R Marc Arie Becker v Hertfordshire County Council
| Jurisdiction | England & Wales |
| Judge | Keyser |
| Judgment Date | 27 July 2018 |
| Neutral Citation | [2018] EWHC 1974 (Admin) |
| Date | 27 July 2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/340/2018 |
[2018] EWHC 1974 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
HIS HONOUR JUDGE Keyser Q.C.
sitting as a Judge of the High Court
Case No: CO/340/2018
- and -
Ned Westaway (instructed by Richard Buxton Environmental & Public Law) for the Claimant
Richard Turney (instructed by Hertfordshire County Council Legal Services) for the Defendant
Charles Streeten (instructed by Woodfines LLP) for the Interested Party
Hearing dates: 19 July 2018
Judgment Approved
H.H. Judge Keyser Q.C.:
Introduction
The claimant, Mr Marc Becker, is, together with his wife, the owner and occupier of a house and land known as Kemprow Farm, Kemprow, Aldenham, Hertfordshire. Kemprow Farm lies on Oakridge Lane, also known at that point as Kemprow Road, which is a two-lane rural road. The property is almost directly opposite the junction between Oakridge Lane and a smaller public highway called Blackbirds Lane.
The interested party, Mr Alistair Pinkerton, is a farmer. He farms Blackbirds Farm, an arable farm that is situated within the Metropolitan Green Belt. Blackbirds Farm lies on Blackbirds Lane and can also be accessed via a private lane, which joins the public highway at Oakridge Lane. The Farm itself comprises some 440 ha of land, of which 206 ha is held by the interested party on an agricultural tenancy from the defendant, Hertfordshire County Council. The interested party has other holdings in the vicinity, which he farms as part of the same business activity as Blackbirds Farm but which are not contiguous with the Farm and can only be accessed from the Farm via the public highway. One such holding is called School Field and another is called, among other things, Garston.
On 25 September 2009, the defendant, as local planning authority, granted to the interested party planning permission (“the 2009 Permission”) for the change of use of the existing silage pits at Blackbirds Farm to use for open windrow composting of green waste. The site to which the permission related (“the 2009 Site”) was an area immediately to the north- east of the main farm buildings and comprised the silage pits and a reception area where vehicles would bring the green waste to the site. The 2009 Permission was subject to various conditions, which I shall describe and discuss in detail later. One of these related to the approval by the defendant of the location of any maturation pads for the compost produced at the site. However, no planning permission was granted for the use of any land for the maturing of compost. The interested party implemented the 2009 Permission and proceeded to mature compost at various maturation pads that had been approved by the defendant's officers; the need for planning permission was, however, overlooked. One of those maturation pads was at Broad Field, which is part of Blackbirds Farm and is accessible from the 2009 Site across land comprising part of the Farm. Another was at School Field. When ready for use, compost from the maturation pads was taken to various locations on Blackbirds Farm and to Garston for use there.
In time, issues arose concerning breaches of planning control in respect of the operation of the 2009 Site and the use of the maturation pads, including Broad Field and School Field. The interested party made three planning applications to the defendant: two for variation of the conditions on the 2009 Permission and one for permission for the use of Broad Field as a maturation pad. The defendant granted those applications and on 13 December 2017 made three decisions under the Town and Country Planning Act 1990 (“the 1990 Act”):
1) Pursuant to section 73A, to grant retrospective planning permission to the interested party for the continued use of a pad for the maturing of compost at Broad Field (“the Broad Field Permission”);
2) Pursuant to section 73, to vary condition 2 on the 2009 Permission;
3) Pursuant to section 73, to vary conditions 6 and 7 on the 2009 Permission.
(I shall describe more accurately below the precise nature of the two decisions under section 73.)
With permission granted by Mr Rhodri Price Lewis Q.C., sitting as a deputy High Court judge on 4 April 2018, the claimant applies for judicial review of those three decisions.
The remainder of this judgment will be structured as follows. First, I shall set out the facts in more detail. Second, I shall summarise the grounds on which the decisions are challenged. Third, I shall refer to some general points of law that are relevant to the challenge to the decisions. Fourth, I shall consider the grounds of challenge in turn.
