Blewett v Derbyshire Waste Ltd

JurisdictionEngland & Wales
JudgeMR JUSTICE SULLIVAN
Judgment Date07 November 2003
Neutral Citation[2003] EWHC 2775 (Admin)
Docket NumberCO/1902/2002
CourtQueen's Bench Division (Administrative Court)
Date07 November 2003
The Queen On The Application Of Blewett
(Claimant)
and
Derbyshire County Council
(Defendant)

[2003] EWHC 2775 (Admin)

Before:

MR JUSTICE SULLIVAN

CO/1902/2002

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2

MR D WOLFE (MR M PURCHASE for judgment) (instructed by Public Law Project) appeared on behalf of the CLAIMANT

MR A EVANS (instructed by Derbyshire County Council) appeared on behalf of the DEFENDANT

MR J BARRETT appeared on behalf of Derbyshire Waste Limited as INTERESTED PARTY

Friday, 7th November 2003

MR JUSTICE SULLIVAN
1

Introduction

2

In this application for judicial review the claimant seeks a quashing order in respect of a grant of planning permission dated 23rd December 2002 by the defendant to the interested party for "land reclamation by waste disposal with restoration to agricultural, woodland, grassland and nature conservation uses at Smith's void, Former Glapwell Colliery, Palterton Lane, Sutton Scarsdale".

Factual background

3

Glapwell Colliery closed in the mid-1970s leaving two spoil tips. Planning permission was granted for a reclamation scheme which involved tip washing, opencast mining of shallow seams under the spoil tips and the replacement of the opencast mine spoil and washed deep mine spoil into a landscaped profile. Smith's void was to be reprofiled as part of these operations but the contractor employed to carry out the coal recovery scheme went into receivership, leaving the scheme incomplete. Voids had been created within the reprofiled spoil tips as part of the reclamation works to facilitate landfills.

4

Glapwell 1 was the first of the voids to be filled. Over a five year period between 1983 and 1988 it accommodated some 750,000 cubic metres of waste. Planning permission was granted in 1984 for the filling of two further voids, Glapwell 2 and 3. Waste disposal in Glapwell 2 commenced in 1988, and finished in November 2002 after planning permission had been granted in 1995 for additional tipping. No tipping took place in Glapwell 3 (Smith's void) pursuant to the 1984 permission, but that planning permission remains valid until December 2003 (operations were limited to a period of 15 years from the start of tipping). The 1984 planning permission envisaged that Glapwell 3 would have a capacity of about 1 million cubic metres. The present proposal involves tipping around 850,000 cubic metres of domestic, industrial, commercial and inert waste over a period of four years, with the overall operational programme, including restoration to agriculture et cetera, taking six years.

5

The application site covers about nine hectares and is located within one kilometre of the villages of Glapwell, Palterton, Bramley Vale and Doe Lea. The claimant lives in Bramley Vale. In his witness statement he states that the nearest site boundary of Glapwell 3 is about 800 metres from his home, which is about 200 metres from the nearest site boundary of the existing tipped voids, Glapwell 1 and 2.

6

The claimant is registered disabled and suffers from chronic bronchitis and also from asthma and angina. He contends that these conditions have been exacerbated by dust and smells from the landfilling operations on Glapwell 1 and 2. He also complains of noise from the landfilling operations, that some of his pet pigeons have been killed by rats living in the landfills, and that he is plagued by the noise and droppings of the many seagulls who are attracted to the landfills. The claimant has actively opposed the grant of planning permission for Glapwell 3. He made representations to the defendant both personally and in his capacity as a member of the "Stop the Landfill Group".

7

The defendant County Council is both the waste planning authority, and thus responsible for granting planning permission for landfilling operations, and the waste disposal authority for its area. Derbyshire Waste Limited (the interested party) was set up by the County Council, pursuant to arrangements made under section 30 of the Environment Protection Act 1990, to dispose of Derbyshire's waste. The company remains 20 per cent owned by the County Council and disposes of the County's waste under a long term contract with the County Council.

