Blewett v Derbyshire Waste Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Auld,Lord Justice Buxton,Lord Justice Laws |
| Judgment Date | 11 November 2004 |
| Neutral Citation | [2004] EWCA Civ 1508 |
| Docket Number | Case No: C3/2003/2505(A) CO/1902/2002 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 November 2004 |
[2004] EWCA Civ 1508
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
MR JUSTICE SULLIVAN
Royal Courts of Justice
Strand, London, WC2A 2LL
The Right Honourable Lord Justice Auld
The Right Honourable Lord Justice Buxton and
The Right Honourable Lord Justice Laws
Case No: C3/2003/2505(A)
C3/2003/2505
CO/1902/2002
Mr Christopher Katkowski QC & Mr John Barrett (instructed by Walker Morris) for the Appellant
Mr David Wolfe (instructed by Public Interest Lawyers) for the Respondent
Mr James Maurici (instructed by the Department for Environment, Food & Rural Affairs) for the Intervener
Lord Justice Auld
This is an appeal of Derbyshire Waste Limited ("Derbyshire Waste") from the decision of Sullivan J on 7 th November 2003, on a claim by Mr John Blewett for judicial review, quashing on one of three grounds a planning permission given by the Derbyshire County Council ("the Council") on 23 rd December 2002 to Derbyshire Waste to use land at the former Glapwell Colliery, Sutton Scarsdale, near Bolsover in North- East Derbyshire, for "land reclamation by waste disposal with restoration to agricultural, woodland, grassland and nature conservation".
The Council has taken no part in the appeal. However, the Court has granted the Secretary of State permission to intervene in the matter, which he does by counsel. The Court has also permitted Friends of the Earth to file written evidence, which they have done in the form of a helpful witness statement of Dr Anna Watson who is employed by them as a waste and resources campaigner.
The main issue in the appeal is whether a waste planning authority, in determining a planning application for waste disposal by landfill, is obliged by provisions of two EC Directives, Council Directive 75/442/EC on Waste, which, in its amended form, 1 is known as the Waste Framework Directive, and the Landfill Directive 1991/31/EC concerning the treatment of waste, to satisfy itself before granting permission that the proposal complies with the decision-making policies and methodology for the choice of the method of waste management, the "Best Practicable Environmental Option" ("BPEO") ], incorporated in a national plan, Waste Strategy 2000, required by the former of the Directives. BPEO, put shortly, establishes for waste planning decision makers a hierarchy of desirability of methods of confronting waste, starting at the top with reduction of its generation and use of resources, and ending at the bottom with disposal, for example by landfill. All other things being equal, the BPEO methodology is that landfill should be considered last because it is the least desirable environmental option.
Sullivan J held that the Council, in making its planning decision, was obliged to comply with the BPEO methodology, but that even if it was not so obliged, its consideration of BPEO in this case was so inadequate as to render its grant of planning permission unlawful. Derbyshire Waste and the Secretary of State maintain that he was wrong to hold that the Council had such an obligation, and Derbyshire Waste alone argues that he wrongly held on the facts that the Council's consideration of the BPEO was so inadequate as to render its decision unlawful. Mr Blewettt and Friends of the Earth maintain that he was right to hold that the Council had such an obligation, the latter describing the BPEO process "as a mandatory process in waste planning decisions". And Mr Blewett supports his decision that, in any event, the Council had given inadequate consideration to BPEO. The Secretary of State took no stand on that alternative issue of fact.
The facts
I adopt with gratitude Sullivan J's summary of the facts in his judgment.
In the mid-1970s Glapwell Colliery closed, leaving two spoil tips. In the early 1980s 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. Voids had been created within the re-profiled spoil tips as part of the reclamation works to facilitate landfills. One of them, Smith's Void, or as it came to be known, Glapwell 3, was to be re-profiled as part of these operations, but the contractor employed to carry out the coal recovery scheme went into receivership, leaving the scheme incomplete.
Glapwell 1 was the first of the voids to be filled. Over a five year period between 1983 and 1988 it received and 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 began 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 pursuant to the 1984 permission; but that planning permission expired in December 2003 (operations were limited to a period of 15 years from the start of tipping) . The 1984 planning permission had envisaged that Glapwell 3 would have a capacity of about 1 million cubic metres. The present proposal for it 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 etc. taking six years.
The application site covers about nine hectares and is located within one kilometre of the villages of Glapwell, Palterton, Bramley Vale and Doe Lea. Mr Blewett lives in Bramley Vale. The nearest boundary of Glapwell 3 is about 800 metres from his home and those of the existing tipped voids, Glapwell 1 and 2, about 200 metres away.
Mr Blewett is registered as a disabled person, suffering from chronic bronchitis, asthma and angina. He contended that the dust and smells generated by the land-filling operations at Glapwell 1 and 2 had exacerbated those conditions. He also complained of other incidents of the land-filling operations, including the attraction to the area of rats and seagulls, the former killing some of his pet pigeons and the latter causing pollution by their droppings. He opposed Derbyshire Waste's application for the grant of planning permission for Glapwell 3, and made representations to the Council in his own right and as a member of the "Stop the Landfill Group".
The Council is both the waste planning authority and the waste disposal authority for its county area. In its latter capacity, and pursuant to arrangements made under section 30 of the Environmental Protection Act 1990, it had formed Derbyshire Waste to dispose of the County's waste. Derbyshire Waste is owned, as to 20%, by the Council, and disposes of the County's waste under a long-term contract with it.
The development proposed by Derbyshire Waste for Glapwell 3, the subject of its planning application, was a "Schedule 2" development as defined in the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 ("the 1999 Regulations") . Those Regulations required an environmental statement if the proposed development was likely to have significant effects on the environment by virtue of factors such as its nature, size or location. Derbyshire Waste duly included such a statement with its application, which it made on 8 th February 2001, justifying the proposal on two main grounds, namely to reclaim a despoiled site and to facilitate the disposal of wastes arising in the area.
Over a year later, on 11 th March 2002, the Council's Regulatory Planning and Control Committee ("the Council's Committee") considered the application, assisted by a 55 page report from the Council's Director of Environmental Services as to its merits ("the Report") . At that time, although the United Kingdom had complied with part of its obligation under Article 7 of the Waste Framework Directive, by producing a national waste plan in the form of Waste Strategy 2000, it was in breach of its Treaty obligations in the case of Derbyshire Council, which, as the local waste planning authority, had not produced its own local waste management plan (see paragraph 32 below) . In the Report the Director recommended the grant of planning permission, but subject to no less than 53 conditions. In so recommending, the Director summarised his reasons in the following way: 1) that the proposal would be unlikely to cause significant harm to the amenities of nearby residents; 2) that there would be no shortage of landfill space in the County considered as a whole before 2010 if reduced waste production—about which there was some uncertainty—and landfill targets were achieved; 3) that the proposal was not so large as to create a substantial excess capacity; 4) that it would, in any event, assist in meeting disposal needs in the south- east of the County where an imminent shortfall of landfill space was expected; and 5) that the proposals were probably the only satisfactory way of achieving a sympathetic and worthwhile restoration of the site. He concluded that the proposal accorded with the relevant development plan policies, national policy and regional policy and guidance, specifically mentioning as part of national policy, Waste Strategy 2000 and its incorporation of BPEO. And he reported that he had taken into account other material considerations.
However, on the morning of the very day on which the Council's Committee was considering the matter, the...
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