QUEEN'S BENCH DIVISION
PLANNING COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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CHRISTOPHER COLLINS |
Appellant |
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SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT HAMPSHIRE COUNTY COUNCIL |
First Respondent Second Respondent |
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Zoë Leventhal (instructed by Government Legal Department ) for the First Respondent
Hearing dates: 3 December 2015
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Crown Copyright ©
The Honourable Mr Justice Blake:
Introduction
"without planning permission, the change of use of land from woodland to (mixed use of woodland and) importation and disposal of waste."
"without planning permission, change of use of the land from woodland to create a vehicular access for waste disposal".
A. Cease all importation of waste to the land
B. Remove any waste that has been imported on to the land
C. Restore the land to its previous condition.
The Inspector's decision
12. The appellant disputes that the materials that have been brought onto the site are classified as waste, or that the site has been used for waste disposal. He maintains that the materials, which were purchased by the company operating the forestry operation on the site from another of the companies in which the appellant has an interest, were specifically intended to be used for the purpose of creating the access and ceased to be waste when they were brought onto the land. The information submitted by the appellant reports that the definition of waste given by the EA states that waste remains waste until it is fully recovered. This applies to waste used as aggregate or construction material in civil engineering operations, such as in this case.13. Full recovery can be achieved when such waste is incorporated into a road. The photographs submitted by the Council prior to the issue of the TSN show a pile of rubble on the site, containing large chucks of concrete. Further photographs show piles of earth brought onto the site prior to the issue of the first enforcement notice. Therefore, at the time the first enforcement notice was issued, the access and hard standing had not been constructed and, by the definition, full recovery had not occurred.
14. Although I agree that it has since been demonstrated that the material was intended for a specific purpose, that it was suitable for this purpose and that there was a demand for it on this site, I have had no written evidence to confirm the appellant's view that it was not contaminated in any way prior to being spread. Government guidance on when waste ceases to be defined as such notes that it will remain waste until contamination is removed. It is therefore not certain that the imported material met this criterion. Taking all the above into account, I conclude that the materials brought into the site remained waste at the time, although that situation may now have changed. The enforcement notice was therefore correct to specify a breach of planning control comprising the importation and disposal of waste.
15. Turning to the second notice, I accept the appellant's submission that the construction of the hard-standing and access were intended to facilitate the forestry operations on the site and not to enable further waste disposal to take place across it. Forestry operations were taking place at the time of the site visit and the appellant's agent confirmed that a license to fell trees on the site had been obtained. In these circumstances, the allegation that the vehicular access was constructed 'for waste disposal' is incorrect.
16. I consider that I am unable to correct this enforcement notice by removing this wording without injustice to the appellant. If the incorrect purpose had not been included, he maintains he could have made an appeal on ground (a) for the access for forestry purposes, but he had no reason to seek planning permission for the allegation as set out in the notice. Consequently, I conclude that the second enforcement notice is not able to be corrected, the allegation that an access for the purposes of waste disposal has been created is not correct and the appeal succeeds on the ground (b).
17. However, there is no prior approval or planning permission for the access as constructed, whether or not the material from which it is constructed remains waste.
…..
20. However, the enforcement notice for Appeal A did specify the correct breach at the time it was issued, as I have found that the material brought onto the site was not fully recovered and was technically still classified as waste. This material has since been incorporated into an unauthorised access way and might now no longer be regarded as waste, subject to the matter of possible contamination being resolved. If so, requirement B of the enforcement notice relating to the removal of waste would not require the removal of this material.
21. However, there is no planning permission in place for the original breach of planning control and it was not permitted development. Whilst the original breach might no longer be continuing, the enforcement notice was not incorrectly issued and the appeals on grounds (b) and (c) both fail.
22. This enforcement notice does not relate to the construction of the access which is nevertheless still unauthorised despite the quashing of the second enforcement notice. In order to regularise the situation and avoid possible further enforcement action the appellant would need to obtain retrospective planning permission for the development.
The Appeal
i) The Inspector failed to consider whether the breach of planning control had occurred by the appellant disposing of waste on his land.ii) If she considered the issue at all, she failed to apply her conclusions on the second notice as to what the appellant was doing and intended to achieve, to the issue in the first notice as to whether the appellant had disposed of the waster before the road was built.
iii) In any event any conclusion as to a breach of planning control by disposal of waste was irrational in the light of the words used in the notice and the unchallenged evidence as to what the appellant was intending to achieve and the local authority was intending to prevent.
iv) The Inspector failed to give any or any sufficient reasons for her conclusions on disposal of waste.
