R (1) Birchall Gardens Llp and (2) Tarmac Trading Ltd v Hertfordshire County Council (1) Bp Mitchell Ltd and Others (Interested Parties)

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Holgate
Judgment Date04 November 2016
Neutral Citation[2016] EWHC 2794 (Admin)
Date04 November 2016
Docket NumberCase No: CO/1458/2016

[2016] EWHC 2794 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Hon. Mr Justice Holgate

Case No: CO/1458/2016

Between:
The Queen On The Application Of (1) Birchall Gardens Llp And (2) Tarmac Trading Limited
Claimants
and
Hertfordshire County Council
Defendant

and

(1) Bp Mitchell Limited
(2) Welwyn Hatfield Borough Council
(3) East Hertfordshire District Council
Interested Parties

James Maurici QC and Richard Clarke (instructed by Nabarro LLP) for the Claimants

William Upton and Emmaline Lambert (instructed by Legal Services, HCC) for the Defendant

David Forsdick QC (instructed by Fladgate LLP) for the First Interested Party

The Second and Third Interested Parties did not appear and were not represented

Hearing dates: 04/10/2016 and 5/10/16

Approved Judgment

Mr Justice Holgate
1

The Claimants apply for judicial review of the decision by the Defendant, Hertfordshire County Council ("HCC"), to grant planning permission on 4 February 2016 to the First Interested Party, B.P. Mitchell Limited ("BPM"), for an inert waste recycling facility (including associated stockpiling, maintenance infrastructure, access and landscaping) on land lying to the south of Birchall Lane, Cole Green, Welwyn Garden City, Hertfordshire. Permission to apply for judicial review was granted by Collins J on 6 May 2016.

2

The area of the application site is 10.57 hectares, of which 3.9 hectares would be occupied by the proposed development. The development area comprises two parts:

2.2 hectares which have been the subject of temporary planning permissions granted in 2006 and 2013 for inert waste recycling and land restoration and

1.7 hectares for proposed new works and stockpiling.

The application proposes that the existing temporary development be permanently retained. A substantial part of the remaining 6 hectares or so of the application site is proposed to be planted with additional woodland, particularly in the western, south-western, and southern parts of the site. BPM has operated the existing recycling facility and would operate the enlarged works.

3

The application site lies approximately 900m to the east of Welwyn Garden City and about 625m west of the A414, to which it is linked by Birchall Lane. The site lies in the Green Belt. Birchall Lane runs east-west along the northern boundary of the site.

4

The land to the north of Birchall Lane is farmland and the land to the south has been worked for sand and gravel extraction, then infilled with waste and restored for use as grazing land. The nearest property is a Grade 2 listed building, Birchall Farm, which lies about 200m to the north east.

5

The application site has been allocated in the Hertfordshire Waste Site Allocations Document July 2014 ("the WSAD") as being potentially suitable for a range of waste management uses, including the recycling of inert waste. The WSAD is a Development Plan Document which forms part of the statutory Development Plan for the area in which the application site is located.

6

According to the Glossary to the WSAD inert wastes are "wastes that do not undergo any significant physical or biological transformations when deposited in a landfill." That concept is similar to the more detailed definition of "inert waste" in Article 2 of the Landfill Directive 1999/31/EC which adds:—

"Inert waste will not dissolve burn or otherwise physically or chemically react, biodegrade or adversely affect other matter with which it comes into contact in a way likely to give rise to environmental pollution or harm human health. The total leachability and pollutant content of the waste and the ecotoxicity of the leachate must be insignificant, and in particular not endanger the quality of surface water and/or groundwater." (emphasis added).

7

The administrative boundary between East Hertfordshire District and Welwyn Hatfield Borough runs diagonally from north west to south east through the middle of the application site. Whereas HCC is responsible for mineral and waste planning, these two authorities are responsible for residential planning issues. To the north east of the site lies land which has been shown in the draft East Herts Local Plan as a "broad location" for the development of up to 1700 homes under policy EWEL 1. The feasibility of this proposal was to be "tested" through a subsequent Development Plan Document. Land to the south west of the application site is "assessed" under policy WGC5 of the draft Welwyn Hatfield Local Plan as being a potential location for 700 dwellings. Both drafts were produced for consultation. They had not yet reached the stage at which the plan would be submitted for statutory examination by an independent Inspector. It is common ground that these policies were emerging draft policies.