I am grateful to Mr Westaway, Mr Turney and Mr Streeten, counsel respectively for the claimant, the defendant and the interested party, for their helpful written and oral submissions.
Facts
The 2009 Permission was subject to eighteen conditions, among which the following may be noted:
“2. DELIVERY AND OPERATING HOURS
Unless prior approval in writing by the Waste Planning Authority [i.e. the defendant] has been given, no deliveries shall take place at the site except during the following hours:
7.30am – 5.00pm Monday to Friday (no deliveries on Saturdays, Sundays or Public and Bank Holidays)
Unless prior approval in writing by the Waste Planning Authority has been given, no operations shall be undertaken at the site except during the following hours:
7.30am – 5.00pm Monday to Friday
8am – 12.30pm on Saturdays (no operations on Sundays or Public and Bank Holidays)
Reason: To minimise the adverse impact of deliveries and operations on the surrounding area in terms of noise, traffic generated and general disturbance.”
“3. GREEN WASTE THROUGHPUT
The maximum throughput of green waste shall not exceed 8,000 tonnes per annum.
Reason: In the interest of the amenity of nearby residential properties.”
“5. RESALE OF GREEN WASTE COMPOST
The compost generated from the green waste composting hereby permitted shall be used wholly on the land at Blackbirds Farm and there shall be no resale of the compost under any circumstances.
Reason: In the interests of the amenity of nearby residential properties.”
“6. VEHICLE MOVEMENTS
Throughout the lifetime of this planning permission, the combined total number of vehicle movements associated with the green waste composting activity shall be no more than 10 vehicle movements (5 in and 5 out) including HGV vehicles over 7.5 tonnes movements per day at the site, from Mondays to Fridays, and no more than 6 vehicle movements (3 in and 3 out) at the site on Saturdays.
Reason: In the interests of highway safety and so that there shall be no adverse effects upon the free and safe flow of traffic along the public highway in the vicinity of the site.”
“7. VEHICLE REGISTER
A register shall be kept of all vehicles visiting the Site. The register shall be maintained, continually updated and made available for inspection upon the request of officers of the Waste Planning Authority during normal working hours. The register shall include the vehicle registration number, the nature and quantity of the load (tonnage of waste imported) and the date and time of arrival or departure from the site.
Reason: In the interests of highway safety and to minimise adverse effects upon the free flow of traffic along the highways in the vicinity of the site and to assist the Waste Planning Authority in monitoring the site.”
“18. AREAS USED FOR COMPOST MATURATION
Prior to the removal of any waste for maturation, details of the location of the maturation areas shall be submitted to the Waste Planning Authority. Only those areas which have received approval for maturation purposes shall be so used.
Reason: To minimise the adverse impact of operations on the local community.”
Condition 18 caused some confusion, though it ought not to have done so. It appears that the defendant's officers proceeded on the basis that approval of maturation pads, as required by that condition, was sufficient to render the use of those pads lawful. It was not: the use of sites as maturation areas was subject to a requirement of planning permission. This misapprehension went uncorrected for some years.
In brief, the composting operation is as follows. Green waste is brought to the 2009 Site, where it is shredded and formed into windrows within the sileage pits. It remains in the sileage pits for some seven to fourteen days; during this period it is monitored and its temperature is kept under observation. The material is then moved to one of four maturation pads on sites agreed by the Environment Agency; these are required to be at least 250 metres from the nearest residential properties. There the green waste is stored in open windrows of up to 4 metres in height and is turned regularly while it matures. The maturation process takes approximately six weeks, depending on the time of year, the weather conditions, and the type of material being composted. During the composting process the material is classed as waste. However, when the screening of the material shows that it has achieved the Publicly Available Specification 100 (BSI PAS 100) it ceases to be waste and is classed as compost.
In 2011 the claimant and his wife purchased Kemprow Farm and went to live there with their children. In 2014 he began to complain to the defendant about odour and noise from the composting operations at the 2009 Site, about HGVs making early morning deliveries to the site, and about disturbance caused by movements from the 2009 Site of HGVs and tractors (sometimes referred to as JCBs, though I shall generally refer only to tractors) with trailers; this last complaint related both to access at anti-social hours and to...
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