Bolton Metropolitan Borough Council v Secretary of State for The Environment and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE GLIDEWELL,LORD JUSTICE McCOWAN,SIR ROUALEYN CUMMING-BRUCE |
| Judgment Date | 27 July 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J0727-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 90/0686 |
| Date | 27 July 1990 |
[1990] EWCA Civ J0727-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
(HON. MR JUSTICE HODGSON)
Royal Courts of Justice
Lord Justice Glidewell
Lord Justice McCowan
Sir Roualeyn Cumming-Bruce
90/0686
MR JEREMY SULLIVAN Q.C. and MR PETER VILLAGE, instructed by Messrs Gouldens, appeared for the Appellant (Second Respondent).
MR DAVID KEANE Q.C. and MR CHARLES CROSS, instructed by Messrs Sharpe Pritchard, London agents for J.W.G. McGregor Esq., Borough Solicitor, Metropolitan Borough of Bolton, appeared for the Respondent (Applicant).
Under the Control of Pollution Act 1974 district councils are responsible for the collection of refuse. In Greater Manchester there is a statutory authority, the Greater Manchester Waste Disposal Authority, which is responsible for the disposal of waste collected in all but one of the districts in the former Greater Manchester County. Bolton Metropolitan Borough Council (which I shall call Bolton), one of the district councils in Greater Manchester and the respondent to this appeal, is the owner of some 103.9 acres of land at Red Moss, Horwich, in its district which adjoins an existing refuse tip.
On 9th March 1987 the Authority made a compulsory purchase order on land at Red Moss, Horwich, comprising altogether some 195 acres including all Bolton's 103.9 acres. Bolton objected to the confirmation of the order, as did other people and statutory authorities. An Inspector appointed by the Secretary of State for the Environment held an inquiry on 12th January 1988 and reported to the Secretary of State by letter. Over a year later, on 28th March 1989, the Secretary of State sent a letter indicating that he confirmed the compulsory purchase order with modifications. Bolton applied under section 23 of the Acquisition of Land Act 1981 to the High Court to quash the Secretary of State's decision. On 26th March 1990 Mr Justice Hodgson gave judgment quashing the compulsory purchase order. The Authority now appeals against his decision. Bolton seeks to support the judge's decision, having given a respondent's notice indicating one further ground. The Secretary of State does not appear.
Bolton's grounds for quashing the Secretary of State's decision, which the judge accepted, can be summarised as follows. The need for more land for the disposal of refuse in Greater Manchester is not and was not at any material time disputed. There was, however, strong local opposition to the Authority's proposal to acquire the Red Moss site because of the effect which local residents feared tipping refuse on the land would have on the environment of the area. Despite this, shortly before the inquiry in January 1988 Bolton reached agreement with the Authority that it would, in return for the Authority's undertakings, withdraw its objection to the confirmation of the compulsory purchase order.
That agreement, which it would not be proper to dignify with the term of a contract, was embodied in a letter from the Authority to Bolton dated 11th January 1988, which read as follows:
"Red Moss—Public Inquiry.
I refer to our 'without prejudice' meetings, letters and discussions regarding the GMWDA need to acquire the Red Moss site and your Council's desire to negotiate a licence subject to satisfactory terms being agreed.
I am authorised to give this undertaking on behalf of the GMWDA as one responsible public authority to another (subject to your Council not pursuing a substantive objection at the forthcoming Public Inquiry as to the GMWDA need to acquire the Red Moss site for waste disposal purposes or the economic justification for such acquisition) that the Authority in respect of all the land agreed owned by the Council at Red Moss will accept
(a) licence of not less than 16 1/2 years giving 15 years of active tipping over the total area to be acquired by the GMWDA at Red Moss;
(b) licence will contain detailed provisions to cover the substantial matters already agreed as follows (precise wording and effect to be agreed):"
and then there follow a number of sub-paragraphs containing detailed provisions relating to the reinstatement and the waste reclamation plant and an annual payment to the Council, based upon the tonnage tipped, and sub-paragraph (viii) reads:
"At expiry of the licence and after reclamation of the lands all the lands owned by GMWDA will be conveyed to the Council and current negotiations have regard to this provision.
If it is not possible to agree further matters outstanding between the parties in respect of the contemplated licence the Authority would seek to implement the Compulsory Purchase Order subject to confirmation by the Secretary of State. Matters of compensation would then be settled by the Lands Tribunal, failing agreement.
I would be obliged if you would confirm your Council's agreement to the above arrangements."
The bundle does not include a letter indicating the Council's agreement, but it is common ground that Bolton did agree. The outstanding matter was effectively the not unimportant question of price per tonne, or thousand tonnes, or whatever it was to be, for the material to be tipped.
