R (on the application of Christopher Prideaux) v Buckinghamshire County Council Fcc Environment Uk Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lindblom |
| Judgment Date | 29 April 2013 |
| Neutral Citation | [2013] EWHC 1054 (Admin) |
| Date | 29 April 2013 |
| Docket Number | Case No: CO/11458/2012 |
| Court | Queen's Bench Division (Administrative Court) |
[2013] EWHC 1054 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Lindblom
Case No: CO/11458/2012
and
Mr Ian Dove QC and Miss Jenny Wigley (instructed by Richard Buxton Solicitors) for the Claimant
Mr David Elvin QC and Mr Richard Turney (instructed by Head of Legal and Democratic Services, Buckinghamshire County Council) for the Defendant
Mr James Maurici (instructed by Walker Morris Solicitors) for the Interested Party
Hearing dates: 12, 13 and 14 March 2013
By this claim for judicial review the claimant, Christopher Prideaux, challenges the planning permission granted by the defendant, Buckinghamshire County Council ("the County Council") on 27 July 2012 for an energy from waste facility on land at Greatmoor Farm, Calvert Landfill Site at Calvert in Buckinghamshire.
The claimant lives near the development site. He seeks to have the planning permission quashed on three main grounds. He contends that the County Council failed (1) to comply with the requirements of Council Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild Fauna and Flora ("the Habitats Directive") and the Conservation of Habitats and Species Regulations 2010 ("the 2010 regulations"); (2) to apply the Government's planning policy for nature conservation in the National Planning Policy Framework ("the NPPF"); and (3) to provide adequate reasons for the grant of planning permission.
This claim came before me at a rolled-up hearing. It is one of two claims attacking the planning permission. The other, brought by Mr Kenneth Kolb, (CO/12966/2012) was heard immediately after this one. Judgment in that case is also being handed down today.
Background
The development of an energy from waste facility at Greatmoor Farm is an essential part of the County Council's waste planning strategy in its Minerals and Waste Core Strategy, which was adopted in November 2012. Policy CS11 of the core strategy allocates the site as a strategic waste complex, including a facility for the recovery of energy from waste.
The facility will treat up to 300,000 tonnes of waste generated by households and businesses in Buckinghamshire each year. It is intended to take all of the waste produced by the county's residents — some 500,000 people. It will enable the County Council, as waste disposal authority, to manage the equivalent of the county's own waste arisings by 2016, a target set in Policy 10 of the Buckinghamshire Minerals and Waste Local Plan 2004–2016. The County Council believes there is now an urgent need for the development.
The developer is the interested party, FCC Environment UK Limited ("FCC"), formerly Waste Recycling Group Limited. In March 2007 the County Council began the procurement process for its residual waste treatment contract, with a view to diverting waste from landfill. In February 2011 FCC emerged from that process as the County Council's preferred bidder. The relationship between FCC and the County Council is now close to being formally agreed in a contract.
The land on which the facility is to be developed lies next to a site already being used for landfill. To serve the new development FCC propose to build an access road from the A41 along the route of a disused railway line. This will take traffic to and from the site without its having to go through the villages of Grendon Underwood, Edgcott and Calvert.
The claimant objected to the proposed development because of the impacts he feared it would have on wildlife, and also because he was opposed to the demolition of buildings at Upper Greatmoor Farm to make way for the access road.
The works involved in constructing the access road will affect the habitat of three European Protected Species — the common pipistrelle bat, the brown long-eared bat and the great crested newt. The old railway line also has a number of important invertebrates on it, including almost 10% of the national population of the black hairstreak butterfly, as well as other butterflies, among them the brown hairstreak and the grizzled skipper. There are four Sites of Special Scientific Interest between about 200 metres and about a kilometre from the disused railway line, at Sheephouse Wood, Grendon and Doddershall Woods, Finemere Wood, and Ham Home-cum-Hamgreen Woods. Black hairstreak and brown hairstreak butterflies are an identified feature of interest in the designation of all four.
The application for planning permission was submitted by Waste Recycling Group Limited on 1 October 20It was accompanied by an environmental statement.
The environmental statement
In section 8 of the environmental statement, which dealt with "Transport", the options for access to the site were discussed. In November 2007 Scott Wilson had produced the Calvert Landfill Site Road Access Study. The access arrangements had then been "agreed in principle" (paragraph 8.10). Seven options had been considered (paragraph 8.11). Shown on figure 8–1 and described in the text, they included both routes running to the south of the site, one of which was the "selected option" (the Akeman Street railway route, Option 4), and others that would require the use of roads through local villages to the north and west. The favoured route followed the line of the disused railway between the A41 and the Aylesbury to Bicester line. Because of its length it would be "the most expensive option to construct" (paragraph 8.12). However, it was the only one that would "completely remove traffic from local country roads" (ibid.). The road would "pass over the site of the existing 1950s buildings at Upper Greatmoor Farm, to optimise the alignment into the EfW site", and these farm buildings "would therefore be demolished as part of the scheme" (paragraph 8.137).
Section 11 of the environmental statement addressed the likely ecological impacts of the development, and the appropriate mitigation. Paragraph 11.107 described the function of the old railway line in providing habitat and a corridor for the black hairstreak butterfly as being of "up to National value". Paragraph 11.135 said this:
"Similar habitats are available in the local surrounding landscape, which may reduce the magnitude of the predicted impacts for many species. However, black hairstreak has limited dispersal ability and alternative habitats may not be accessible. Research has shown that black hairstreak took 13 years for a new colony to become established from existing colonies only 400m away. The development is therefore predicted to have a direct negative impact upon invertebrate assemblages on the access road of up to Parish value and upon populations of grizzled skipper and glow worms of up to District Value. The development is also predicted to have a direct negative impact on black hairstreaks of up to County value."
One of the identified impacts on black hairstreak butterflies was the effect of dust generated during construction. Combined with "habitat loss and fragmentation", this was predicted to have "significant adverse effects" upon the local populations of this species (paragraph 11.150).
In table 11–6 a loss of habitat for the "Invertebrate Assemblage" of "[up] to 100% within the access road" was predicted. The impact without mitigation was described as "Negative …, significant at National level". The mitigation and compensation proposals were the "[creation] of suitable habitat for range of invertebrate species, with specific habitat created for grizzled skipper, glow worms and black hairstreak, within habitat management area." The residual impact, after mitigation, was described as "Negative …, significant at National level in the short term until replacement habitat has matured and developed in suitability". However, this was expected to reduce to a "Neutral impact significant National level in the medium to long term".
For bats, the loss of foraging and commuting habitat was said to be a "Negative impact, significant at Parish level", if unmitigated. With mitigation, the impact would be "Negative …, not significant at Parish level" (ibid.).
For great crested newts, the loss of aquatic and terrestrial habitat would be "Negative …, significant at Parish level". With mitigation, the impact would be "Negative …, not significant at Parish level" (ibid.).
The further environmental information
On 11 July 2011 the County Council requested further environmental information under regulation 19 of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. Among other things, it asked for more work to be done on the ecological impacts of the development. It sought further information about the likely impact of the development on the four Sites of Special Scientific Interest and specifically on the habitat of black hairstreak and brown hairstreak butterflies. It also required further surveys of bats and great crested newts.
Further environmental information was provided to the County Council in October 2011, December 2011 and February 2012.
The "Updated Ecological Impact Assessments"
The further environmental information included "Updated Ecological Impact Assessments" dated October 2011 ("the October 2011 ecological report"), which had been compiled by FCC's consultants, SLR Consulting Limited ("SLR").
Among the consultees listed in paragraph 1.3 of the October 2011 ecological report was...
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