Strand, London, WC2A 2LL
B e f o r e :
| UBB WASTE ESSEX LTD
|- and -
|ESSEX COUNTY COUNCIL
Andrew Sharland QC and Richard Moules (instructed by Essex County Council) for the Defendant
Hearing dates: 9th July 2019 -10th July 2019
Crown Copyright ©
MRS JUSTICE LIEVEN:
"the importation and treatment at Tovi Eco Park MBT Facility of up to 30,000 tonnes per annum of source-segregated green garden waste from Essex Household Waste Recycling Centres, as described in the application form dated 7 December 2018…"
The critical phrase in the certificate is "source segregated green garden waste", which is referred to elsewhere as SSGGW. The case only concerns SSGGW from Household Waste Recycling Centres ("HWRC") and not green garden waste which has been separated by householders and collected from the kerbside. In the interests of reducing the acronyms I will simply refer to the waste in issue as SSGGW.
The Planning Permission
"Enclosed facility for the Mechanical and Biological Treatment (MBT) of municipal solid waste and commercial and industrial waste, including waste water treatment infrastructure; biofilter and air filtration infrastructure; a visitor, education and office facility; parking area; surface water management system; hardstanding's; internal roads; new access and junction arrangements onto Courtauld Road; earthworks; landscaping, fencing and gates; weighbridge complex; lighting and ancillary development."
"2. The development hereby permitted shall be carried out in accordance with the details of the application dated 23 March 2012 and covering letter dated 23 March 2012, together with:
• Environmental Statement dated March 2012 and appendices 1.1-1.9, 5.2, 5.2, 6.1, 7.1, 9.1 and 9.2,
• Environmental Statement Non-Technical Summary dated March 2012,
• Environmental Statement Errata dated April 2012,
• letter from Alistair Hoyle dated 10 May 2012 and enclosed Environmental Statement Addendum to Flood Risk Statement dated May 2012 and drawing number 5093106/C/P/200,
• Planning Statement and appendices 1-8,
And in accordance with the contents of the Design and Access Statement dated March 2012.
and in accordance with any non-material amendment(s) as may be subsequently approved in writing by the Waste Planning Authority, except as varied by the following conditions: -
Reason: For the avoidance of doubt as to the nature of the development hereby permitted, to ensure development is carried out in accordance with the approved application details, to ensure that the development is carried out with the minimum harm to the 18 local environment and in accordance with East of England Plan Policies ENV7, WM1, WM2, WM3, WM8, SS1 and ENV1, Basildon District Local Plan Policies C15, E10 and E24 and Waste Local Plan Policies W3A, W3C, W4A, W4B, W4C, W7A, W8A, W10A, W10B, W10E and W10F".
Condition 3 of the Planning Permission states:
"3 No waste importation shall take place until a detailed scheme, for the restriction of the importation of waste arising from outside the administrative boundaries of Essex and Southend-on-Sea, has been as submitted to and approved in writing by the Waste Planning Authority. The scheme shall make clear how sources of waste coming to the site shall be monitored and managed in order to control the importation of such material from outside of the administrative boundaries of Essex and Southend-on-Sea…
Reason: In the interests of the environment by assisting Essex and Southend-on-Sea to become self-sufficient for managing its own waste ensuring that the waste is transported proximate to the site thereby minimising transportation distances, reducing pollution and minimising the impact upon the local environment and amenity and to comply with East of England Plan Policy WM3 and Waste Local Plan W8A."
Condition 21 of the Planning Permission states:
"21. No waste other than 416,955t tpa of those waste materials defined in the application details shall enter the site. Records of waste type and tonnage shall be kept by the operator and made available to the Waste Planning Authority upon written request.
Reason: waste material outside of the aforementioned would raise additional environmental concerns, which would need to be considered afresh and to comply with East of England Policy WM1, Basildon District Plan Policy C15 and Waste Local Plan Policies W3A, W3C, W8A and W10E" [emphasis added]
(a) Residual household waste - 78%
(b) Street sweepings - 2%
(c) Bulky waste - 0.5%
(d) Trade waste - 5.5%
(e) Household Waste Recycling Centre ("HWRC") Residual Waste - 14%
"proposal… will satisfy the residual municipal waste management needs of Essex County Council and Southend on Sea Borough Council … The Facility is capable of treating up to 416, 955 tonnes per annum (tpa) of residual waste, but with a smaller proportion of locally derived commercial and industrial (C&I) (third party) waste … The technology consists of: Pre-processing – sorting raw residual waste and extracting recyclables such as plastic and metals for beneficial use …" [emphasis added]
"The need for the proposed Facility has been considered in the context of a number of strategic policy documents and drivers. This has demonstrated a clear need for the development. The justification for this need can be summarised as follows: …
The Facility would help meet the capacity gap in residual waste treatment within Essex and Southend (see section 8 for the Assessment of Need)."
