John and Sandra Hockley v Essex County Council Uttlesford District Council (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lindblom |
| Judgment Date | 20 December 2013 |
| Neutral Citation | [2013] EWHC 4051 (Admin) |
| Docket Number | Case No: CO/10163/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 December 2013 |
and
[2013] EWHC 4051 (Admin)
Mr Justice Lindblom
Case No: CO/10163/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Paul Stookes (instructed by Richard Buxton Environmental & Public Law Solicitors) for the Claimants
Mr Paul Shadarevian and Ms Clare Parry (instructed by Essex Legal Services) for the Defendant
Introduction
This claim for judicial review challenges the planning permission granted by the defendant, Essex County Council ("the County Council"), in June 2012, for a waste transfer station on a site in Great Dunmow. The application had been made by the County Council itself, as waste disposal authority. The claimants, John and Sandra Hockley, live near the site. They objected to the proposal. They say it ought to have undergone environmental impact assessment ("EIA"). They also contend that when the County Council determined the application it misapplied relevant policy in the development plan. The interested party, Uttlesford District Council ("the District Council"), which is the waste collection authority, has taken no part in the proceedings.
Permission to apply for judicial review was granted by Miss Belinda Bucknall Q.C., sitting as a deputy High Court judge, on 28 January 2013. In granting permission she said that in her view the claim could not be dismissed as unarguable. She ordered that it be joined with a previous one (CO/6123/2010), in which Mr and Mrs Hockley had challenged the planning permission granted by the County Council in March 2010 for the development of a resource management centre on land including the site of the development to which these proceedings relate. In that case, however, the County Council submitted to judgment in February 2013 and the planning permission for the resource management centre was quashed.
The issues in the claim
Mr and Mrs Hockley now pursue only two of the original grounds in their claim, grounds 1 and 5. These raise two main issues:
(1) whether the County Council erred in law in its approach to screening the development under the regime for environmental impact assessment ("EIA") (ground 1); and
(2) whether the decision to grant planning permission as a departure from Policy GD8 of the Uttlesford Local Plan was unlawful (ground 5).
In the skeleton argument of Mr Paul Stookes, who appeared for Mr and Mrs Hockley, and in the witness statement of their solicitor, Mr Richard Buxton, dated 21 October 2013, the contentions made in support of ground 1 of the claim were enlarged to include further submissions about cumulative effects. Mr Paul Shadarevian, who appeared for the County Council, pointed out that permission to apply for judicial review had not been granted for the claim in this expanded form, and that no application to amend had been made. He was right. However, he said he was able to respond to the new points raised and did not in the end seek to dissuade me from dealing with them. I shall do so.
After the hearing the parties made further submissions in writing in the light of the judgment of Lang J. in Mackman v Secretary of State for Communities and Local Government [2013] EWHC 3396 (Admin), which was handed down on 7 November 2013. I have been told that an application for permission to appeal to the Court of Appeal has been made in that case.
Background
The land on which the development was proposed is at Chelmsford Road to the south of the town. It is a site of 0.84 hectares. To its south is the A120 trunk road. To the east there is an ambulance station, and on Chelmsford Road Mr and Mr Hockley's home, Brook Cottage, and a pair of semi-detached houses called Hoblongs Cottages. To the north, separated from the site by a brook, are a Travelodge hotel and the Hoblongs Industrial Estate. The site was once farmland, but when the A120 was being constructed it was used, together with land to its west, as a contractor's compound. The land further to the west is still farmland.
With adjoining land the site has a history of proposals for waste facilities, which goes back to May 2000. It is part of the area allocated in the Uttlesford Local Plan 2005 for the development of a "civic amenity site and depot". The relevant policy is Policy GD8, which states:
"A 1.83 hectare site to the south of the Hoblongs industrial estate is proposed for a civic amenity site and depot. Proposals should include landscaping adjacent to the neighbouring properties and the A120 bypass. Any proposal must be subject to a Traffic Impact Assessment."
On 2 March 2010 the County Council granted planning permission for the development described in the decision notice as:
"Change of use of land to the rear of the Ambulance Station, off Chelmsford Road, Great Dunmow, to a Resource Management Centre comprising a recycling centre for household waste, to include the siting of storage containers and recycling facilities, a waste transfer/bulking station for mixed and source separated municipal and trade waste, [including] refuse collection vehicle parking provision …".
As I have said, that planning permission was challenged in a claim for judicial review. One of the grounds in that claim was that the County Council had failed to identify the proposal as a departure application under the relevant statutory provisions. This was the ground on which the County Council eventually submitted to judgment on 18 February 2013.
In September 2010 the County Council abandoned the proposal for the recycling centre for household waste, which had been one element of the proposals approved in March 2010. It now prepared a different scheme, which is the development with which these proceedings are concerned. The development now proposed does not include a recycling centre, or parking for refuse collection vehicles.
When the County Council's Development and Regulation Committee met on 22 June 2012 to consider the application, the Head of Environmental Planning described the proposal, in section 2 of his report, as being for "a Waste Transfer Station with a proposed capacity of 29,400 tonnes of municipal and trade waste per annum, broken down into an estimated 13,600tpa of residual waste, 2,400tpa of trade waste, 4,200tpa of food waste and 9,200tpa of dry recycling waste", with an average daily throughput of 113 tonnes. This, he said, "would form part of the delivery of an integrated network of new waste facilities to manage municipal waste across Essex" and "would allow for the separate receipt and bulking of food, dry recycling and residual waste from the Uttlesford area for subsequent transport to waste treatment facilities across the County".
The officer told the committee that the waste would be delivered by "refuse collection vehicles (RCVs) and other municipal vehicles". These would come to the site "via the access road (shared with the ambulance station and Brook Cottage) off Chelmsford Road via the B184 and the B1256". The "maximum traffic generation on any one day would be 74 vehicle movements (37 in, 37 out) per day". All of the "waste handling activities" would be undertaken inside the building. No processing of waste was proposed. The waste transfer station would operate between 7 a.m. and 5 p.m. on Monday to Friday, and between 9 a.m. and 5 p.m. on Saturdays, and not at all on Sundays and Bank Holidays. The existing access road from Chelmsford Road was to be resurfaced and extended beyond the ambulance station.
The officer explained how this proposal differed from the previous one:
"The current application differs from the previous permission … in that it doesn't include [a] Recycling Centre for Household Waste (RCHW) or overnight parking for refuse collection vehicles. The decision not to continue with the RCHW was taken by ECC in consultation with [the District Council], due to the achievement of increased household waste recycling rates and improvements made to other recycling facilities in the vicinity, for example at Saffron Walden and Springwood Drive, Braintree. The kerbside recycling service has also been expanded within the Uttlesford district."
Issue (1) — EIA
The EIA regime
Article 2(1) of Directive 2011/92/EU ("the EIA directive") requires Member States to adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment are made subject to an assessment of their effects. For projects listed in Annex II, Article 4(2) requires Member States to determine whether the project is to be made subject to EIA either through case-by-case examination or by the use of thresholds or criteria set by the Member State. Annex III sets out the relevant selection criteria.
In Commission v Italy [2004] E.C.R. I-5975 the European Court of Justice held (in paragraph 44 of its judgment) that "whatever the method adopted by a Member State to determine whether or not a specific project needs to be assessed, be it by legislative designation or following an individual examination of the project, the method adopted must not undermine the objective of the [EIA directive], which is that no project likely to have significant effects on the environment, within the meaning of the [EIA directive], should be exempt from assessment, unless the specific project excluded could, on the basis of a comprehensive screening, be regarded as not being likely to have such effects …".
The requirements of the EIA directive have been transposed into...
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