Conclusions: Grounds 1, 2, and 4
i) The appellant had imported waste on to the land and deposited it there.ii) Waste remains waste until it is recovered.
iii) The deposit was in existence at the time of the enforcement notice and so the waste had not been recovered into something else at this time.
iv) Depositing unrecovered waste on land was a form of disposal of it whatever the ultimate intention may have been.
i) It sufficiently explains to the appellant why it was considered that he was disposing of waste even if that is not what he intended to do or thought he had done.ii) The reasoning refers to guidance documents produced by both sides in the hearing. It is clear from one of those documents, the Environment Agency's Guidance of August 2012 on 'The legal definition of waste and its application', that the law on which guidance is being given is set out in the Directive. The concepts of waste, disposal and recovery are all set out in the Directive and reflected in turn the guidance that was intended as a commentary on the Directive for interested parties.
iii) Article 3 (19) of the Directive provides that:
"'disposal' means any operation which is not recovery even where the operation has as a secondary consequence the reclamation of substances or energy. Annex I sets out a non-exhaustive list of disposal operations".Annex 1 DI states that disposal operations include"deposit into or onto land (eg landfill, etc)".iv) Further s.55 (3) (b) Town and Country Planning Act 1990 provides that:
` 'for the avoidance of doubt…the deposit of ..waste materials on land involves a material change in its use, notwithstanding that the land is comprised in a site already used for that purpose if- .., (ii) the area or height of the deposit is extended'
v) The parties all had professional assistance at the inquiry and some familiarity with planning law and other relevant legal terms can be assumed from their respective submissions. The inspector was writing a decision for the parties and need not reproduce all the legal materials underlying the rival submissions in order to explain her decision.
Conclusions: Ground 3 unlawful conclusion on breach of planning control by disposing of waste
"..I protest in strong terms against looking at any document except the enforcement notice. This is a most important document, and the subject, who is being told he is doing something contrary to planning permission and that he must remedy it, is entitled to say that he must find out from within the four corners of the document exactly what he is required to do or abstain from doing. For this is the prelude to a possible penal procedure".
"Disposal operations are primarily aimed at getting rid of waste…If the ultimate aim of the operation is to get rid of the waste, there is a clear intent to discard".
the change of use of land from woodland to (mixed use of woodland and) importation and disposal of waste."
(my emphasis)
i) Section 172 (1) TCPA entitles the local authority to issue a notice where it appears to them (a) there has been a breach of planning control (b) that it is expedient to issue the notice, having regard to the provisions of the development plan and any other material considerations.ii) There is a substantial difference between tipping waste into a former quarry as landfill and depositing it temporarily on the land before using it all in a process which, when complete, will no longer be waste, subject to the issue of whether the waste included contaminated materials.
iii) If the local authority considered that it was expedient to take enforcement action against importing and depositing waste pending its re-use, it could and should have said so in its notice and identified this as the specific activity that breached planning control.
iv) S. 173 (1) (a) requires the notice to state what the breach of planning control is and 173(2) adds that it is sufficient if the person receiving the notice knows what those matters are. The requirements of the notice must be plain to the recipient, who cannot be assumed to have an expert knowledge of EU waste law, what he had done in breach of planning control.
v) In order to assess whether there is a breach of planning control, whether it is expedient to take enforcement action against it and what specific requirements are appropriate and proportionate to address the breach, the activity said to constitute a breach has to be specified with some degree of particularity. A reference in the notice to the broad, technically complex and imprecise words of the Directive will not be enough.
vi) The evidence before the Inspector indicated that the local authority's case on breach of planning control was disposal by tipping of the waste as a final activity and not depositing it temporarily with a view to recovering it.
vii) A notice alleging temporary deposit of waste as a form of disposal might have alerted the appellant to other responses to it in the notice of appeal: that is to say he could have raised a s.174(2)(a) ground that planning permission for the deposit ought to be granted for that purpose, or a (2)(f) ground that the enforcement requirements to address the breach contended for were excessive, or a (2)(g) ground that a longer period should be provided to enable him to complete the construction of the road and thus terminate any breach of planning control by removing the waste by converting it from a deposit of rubbish into hardcore on an access road.
viii) The appellant was not intending to dispose of rubble by tipping it and would not have sought planning permission for that purpose. His case was that he was not disposing of waste by tipping it at all and issues of proportionality of the remedial measures did not accordingly arise.
i) The reasoning in Miller-Mead supported the proposition that there was greater flexibility and less need for precision in the narrative preamble to an enforcement notice (here section three). What was important was that the occupier of the land should know precisely what he had to do to remedy the breach, and the language of section five of the notice was clear and did not use broad or technical language.ii) If there was any error by the Inspector in her consideration of disposal, there was no prejudice to the appellant in having the enforcement notice remain in place because there had been an admitted importation of waste in breach of planning control. If the waste was now fully recovered by inclusion into the access road, it was no longer waste and could be said to have been removed in accordance with limb 5 (b) of the notice.
iii) Here the Inspector was correct to point out that planning permission for an access road was needed as it was 'development' within the meaning of s.55(1) of the TCPA although not a change of use. It was open to the appellant to apply for planning permission and if he did so it was implausible that a rational local authority would ever seek to enforce the notice.
Application to re open proceedings.