true that there was no assessment of the noise impact of the waste facility on the new housing development, an assessment of noise impact as laid down in policy NE5. However, I accept Mr Stinchcombe QC's submission for the County Council that it was not possible to identify the precise location of potential housing and therefore the Council could have done little more than guess where any new houses might be, rendering any formal assessment arbitrary. It is difficult to see exactly what the County Council should have done by way of assessment or upon what assumptions any such assessment should have been based.
58. The legal test is whether the inquiry made by the Council was so inadequate that no rational planning authority could suppose that it had sufficient material available upon which to make its decision to grant planning permission: R (Hayes) v Wychavon District Council [2014] EWHC 1987 (Admin) at [31] , per Lang J. In the circumstances, I cannot conclude that it was irrational of the County Council not to undertake a formal assessment of the noise impact of the facility on the new development. Nor can I conclude that it was irrational for the County Council to conclude that the potential housing development would be not prejudiced by granting planning permission for the new waste facility when the plans for the new housing were so very broad brush.
59. The plan such as it was in Appendix 10 to Bury St Edmunds Vision 2031 showed a green barrier between the waste facility and the housing. There was to be some employment along with the housing and that might be located along the border with the facility as paragraph 111 of the officer's report suggested. The waste facility was assessed as having no impact on the existing housing 200m away. There is no master plan to suggest that the new housing will be any closer than that to the green barrier. Moreover, on the other side of the facility site is the heavily used – and no doubt noisy - A14 trunk road. In my judgment the planning committee's decision cannot be said to be irrational, nor can its planning judgment be impugned; see Newsmith Stainless v Secretary of State for the Environment Transport and Regions [2001] EWHC Admin 74, at [6]-[8], per Sullivan J.

Ground 3: Advice of the Environment Agency

60. It is common ground that the County Council was under a statutory duty to consult the Environment Agency before determining the planning application: see Town and Country Planning (Development Management Procedure) (England) Order 2010, SI 2010 No. 2184, Article 16 and Schedule 5 (r ). It is also common ground that implicit in that duty is a requirement on the County Council to take into account the consultation response: R v Secretary of State for Social Services ex p Association of Metropolitan Authorities [1986] 1 All ER 164. Ms Wigley submitted that in this case the County Council failed to take into account the Environment Agency's response of 23 August 2013, where it advised as to the impact of the new waste facility on the proposed residential development as regards noise, odour, dust and pests.
61. It is my view there was no breach of the County Council's duty regarding the Environmental Agency's response to the consultation. The advice in the 23 August response was general in nature: (1) take into account any proposed residential development, and (2) waste transfer stations near residential areas are likely to result in complaints about noise, odour, dust and vermin. The County Council did this. In passages in the officer's report referred to earlier in this judgement it is evident that issues of noise, odour, dust and vermin were taken into account. Insofar as the County Council did not assess each of these matters in relation to the potential housing development on the greenfield land, the problem was that, for the reasons already given, it did not know exactly where any new housing might be.

Ground 5: EIA screening^[1]

