Louise Bowen-west v Secretary of State for Communities and Local Government (First Defendant) Northamptonshire County Council (Second Defendant) Augean Plc (Third Defendant)
| Jurisdiction | England & Wales |
| Judge | THE DEPUTY JUDGE |
| Judgment Date | 03 November 2011 |
| Neutral Citation | [2011] EWHC 2930 (Admin) |
| Docket Number | CO/6357/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 03 November 2011 |
[2011] EWHC 2930 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
His Honour Judge Stephen Stewart QC
(Sitting as a Deputy High Court Judge)
CO/6357/2011
Mr R Buxton (Solicitor Advocate) (instructed by R Buxton & Co Solicitors) appeared on behalf of the Claimant
Mr R Warren (instructed by Treasury Solicitor) appeared on behalf of the First Defendant
The second defendant did not appear and was not represented
Mr R McCracken QC and Mrs A Graham Paul (instructed by Dickinson-Dees Solicitors) appeared on behalf of the Third Defendant
(As Approved)
The Decision Challenged and the Grounds of Challenge:
1. On 24 May 2011, the first defendant issued a decision letter granting to the third defendant permission for disposal of low level radioactive waste ("LLW") in addition to the already permitted hazardous waste ("HW") at an existing HW landfill site known as the East Northants Resource Management Facility ("the site"). The grant was until the expiry of the current permission on 31 August 2013.
2. The claimant challenges the lawfulness of that decision on two grounds. She alleges:
(i) That the Secretary of State granted planning permission without consideration of the indirect, cumulative and likely significant environmental effects of permitting the development and, in deciding to do so, acted irrationally.
(ii) In (not) so doing failed to take into account that reducing the capacity available for the intake of hazardous waste rendered more likely the need for future expansion of the site beyond 2013.
3. The claimant's application, made under section 288 of the Town and Country Planning Act 1990, is to quash the first defendant's decision on those points of law.
4. The claimant is a local resident and a member of the King's Cliffe Wastewatchers, a local unincorporated group who participated at the inquiry as a Rule 6 party. The inquiry lasted for 14 days over a 5-week period in October/November 2010. The Inspector was Mr K G Smith and his report (the "IR") to the first defendant is dated 16 February 2011.
5. The claimant obtained a Protective Costs Order on 3 August in connection with this application.
Background
6. The site's consent for the disposal of HW was granted in 2006, permitting the disposal of 249,000 tonnes per annum of hazardous waste and inert materials. The site must be restored by 31 August 2013.
7. The third defendant sought permission, by application submitted on 21 July 2009, to fill parts of the site (namely phases 4B, 5A and 5B) with LLW. The second defendants refused permission despite the support of its officers. The first defendant allowed the third defendant's appeal following a recommendation from the Inspector.
8. The adequacy of the Environmental Statement ("ES") was raised by the second defendant and is at the heart of this claim. In paragraph 1.32 of the IR, this appears:
"Augean informed NCC in June 2010 that it intended to make an application in 2011 for an extension of the site onto adjoining land and to seek to extend the operating life of the site for an additional 13 years until 2026. Augean stated that it intended to apply to the Infrastructure Planning Commission (IPC) for a Development Consent Order in June 2011. Following this, at the Development Control Committee meeting of 27 July 2010, NCC approved 'additional reasons for refusal', as follows:
(a) The application is for piecemeal development of a project that should be the subject of a comprehensive application.
(b) The Environmental Statement submitted with the application assessed the application proposal in isolation, whereas it is in reality part only of a more substantial development: the application cannot be determined without assessment of the cumulative effects of the totality of the project.
(c) The Waste Planning Authority is not satisfied that, if planning permission were granted on this application, the proposed operations would be completed, and the site restored, by August 2013 in accordance with the planning permission…"
9. On 1 October 2010, prior to the commencement of the inquiry, the Planning Inspectorate issued a letter after considering written representations from the second and third defendants. I shall cite two short extracts from that letter:
"In the run-up to the inquiry it has emerged that the appellant also desires both to achieve an extension to the ENRMF site, and to achieve an extension to the life of the currently permitted site. Neither of these intentions forms part of the current appeal proposal. Northamptonshire County Council (NCC) and the appellant dispute the extent to which these intentions have previously been made evident to the Council and to the public…
In the Planning Inspectorate's view, the matters raised in relation to a future planning application for extension of the currently permitted site are not in themselves sufficient to support or to justify a requirement for further environmental information to be submitted under Regulation 19 of the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999."
10. Relevant to ground 1 of the claim are the following key passages:
10.1. In the IR:
" Precedent
7.69. Would a permission for this appeal create a precedent? To a significant degree, yes, if the new application is for or includes the landfilling of LLW. In general terms, the greater the similarity between proposals, the greater the potential precedent. I acknowledge that any new application would involve a change of circumstances from those pertaining now, in part from the passage of time or perhaps from proposals to construct new cells and develop the restoration proposals and landforms…
7.70. However, any new application would be on the same site now being considered or on an adjacent site and many other circumstances would remain the same or be little changed. And, as the new application is expected to be submitted in 2011, possibly shortly after the decision on this appeal, there will have been limited time for change with regard to matters such as policy or the development of competing facilities, which would affect the consideration of the proximity principle, BAT, need and so on. In the same way that appeal decisions elsewhere have been quoted here on the 'perception of harm' issue, I have no doubt that any conclusions that the SOS reaches on this appeal that are favourable to the appellant on actual harm, perception of harm, need, transport, highway safety, localism, economic effects and the like would be quoted by the appellant where relevant in support of a new application for the landfilling of LLW…
7.71. If this appeal is allowed, the chances of permission for a future proposal for the landfilling of LLW at or adjacent to the cells to be filled in this case would be enhanced.
Environmental Statement
7.72. The added 'reasons for refusal' (a) and (b) state, in essence, that this appeal is part of a project that should be the subject of a comprehensive application and that the Environmental Statement should have assessed the totality of the cumulative effects…
7.73. NCC was able to deal with the application that led to this appeal on the basis of the information that it had including the Environment Statement (ES). Augean advises that it only decided in May 2010, after the preparation of the ES, that it will seek to extend the use for hazardous waste until 2026 and, even now (at the time of the inquiry), states that it has not yet decided whether that application will include LLW. The current appeal is not part of a piecemeal proposal or an integral element of a comprehensive scheme; consequently, there would be no cumulative impacts of concern deriving from any future application that might include LLW. This appeal is for a stand-alone proposal which can be and is being considered on its own merits and, no doubt by reason of the precedent arguments outlined above, the appeal decision to be made could be a factor in any decision by Augean about a future application. It is not unusual for applications to be made to alter or extend the life of a temporary permission; at present, there are no details of any future proposals. I see no reason why the current appeal should not be dealt with on its own merits…
7.74. As to the ES, I find nothing to support NCC's claim that a permission in this case would frustrate the aims of the Environmental Impact Regulations and the Directive. As the current proposal is not part of a comprehensive scheme from which there would be a cumulative impact, I find nothing to support the claim that an assessment of cumulative impact would be deferred to be examined by an ES at the stage of the second application…
7.75 In relation to NCC's argument, in September 2010, before the opening of the inquiry, that additional environmental information should be required, the decision of Pins was that there was no justification for this. At the opening of the inquiry, NCC referred to the Mageean Case, which states that, with regard to an EIA screening direction, "only the Secretary of State can cancel or vary that screening decision". That case is (at the date of the inquiry) subject to challenge but, in any event, the submission about the adequacy of the ES are now before the SoS."
17. The first defendant's decision letter, paragraph 4:
" Procedural...
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