8

In 2015 the First Claimant, Birchall Gardens LLP ("BGL") became the owner of these areas of land to the north and south of the application site, potentially identified for residential development. The Second Claimant, Tarmac Trading Limited ("Tarmac") has entered into an agreement with BGL to promote the two areas of potential housing land as the Birchall Gardens Suburb.

9

Welwyn Hatfield Borough Council ("WHBC"), East Hertfordshire District Council ("EHDC") and Tarmac all made objections to the planning application made by BPM. The two authorities (respectively the Second and Third Interested Parties) were served with the Claim in this case but did not participate in the hearing.

10

I am grateful to all counsel for the clear and helpful submissions which they made.

11

This judgment is set out under the following headings:—

(i) Local planning policies;

(ii) The planning history of the application site;

(iii) BPM's planning application and the process followed by HCC;

(iv) Summary of the grounds of challenge;;

(v) Ground 1;

(vi) Ground 2;

(vii) Ground 3;

(viii) The Court's discretion where reasons in a screening opinion are inadequate.

(i) Local planning policies

HCC's policies

12

The Hertfordshire Waste Core Strategy 2011–2026 was adopted in November 2012. It forms part of the statutory Development Plan. Policy 6 of the strategy deals with applications for waste management facilities within the Green Belt. A proposal is required to demonstrate "very special circumstances" sufficient to outweigh the harm to the Green Belt together with any other harm identified. The policy lists a number of criteria which will be taken into account when assessing proposals within the Green Belt, including "site characteristics" and the need for development that cannot be met by "alternative, suitable non-Green Belt sites."

13

The WSAD was adopted by HCC in July 2015. The document has been prepared so as to be in conformity with the Waste Core Strategy. It identifies sites for waste management facilities "based on a process of site assessment and selection" (see paragraph 1.6). Paragraph 4.6 explains that the document identifies eight "Allocated Sites" which HCC considers to be the most suitable locations to manage the county's existing and future waste arisings during the plan period. The sites had been tested through HCC's site selection methodology. The Allocated sites included the application site on land off Birchall Lane. Paragraph 4.8 of the plan states that there were exceptional circumstances for the allocation of 5 Green Belt sites for waste management purposes. The plan envisages that these sites would be excluded from the Green Belt by altering its boundary in local plans prepared by the relevant district councils. But it wasmade clear that "until that time, there would have to be a demonstration of very special circumstances in respect of any inappropriate development. Such very special circumstances would include the fact that allocation of the site for waste management purposes was deemed acceptable under the terms of" the WSAD.

14

Paragraph 4.10 of the WSAD explains that:—

"The Waste Site Briefs for the Allocated Sites identify the types of waste management that could be appropriate on the Allocated Sites. An indication of size of facilities that could be appropriate is given in each of the waste site briefs. However, the size and nature of the development will still need to respect the characteristics of the sites and their surroundings. Particular considerations are noted in the Site Briefs."

It was also made clear that the allocated sites should not be developed

for any purpose other than waste management.

15

Policy WSA2 states that HCC will grant planning permission for waste management facilities located on the Allocated Sites and also on Employment Land Areas of Search identified on the inset maps of the Plan, provided that the development accords with relevant policies in the Development Plan. Policy WSA2 also requires decision-makers to take into account a number of matters including "iii. The Allocated Site specific requirements identified in the relevant waste site brief."

16

The Site Brief for the application site refers to its planning status as being "situated in the Metropolitan Green Belt on a site temporarily used for inert waste recycling and soil washing, in conjunction with the restoration of the historic landfill." The Brief indicates a range of potential uses of the application site ranging from anaerobic digestion and composting to inert waste recycling. The Brief states that small or medium or large scale facilities may be suitable on the site. Acknowledging that the temporary planning permission would expire in April 2016, the Brief stated that the site could become available for development within the first 5 years of...

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3 cases
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    ...different cases, the function is one for which the courts are ill-equipped.” 27 More recently, in R (Birchall Gardens LLP) v Herts CC [2017] Env. L.R. 17, Holgate J. reiterated these principles at [66] – [67]: “66. It is common ground that the analysis in paragraph 20 of the judgment of Moo......
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