R (on the application of Amanda Surringer) v Vale of Glamorgan Council Raymond Brown Minerals & Recycling Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr Justice Coulson |
| Judgment Date | 17 March 2016 |
| Neutral Citation | [2016] EWHC 494 (Admin) |
| Docket Number | Case No: CO/5034/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 March 2016 |
[2016] EWHC 494 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Cardiff Civil and Family Justice Centre,
2, Park Street, Cardiff, CF10 1ET
The Hon Mr Justice Coulson
Case No: CO/5034/2015
and
Ms Victoria Hutton (instructed by Richard Buxton Environmental and Public Law) for the Claimant
Mr David Hercock (instructed by Legal Services, Vale of Glamorgan) for the Defendant
Hearing date: 1 March 2016
INTRODUCTION
The claimant challenges the decision of the defendant council ("VoG"), made on 4 September 2015, to grant full planning permission to the Interested Party ("Brown") for the construction of a facility for the recycling of incinerator bottom ash ("IBA"). The recycling process produces incinerator bottom ash aggregates ("IBAA") for use in road construction, and also allows the recovery of metals. The site to which the application related is at Wimborne Road in Barry ("the site").
On 3 December 2015, Collins J gave the claimant permission to make this application. At that time, there were five grounds. Grounds 1 and 2 concerned the categorisation of the IBA; Ground 3 was concerned with the consultation process; and Grounds 4 and 5 related to the potentially harmful effects of dust from the site. The claimant now seeks to introduce a sixth ground, which is loosely connected to the categorisation issue at Grounds 1 and 2.
In giving permission, Collins J said:
"While I recognise the force of the matters raised in the Acknowledgement of Service, the elaborate and lengthy arguments do not persuade me that the claim is unarguable. The categorisation of the waste and the effects of the dust are highly material and it seems to me to be arguable that the officer's report did not adequately inform the committee of all that was needed."
I propose to deal with the issues that arise in this case as follows. In Section 2, I deal briefly with the plant where the incineration occurs. In Section 3, I set out the history of the planning application. In Section 4, I deal with the decision. In Section 5, I set out the relevant legal principles. In Section 6, I make some general observations about the grounds of challenge before, at Sections 7–12 inclusive, addressing each of the specific grounds. There is a summary of my conclusions in Section 13 below. I am very grateful to both counsel for the excellence of their written and oral submissions.
THE TRIDENT PLANT
In 2010, Viridor Waste Management Limited were granted permission to build and operate an incinerator at a site at Trident Park in Cardiff. There were references to Viridor's Lamby Way tip and I was told at the hearing that this was part of the same site. The granting of that permit was controversial, in part because of the IBA produced as a result of the incineration operation. In the decision document granting the permit, the Environment Agency said:
"The Environment Agency recognises that most incinerator bottom ash (IBA) is likely to be classified as non-hazardous waste. However, IBA is classified on the List of Wastes as a 'mirror entry' which means it could potentially be categorised as a hazardous waste if it is found to possess a hazardous property."
It appears that, at that time, a site was identified in Cardiff, close to Trident Park, for the recycling of the IBA. It was decided for environmental reasons that that site was unsuitable.
The evidence provided on behalf of the claimant makes repeated references to the alleged problems created as a result of Viridor's incineration operation at Trident Park and the tip at Lamby Way. In particular, Mr Wallis, a retired mathematician and scientist, who is a member of Barry and Vale Friends of the Earth and who has provided almost all the evidence relied on by the claimant, makes a number of references to this other site in both his responses to the consultation and in the evidence before the court.
In my view, the evidence in respect of the Trident Park site is of very limited relevance to the issue before me. There is nothing to suggest that the incineration operation run by Viridor is not continuing generally in accordance with the terms of its permit. The fact that the battle against that permit was lost may have coloured the environmental opposition to the current grant of planning permission 1, but it is important to ensure that this application focuses on the decision to grant permission for the site in Barry, and does not get sidetracked by the (long lost) battle over Trident Park.