"The proposal provides a sustainable solution to the management of residual waste streams within the administrative areas of Essex and Southend of Sea … The proposal fully accords with all relevant policies of the Development Plan and a range of other material considerations …".
"The Facility will have the capacity to treat up to 416,955 tpa of waste. This will include Waste Collection Authority (WCA) residual waste, trade waste, bulky waste, street sweepings and waste from Household Waste Recycling Centres. The facility will also have the capacity to receive a smaller proportion of locally derived C & I [Commercial and Industrial] wastes.
In broad terms the pre-processing stage will allow for the recovery of high levels of recyclable material from the residual waste stream with the remaining (largely organic) fraction being passed through the bio stabilisation phase" [emphasis added]
The Defendant argues that the waste which is "defined" for the purpose of condition 2 is that set out in section 5.1 of the PS, which includes "waste from Household Waste Recycling Centres" not limited to "residual waste".
"Primarily the design of the Facility has focused on meeting the waste management requirements of Essex County Council Essex and Southend-on-Sea Borough Council as Waste Disposal Authorities. Through the design of the Facility UBB has ensured that the Authorities future predicted waste generation will be treated through a process which is flexible with regards to waste tonnage, seasonal fluctuations and potential future changes in waste composition. The facility has been designed in order to meet the Authorities requirements to manage approximately 377,000 tpa of Authority residual waste plus additional third-party C&I waste, providing a total maximum capacity up to 416, 955 tpa. [emphasis added]
The anticipated composition of the Authorities waste is as follows…
- Residual household waste 78.5%
- Street sweeping 1.8%
- Bulky waste 0.4%
- Trade waste 5.4%
- HWRC waste 13.9%"
"1.5.1 Waste management
The majority of waste streams which will be accepted at the Facility are managed by the 12 District and Borough Councils as Waste Collection Authorities (WCAs), Southend-On-Sea Borough Council as a Unitary Authority (Waste Collection and Disposal Authority) and Essex County Council as Waste Disposal Authority (WDA).
These 14 Authorities make up the Essex Waste Partnership (EWP). The Essex Waste Partnership was formed in order to ensure cost-efficient and sustainable waste management is delivered across the country. In order to manage the municipal waste arisings from the Partnership area, a network of waste facilities is required. The MBT Facility at Courtauld Road is proposed as the main treatment centre and would be supported by five satellite waste transfer stations, together with a separate facility to treat source segregated organic waste. A more detailed assessment of needs is provided within Chapter 4 of this ES." [emphasis added]
The Defendant says that this reference to a facility to treat source segregated organic waste is merely a future intention and does not affect the waste that was permitted to be treated at the facility.
"- Favour composting treatments such as Anaerobic Digestion for source segregated organic waste, and
Explore innovative disposal solutions, based on Mechanical Biological Treatment family of technologies, to assist in diverting biological municipal waste from landfill and recycle and recover more value from residual wastes".
"it should be noted that the existing planning permission relates to a wider site than the current application and contained processing capacity to deal with the residual waste as well as the food and green waste (biowaste). This Biowaste element of waste will not be managed via the proposed development and will require treatment in another facility".
Chapter 5 of the ES then goes on to consider the potential cumulative impacts of a bio-waste facility being developed on the adjoining land.
"The existing planning permission for the site was for a larger waste treatment facility that could process a variety of waste streams including food and garden waste – known as biowaste. The proposed development does not contain proposals to deal with this waste stream and so the council will need to find an alternative site for this treatment facility. There is a potential site on the vacant land to the west of this facility and given the two sites are closely located the assessments have considered this development as well. This particularly true of the traffic assessment." [emphasis added]
"(1) If any person wishes to ascertain whether—
(a) any proposed use of buildings or other land; or
(b) any operations proposed to be carried out in, on, over or under land,
would be lawful, he may make an application for the purpose to the local planning authority specifying the land and describing the use or operations in question.
(2) If, on an application under this section, the local planning authority are provided with information satisfying them that the use or operations described in the application would be lawful if instituted or begun at the time of the application, they shall issue a certificate to that effect; and in any other case they shall refuse the application.