62. On the claimant's case the hazardous waste the new facility would accept was a particularly important factor when the screening request was made under the EIA Regulations. Yet the screening request was misleading as to the degree to which hazardous waste would be accepted at the new facility. In Ms Wigley's submission it is plain from Condition 18 and the reasons given for it that, at the time of the decision under challenge, it was anticipated that up to 5,000 tonnes of hazardous waste may be accepted at the site per annum. Mr Jones' evidence is that if that had been known, and the Environment Agency consultation response of 23 August had been known, these would have been given significant weight in his consideration of EIA screening.
63. In Ms Wigley's submission it was incumbent on the Council to refer the matter back to the Secretary of State and ask him to reconsider his screening direction once all the correct information relating to hazardous waste and the Environment Agency consultation response had came to light: see Evans v First Secretary of State [2003] EWCA Civ 1523, at [22] per Simon Brown LJ. Citing R (on the application of Mageean) v Secretary of State for Communities and Local Government [2011] EWCA Civ 863; [2012] Env LR3, at [35]-[36], she submitted that no reasonable planning authority could have reasonably concluded that the missing information would not have realistically made a difference to the Secretary of State's consideration of likely significant effects.
64. Ms Wigley further submitted that the error in the Secretary of State's screening direction led to the planning permission being issued unlawfully. She invoked R (on the application of Catt) v Brighton and Hove DC [2007] EWCH Civ 298; [2007] Env LR 32, where Pill LJ held that the opportunity to challenge a screening opinion does not affect the right to challenge a subsequent planning decision, relating to the same proposed development, notwithstanding the passage of time between the screening opinion and the planning permission: [49] Carnwath and Rimer LJJ agreed. Ms Wigley also referred to the judgment at first instance in Mageean, where the judge said that the principle applied to both a screening opinion and a screening direction: i.e., flaws in either will found a challenge to a later grant of planning permission: [2010] EWHC 265 (Admin).
65. I cannot accept these submissions. In my judgment they are based on a faulty premise. The environmental assessment report made clear that both the HWRC and the WTS elements would accept hazardous waste (paragraphs 2.7.7-2.7.8 quoted earlier). The screening request itself stated at paragraph 4.5.1 that the HWRC element of the facility would continue to accept hazardous waste, at the time averaging some 550 tonnes per year. Paragraph 4.5.2 said that it was not intended that the WTS part of the facility would accept hazardous waste, but that in reality it would. Moreover, the screening request stated at paragraphs 4.4.1-4.4.2 that the tonnage of waste accepted would increase with population growth. It was on this basis that the screening direction was issued, not on the basis of the 5000 tonnes figure later contained in Condition 18 to the planning permission. Mr Stinchcombe could not explain why the figure of 5,000 tonnes of hazardous waste appeared in original condition 18 to the planning permission, but the figure of 800 tonnes, which now appears in condition 18 as varied by the County Council on May 2014, is certainly consistent with the documentation (the existing 550 tonnes, with an additional "small" amount accepted at the WTS part, as recorded at paragraph 2.7.8 of the environment assessment report, both figures increased for population growth).
66. Thus I cannot see how the claimant can succeed in his argument that there was such a change in circumstances that it was irrational for the County Council not to consider that, at the time when the planning permission was granted, to give rise to a realistic prospect of the Secretary of State coming to a different screening conclusion as required by R (Mageean) v Secretary of State for Communities and Local Government. In fact there was no change of circumstances. The anticipated actual operation of the facility remained as it had always been. Condition 18 did not unlawfully expand that which was applied for. For some reason the original version of condition 18 allowed for a maximum of 5,000 tonnes of hazardous waste to be accepted by the new facility. It would have been far better if the County Council had been able to explain where that figure came from. But it did not constitute a relevant change of circumstances, since that figure never represented the actual characteristics of the project. And it is "the actual characteristics of a project" with which the Directive (and hence the EIA Regulations) is concerned: see Case C-435/97, World Wildlife Fund v Autonome Provinz Bozen [1999] ECR I-5613, [37].
67. In my judgment, therefore, it cannot be said that the Secretary of State's screening direction was unlawful on the basis that he did not know the true amount of hazardous waste that would be handled at the site. The information he had was accurate. As to the views of the Environment Agency, such as they were, the claimant would have to show that not to take steps to ascertain those views was irrational. I find Mr Jones's witness statement in this regard unsatisfactory since he did not take any steps to contact the Environment Agency, much less the Council. In fact the claimant does not assert that the Secretary of State acted irrationally in this respect.
68. In any event regulation 4(3) of the EIA Regulations provide as follows: "A direction of the Secretary of State shall determine for the purpose of these Regulations whether development is or is not EIA development." The comments in R (on the application of Catt) v Brighton and Hove DC [2007] EWCA Civ 298; [2007] Env LR 32 were made in a quite different context, where the council made the screening decision and there was no direction of the Secretary of State. The obiter remarks of the judge at first instance in R (Mageean) v Secretary of State for Communities and Local Government did not take in the import of regulation 4(3).
69. Accordingly I accept Mr Stinchcombe's submission that the screening direction of the Secretary of State conclusively determined that this waste facility was not an EIA development. The Council was bound by the Secretary of State's screening direction and it was therefore entitled to grant planning permission. There has never been any challenge to the Secretary of State's screening direction and any such challenge would now be too late. The failure to challenge the Secretary of State's screening direction means that this ground of challenge must fail. As Simon Brown LJ indicated in Evans v First Secretary of State [2003] EWCA Civ 1523, at [10], the Secretary of State's decision is decisive.
70. I also accept Mr Stinchcombe's submission that it would be contrary to the conduct of good administration and legal certainty for an individual such as the claimant to hold off from challenging a screening direction of the Secretary of State, thereby leaving a local planning authority in the position where it had no choice but to act in accordance with that direction, only to seek later to impugn the decision to grant planning permission on the basis that it was flawed. That analysis is supported by the thoughtful remarks of Lindblom J in Threadneedle Property Investments Ltd v Southwark London Borough Council [2012] EWHC 855; [2013] Env LR 1, [117]-[118].
71. At a late stage the claimant has raised an additional objection, that this alteration to an 800 tonne maximum limit cannot be a nonmaterial change within the meaning of Condition 18 of section 96A of the Town and Country Planning Act 1990. Since the purpose of the application was to ensure that the planning permission matched the anticipated actual operation of the facility this challenge goes nowhere. The facility as permitted was therefore not fundamentally different from that the subject of the Secretary of State's screening direction. Condition 18 has simply been corrected.

Ground 6: Risk of Legionella disease

72. The claimant's sixth ground of challenge is that the County Council unlawfully failed to consider whether the misting system to be used at the new waste facility to control odour and dust might cause outbreaks of Legionella disease. In what Ms Wigley eloquently described as a concise manner, the claimant raised this important public health issue in a single sentence in his written objection. The officer's report did not mention the concern. Admittedly the claimant did not refer to the point in his oral representations to the planning committee but Ms Wigley's point (which I accept) is that no criticism should be made of the claimant for this when he was limited to 3 minutes for his presentation. Ms Wigley submitted that even if Legionella disease falls to be dealt with under other legislation, it can still be a material concern in planning: R (on the application of Hayden) v Erewash BC [2013] EWHC 3527 (Admin).
73. Although troubled by this aspect of the claimant's challenge at the hearing, I have concluded that the Council has not disregarded a material consideration in the form of Legionella disease. First, the claimant's letter was made available to members of the planning committee in the ordinary way, and there is no reason to suppose that they would not have read it: R (Hunt) v North Somerset Council [2013] LGR 1, at [83]. There was no need for the officer's report to refer expressly to every point such as this one raised in the consultation: R (National Association of Health Stores) v Department of Health [2005] EWCA Civ 154, at [61] per Sedley LJ. Further, the sustainability report accompanying the planning application addressed the issue of the design of the misting system to control for Legionella. Furthermore, as I indicated earlier, the issue of Legionella has been taken into account in the planning phase of the new facility.

IV Conclusion

74. In the result I dismiss this application for judicial review.

Note 1   Ground 4 was withdrawn prior to the permission hearing.    [Back]