8

The development proposed in the application for planning permission was a "Schedule 2" development as defined by the Town and Country Planning (Environmental Impact Assessment) (England and wales) Regulations 1999 ("the Regulations"). An environmental statement was required if the development was likely to have significant effects on the environment by virtue of factors such as its nature, size or location. The application was accompanied by an environmental statement which was submitted to the County Council on 8th February 2001.

9

The defendant's Regulatory Planning and Control Committee first considered the application on 11th March 2002. The defendant's Director of Environmental Services advised members as to the merits of the application in a 55-page report ("the Report"). He recommended that planning permission should be granted, subject to no less than 53 conditions.

10

On the morning of the meeting the Secretary of State issued an Article 14 direction preventing the defendant from determining the application. Members resolved that had they been in a position to determine the application they would have granted planning permission, as recommended in the Report, subject to a minor amendment to one of the recommended conditions.

11

Application for permission to apply for judicial review of the Committee's resolution was lodged on 22nd April on a precautionary basis, since at that time it was unclear whether the three month period prescribed by CPR Part 54.5(1)(b) ran from the date of the resolution to grant planning permission or from the date of the permission itself. I adjourned consideration of the application pending the outcome of the Secretary of State's Article 14 direction. In the event, the Secretary of State decided not to call in the application, but the judicial review challenge had by then been overtaken by the decision of the House of Lords in R (Burkett) v Hammersmith & Fulham London Borough Council [2002] 1 WLR 1593. Although the challenge to the resolution to grant planning permission was premature in the light of that decision, the application for permission to apply for judicial review was adjourned to enable the claimant to challenge the grant of planning permission in due course, if so advised. On 4th November 2002 the Committee reconsidered the application for planning permission. In addition to the Report, members were provided with a Joint Report of the County Secretary and Director of Environmental Services. The Joint Report responded to the contentions which were being advanced in the judicial review proceedings. The officers recommended that planning permission should be granted. Members resolved to grant planning permission and permission was granted on 23rd December 2002.

12

Having considered the amended claim form, Collins J granted permission to apply for judicial review on 29th April 2003.

Submissions

13

On behalf of the claimant, Dr Wolfe submitted that the decision to grant planning permission was unlawful on three grounds:

(1) The environmental statement did not include an assessment of the potential impact of the use of Glapwell 3 for landfill on groundwater and on human health and instead unlawfully left those matters to be assessed after planning permission had been granted. So far as groundwater is concerned, the defendant had impermissibly approached the issue by assuming that contemplated "complex" mitigation measures would be successful ("Environmental Statement").

(2) The defendant failed to give effect to its obligations under Schedule 4 to the Waste Management Licensing Regulations 1994 ("the 1994 Regulations") by failing to keep the objectives of avoiding, or at least minimising, nuisance from noise and smell, in mind ("Relevant Objectives").

(3) The defendant failed to comply with its obligations under the Government's Waste Strategy 2000 to carry out an assessment in order to determine whether the proposed landfill was the Best Practicable Environmental Option (BPEO) for the waste stream(s) in question ("BPEO").

14

In his submissions before me Dr Wolfe placed ground (3) in the forefront of the claimant's case.

Analysis and conclusions

15

I find it convenient to begin with ground (2), I will then consider ground (1) and finally ground (3).

Ground (2) (Relevant Objectives)

16

Schedule 4 to the 1994 Regulations implements certain provisions of Council Directive 75/442/EEC ("the Waste Framework Directive"). Article 4 of the Directive provides:

"Member States shall take the necessary measures to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment and in particular -

without causing a nuisance through noise or odours…"

Paragraph 2(1) of Schedule 4 states that:

"… the competent authority shall discharge their specified functions insofar as they relate to the recovery or disposal of waste with the relevant objectives."

The wording of paragraph 2(1) is, to say the least, inelegant. It appears that a word or words may have been omitted in the process of transposing the requirements of the Directive.

17

In any event, the defendant is a competent authority and when it granted planning permission it was discharging a specific function: see paragraphs 1 and 3 and Table 5 in Schedule 4.

18

Paragraph 4 in Schedule 4 sets out the relevant objectives in relation to the disposal or recovery...

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