(3) A certificate under this section shall—
(a) specify the land to which it relates;
(b) describe the use or operations in question (in the case of any use falling within one of the classes specified in an order under section 55(2)(f), identifying it by reference to that class);
(c) give the reasons for determining the use or operations to be lawful; and
(d) specify the date of the application for the certificate.
(4) The lawfulness of any use or operations for which a certificate is in force under this section shall be conclusively presumed unless there is a material change, before the use is instituted or the operations are begun, in any of the matters relevant to determining such lawfulness."
"The legal principles applicable to the use of other documents to construe a planning permission are not really in dispute in these proceedings. It is nonetheless necessary to summarise them:
(1) The general rule is that in construing a planning permission which is clear, unambiguous and valid on its face, regard may only be had to the planning permission itself, including the conditions (if any) on it and the express reasons for those conditions: see Slough Borough Council v. Secretary of State for the Environment (1995) J.P.L. 1128 , and Miller-Mead v. Minister of Housing and Local Government  2 Q.B. 196 .
(2) This rule excludes reference to the planning application as well as to other extrinsic evidence, unless the planning permission incorporates the application by reference. In that situation the application is treated as having become part of the permission. The reason for normally not having regard to the application is that the public should be able to rely on a document which is plain on its face without having to consider whether there is any discrepancy between the permission and the application: see Slough Borough Council v. Secretary of State (ante); Wilson v. West Sussex County Council  2 Q.B. 764; and Slough Estates Limited v. Slough Borough Council  A.C. 958 .
(3) For incorporation of the application in the permission to be achieved, more is required than a mere reference to the application on the face of the permission. While there is no magic formula, some words sufficient to inform a reasonable reader that the application forms part of the permission are needed, such as "… in accordance with the plans and application …" or "… on the terms of the application …," and in either case those words appearing in the operative part of the permission dealing with the development and the terms in which permission is granted. These words need to govern the description of the development permitted: see Wilson (ante); Slough Borough Council v. Secretary of State for the Environment (ante). *20
(4) If there is an ambiguity in the wording of the permission, it is permissible to look at extrinsic material, including the application, to resolve that ambiguity: see Staffordshire Moorlands District Council v. Cartwright (1992) J.P.L. 138 at 139; Slough Estates Limited v. Slough Borough Council (ante); Creighton Estates Limited v. London County Council, The Times, March 20, 1958.
(5) If a planning permission is challenged on the ground of absence of authority or mistake, it is permissible to look at extrinsic evidence to resolve that issue: see Slough Borough Council v. Secretary of State (ante); Co-operative Retail Services v. Taff-Ely Borough Council (1979) 39 P. & C.R. 223 affirmed (1981) 42 P. & C.R. 1."
"34. When the court is concerned with the interpretation of words in a condition in a public document such as a section 36 consent, it asks itself what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole. This is an objective exercise in which the court will have regard to the natural and ordinary meaning of the relevant words, the overall purpose of the consent, any other conditions which cast light on the purpose of the relevant words, and common sense. Whether the court may also look at other documents that are connected with the application for the consent or are referred to in the consent will depend on the circumstances of the case, in particular the wording of the document that it is interpreting. Other documents may be relevant if they are incorporated into the consent by reference (as in condition 7 set out in para 38 below) or there is an ambiguity in the consent, which can be resolved, for example, by considering the application for consent."
"Before leaving this subject I should add one comment on the judgment of Arden LJ in the Carter Commercial case  JPL 1048 (cited by Sullivan J in the passage quoted above). At the outset of her concurring judgment she said:
"27. I start from the position that this planning permission is not to be construed like a commercial document, but is to be given the meaning that a reasonable reader would give to it, having available to him only the permission, the variation, the application form and the Lewin Fryer report referred to in condition 4 in the planning permission itself …
"28. The reasonable reader for this purpose is to be contrasted with, for instance, the testator into whose armchair the court is enjoined to place itself in order to construe a will, or the position of parties to a commercial contract from whose standpoint the court will construe a commercial contract having regard to all the background information reasonably available to them. This is a public document, to which very different principles apply."