It is perhaps not entirely clear from that letter but it is the fact, as was explained to us, that the agreement between these two authorities was that if Bolton withdrew its opposition to the confirmation of the compulsory purchase order and if it was confirmed, then, despite having thus gained the power to acquire Bolton's land, the Waste Disposal Authority would not acquire an interest in Bolton's land, but would take the licence from Bolton referred to in the document and then, at the end of the sixteen-and-a-half year term, would convey to Bolton the remainder of the land which it had acquired from other persons and authorities under the compulsory purchase order so that Bolton would then become the landowner of the reclaimed land.
The whole of the 195 acres or so was already the subject of a planning permission for tipping. It was a planning permission granted by the former Greater Manchester Council to itself under the notional procedure for the granting of planning permissions in that respect and it was subject to a number of detailed conditions, including the phasing of the tipping and works of restoration. Bolton's case before Mr Justice Hodgson was that under existing legislation the Authority had the power, which it intended to use, to direct that refuse from the various metropolitan districts should all be disposed of at the Red Moss site. It would follow then that large amounts of refuse would be tipped every year and the site would be filled, it was anticipated, in not more than 15 years. The ability to fill and reclaim the site within this period outweighed, in Bolton's view, the disadvantages of receiving the large amounts of refuse in the meantime. For this reason Bolton agreed to withdraw its objection. The agreement hinged on the Authority's power to direct refuse to the site. Mr Justice Hodgson in his judgment put that in this way at page 5 of the transcript, quoting an affidavit sworn by Mr McGregor, the solicitor to Bolton:
"This directing ability of the Authority goes to the heart of the case for the acquisition of the Red Moss site from the Applicant as the landfill solution to the waste disposal problems of the Greater Manchester conurbation."
The Inspector who held the inquiry reported to the Secretary of State for the Environment by a letter written in February 1988. The reason for Bolton's withdrawal of its objection was, it seems, not made clear to him. He was not given a copy of the letter from the Authority of January 1988 and it seems that he was not told that Bolton had weighed the advantages and disadvantages and were particularly concerned with the rate at which the site would be refilled. And so all the Inspector recorded in paragraph 2 of his decision letter was:
"During the first day of the inquiry all of the statutory objections were withdrawn unreservedly or subject to agreed modifications to the compulsory purchase order area as follows:
(e) Bolton M.B.C: Objection withdrawn subject to reservations regarding environmental protection measures;"
which of course did not tell the Secretary of State anything about the issue to which I have been referring.
In January 1989 however, before the Secretary of State issued his decision letter and thus while he was considering whether or not to confirm the compulsory purchase order, his Department issued a consultative document in the form of a Government Green Paper entitled "The Role and Functions of Waste Disposal Authorities". This proposed new legislation which would alter the nature of waste disposal authorities. What was proposed was the replacement of the existing waste disposal authorities with local authority waste disposal companies, to be jointly owned by the various contributing district councils. The document contains this passage at paragraph 39
"When the local authority waste disposal companies are formed, English Collection Authorities (Districts) will be freed from their duty under Section 14(1) of the Control of Pollution Act to deliver waste to the waste disposal authority. Instead all Collection Authorities will be required to seek competitive tenders for the disposal of collected waste. This will transfer the duty to arrange for disposal under Section 14(4) of the Control of Pollution Act from Waste Disposal to Waste Collection Authorities...
To continue reading
Request your trial
-
Wiltshire Council v Secretary of State for Communities and Local Government and Others Secretary of State for Communities and Local Government and Another
...is a matter of law. The approach to the issue of materiality was summarised by Glidewell LJ in Bolton Metropolitan Borough Council v Secretary of State for the Environment [1990] 61 P&CR 343 at [352/3]: "1. The expressions used in the authorities that the decision maker has failed to take i......
-
William Davis Ltd and Another v Secretary of State for Communities and Local Governments and Another
...would reach a different conclusion if he did take that consideration into account: Bolton MBC v Secretary of State for the Environment (1990) 61 P & CR 343, per Glidewell LJ at 9 The exercise of planning judgment and the weighing of the various issues are entirely matters for that decision-......
-
Paul Bova+carol Christie V. The Highland Council+bdw East Scotland Limited
...if he did take that consideration into account - Bolton Metropolitan Borough Council v Secretary of State for the Environment [1991] 61 P. & C.R. 343. (iii) The correct interpretation of planning policy is an issue of law, reading the words used objectively in their proper context - Tesco S......
-
East Lothian Council For Judicial Review Of A Purported Decision Of The District Valuer Dated 13th April 1999. V.
...me to Bolton Metropolitan Borough Council v Secretary of State for the Environment and Greater Manchester Waste Disposal Authority (1990) 61 P. & C.R. 343 and in particular to a passage from the Judgment of Glidewell L.J. at page 352 : " I venture to suggest that from the authorities genera......