THE PLANNING APPLICATION
The application for planning permission in respect of the Barry site was made by Brown on 27 March 2015. It was accompanied by a large suite of documentation. This included the Environmental Statement ("ES"). At paragraph 3, under the heading 'IBAA and its Use', the ES said:
"The site will process Incinerator Bottom Ash (IBA) produced at the Trident Park Energy Recovery Facility in Cardiff. The ERF plant will burn 350,000 tonnes of waste a year. This will result in the production of 75,000 of IBA which equates to just over 20% of the burnt waste. This rate of production is expected to continue for the foreseeable future, although it could fluctuate. The IBA is non-hazardous and suitable for processing to produce recycled aggregates. The Barry facility would produce approximately 67,500 tonnes of recycled aggregate and therefore be a major source of recycled material in South Wales, contributing towards meeting the planned requirements as an alternative to Land 1 materials."
Further, there was an Ecological Assessment which, amongst other things, addressed the possible consequences of the proposed recycling development for the Cadoxton Wetlands, the closest Site of Importance for Nature Conservation (SNCI). The SNCI
is sometimes referred to in the documents as the Dow Corning Nature Centre. In the Ecological Assessment, the authors noted:"8.1.3 Dust will be managed according to best practice under a dust management plan. No adverse impact is therefore predicted either on site or on adjacent sites…
8.2.1 The closest non-statutory site, the Cadoxton Wetlands SNCI is within 50 metres at the closest point. It is concluded that there will be a negligible impact on the site…
10.1.3 The development will not affect the only area of semi-natural vegetation and the impact on the site is considered to be negligible. There is not considered to be any greater effect on adjacent land including Cadoxton Wetlands SNCI on the grounds of direct impact, dust, disturbance and hydrology."
Because of the proposal to store the IBA at the site, there was a Dust Assessment. This was a relatively lengthy document which included, as an appendix, a dust emission assessment and control scheme. The Dust Assessment itself said in respect of the proposed operations:
"IBA is produced from the incineration of municipal waste and as such is highly variable in composition and typically consists of a mixture of glass, ceramics, brick and cement, as well as ash and clinker (e.g. nodules of coke and slag).
Raw IBA has a high pH and a relatively high moisture content. The IBA conditioning process is exothermic and steam can rise from the windrows, especially in cold weather. A salty odour can derive from the IBA during conditioning.
There is a range of methods for producing IBAA from IBA; most involve 'dry' treatment which involves mechanical processing of the IBA such as size reduction, screening and ferrous/non-ferrous metals separation.
Prior to screening, IBA is naturally aged (i.e. weathered) in stock piles outdoors for several weeks. This stabilises the material by utilising the pozzolanic (cement-like) properties of the incinerator ash and allowing a range of chemical processes to take place, including oxidation, carbonation, hydration and hydrolysis.
The IBA aging process reduces the pH of the resultant IBAA to below 10, with a typical pH of 9.5–9.8. Stock is rotated so that the IBA is aged sufficiently before processing and weekly tests are undertaken to determine the pH with the IBAA.
The chemical composition of the IBA varies widely according to source material but can comprise common elements such as silicon, iron and calcium. Less abundant elements include lead (Pb) and Cadmium (Cd). The proportions of the elements found in IBA are likely to vary between incinerators and within the same incinerator over time due to the changeable composition of waste disposed."
Dealing with dust propagation, the Dust Assessment said:
"Dust propagation at source depends on particle size, wind energy and other mechanical disturbance activity. Large dust particles generally travel shorter distances than small particles. It is often considered that particles greater than 30UM will largely deposit within 100 metres of sources; those between 10–30UM to travel up to 250–500 metres and particles less than 10UM to travel up to 1km from sources."
Section 6.2 of the Dust Assessment comprised a detailed assessment of the dust risk. Amongst other things it stated:
"Secondly, in relation to wind-blown dust, table 2 shows that less than 10% of the winds blow in an arc from north- east to south-west at speeds above 6m/s. Therefore, from figure 4, there is a low likelihood of propagation of wind-blown dust towards residential receptors along Dock View Road and Hillary Road.
As previously, figure 5 indicates that the magnitude of any dust impact at Dock View Road and...
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