She cited the judgment of Keene J in R v Ashford Borough Council, Ex p Shepway District Council  PLCR 12 , as indicating the "very strict limitations on the extrinsic material that can be used in construing an application, including a permission …"
66. I do not question the decision of the court in that case, or the reasoning on which it was based. As will have become apparent, however, and in agreement also with Lord Hodge JSC, I do not think it is right to regard the process of interpreting a planning permission as differing materially from that appropriate to other legal documents. As has been seen, that was not how it was regarded by Lord Denning in the Fawcett case  AC 636 . Any such document of course must be interpreted in its particular legal and factual context. One aspect of that context is that a planning permission is a public document which may be relied on by parties unrelated to those originally involved. (Similar considerations may apply to other forms of legal document, for example leases which may need to be interpreted many years, or decades, after the original parties have disappeared or ceased to have any interest.) It must also be borne in mind that planning conditions may be used to support criminal proceedings. Those are good reasons for a relatively cautious approach, for example in the well established rules limiting the categories of documents which may be used in interpreting a planning permission (helpfully summarised in the judgment of Keene J in the Shepway case  PLCR 12 , 19–20). But such considerations arise from the legal framework within which planning permissions are granted. They do not require the adoption of a completely different approach to their interpretation"
"In summary, whatever the legal character of the document in question, the starting-point - and usually the end-point - is to find "the natural and ordinary meaning" of the words there used, viewed in their particular context (statutory or otherwise) and in the light of common sense."
a) "At present the SSGGW from the HWRCs are sent elsewhere for composting";
b) ".. given the information from both the planning application and the Environmental Statement it does seem that there was the intention that biowaste (kitchen and garden waste) would be treated separately, and as such the use of the application site for its treatment was never proposed or considered in relation to the planning application…."
c) "… it is recognised that the use of the site for green garden waste treatment has not been explicitly applied for or considered by the WPA."
d) "The WPA agrees that the treatment of green waste at the facility would remove it from its current recycling into use as compost and move it to use as Solid recovered Fuel (SRF) or Solid Output Material (SOM). This would be contrary to the waste policies considered at the time of the grant of permission…and to waste policy in general…."
|"1990 Act"||Town and Country Planning Act 1990|
|"Biowaste"||Types of food and green waste, including SSG waste|
|"C&I Waste"||Commercial and Industrial Waste|
||Certificate of Lawful Existing Use and Development (see s.191 of the 1990 Act)|
|"CLOPUD"||Certificate of lawfulness for a proposed use or development (see s.192 of the 1990 Act)|
|"EIA"||Environmental impact assessment carried out under, at the time of the application for the Planning Permission, the Town and Country Planning (Environmental Impact Assessment) Regulations 2011. .|
|"EIA Directive"||European Directive 2011/92/EU on Environmental Impact Assessment|
|"Essex JMWMS"||Essex Joint Municipal Waste Management Strategy 2008-2032|
|"EWP"||Essex Waste Partnership|
|"The Facility"||The MBT Facility at Courtauld Lane, Essex|
|"HWRC"||Household waste recycling centre|
|"MBT"||A residual waste treatment process that involves both mechanical and biological treatment processes|
|"MSW" (Residual Municipal Solid Waste)||means waste that is household or household like - it comprises household waste collected by local authorities as well as some commercial and industrial waste (e.g. from offices, schools and shops) that may be collected by the local authority or a commercial company.|
|"NTS"||The Non Technical Summary of the ES|
|"QSRF"||'Quick Solid Recovered Fuel', which consists of waste processed through the QSRF Line|
|"QSRF Line"||a number of modifications to the Facility implemented by UBB in 2015 whereby certain waste is shredded, passed under a magnet to remove ferrous metals, diverted away from the biohalls and the Refining Hall, and then transported to the Treatment Output Loading Area.|
|"PAF"||Planning Application Form|
|"Planning Permission"||The planning permission dated 6 December 2012 allocated reference number ESS/22/12/BAS granted by Essex County Council for the Facility|
|"Residual Waste"||Waste that is not sent for reuse, recycling or composting and therefore excludes SSG Waste|
|"Residual Waste Contract"||The contract dated 31 March 2012 between UBB and the Defendant in its capacity as WDA for the County of Essex|
|"Ricardo"||Ricardo Energy & Environment|
|"SOM"||Stabilised Output Material a bulk output that is suitable for landfilling produced by the MBT plant.|
|"SRF"||Solid Recovery Fuel – a fuel that is capable of incineration produced by the MBT plant.|
|Source segregated green garden waste|
|"SSO Waste"||Source segregated organic waste. SSG Waste is a type of SSO Waste.|
|"TPA"||Tonnes per annum|
|Waste Framework Directive||EU Directive 2008/98/EC|
|Waste Hierarchy||A legislative concept of the EU of the same name that was explicitly brought into legislation in the Waste Framework Directive|
|"WCA"||Waste collection authority|
|"WCA waste"||means kerbside waste, trade waste and street sweepings.|
|"WDA"||Waste disposal authority|
|"WLP"||Essex Waste Local Plan|
|"WPA"||Waste planning authority|