Residents against Waste Site Ltd v Lancashire County Council Global Renewables Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Irwin |
| Judgment Date | 07 November 2007 |
| Neutral Citation | [2007] EWHC 2558 (Admin) |
| Docket Number | Case No: CO/1320/2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 November 2007 |
[2007] EWHC 2558 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Hon Mr Justice Irwin
Case No: CO/1320/2007
David Wolfe (instructed by Public Interest Lawyers Birmingham ) for the Claimants
David Elvin QC and Charles Banner (instructed by Lancashire County Council ) for the Defendant
Hearing dates: 20 -21 September 2007
Judgement
Mr Justice Irwin :
Factual Background and Chronology
The Defendant Lancashire County Council [LCC] is both the Waste Disposal Authority and the Waste Planning Authority for Lancashire. The Interested Party, Global Renewables Ltd [Global] is the main contractor for building work on the relevant site. The Claimant, Residents Against Waste Site Limited [RAWS] is a limited company formed to represent the interests of local objectors to the development in question. The circumstances of the formation of the company are relevant and I address them later in these reasons. RAWS seeks judicial review of the grant of planning permission for a waste technology plant on the site of the old Leyland Vehicles Test Track at Farrington Moss, Leyland in Lancashire.
The site in question is 14.6 hectares in area. Previous planning permission was granted for a smaller waste disposal facility on the site. This plan would not have occupied the whole site and was not proceeded with, but forms a backdrop to this application. There has thus for a long period been the prospect of such a development on this site, in one form or another.
On 17 July 2006, LCC as Waste Disposable Authority applied to itself as Waste Planning Authority for planning permission for a large facility with a capacity of dealing with 305,000 tonnes of waste per year from households and civic amenities sites in the South Ribble, Preston, Chorley and West Lancashire areas. A plan of the site was included in the evidence before me.
As part of the application, an environmental impact assessment was carried out, addressing the need for the development and alternative developments; the environmental context; planning policy and land use; geology soils and contamination; water resources, ecology, landscape and visual amenities; traffic, noise, air quality, and recreation and cultural heritage. The results of the assessment were set out in an Environmental Statement that was submitted with the application. There was then a period of consultation within the community. It became clear from early on that there was a degree of local opposition to the development and from relatively early on some of those opposed formed Residents Against Waste Site, although not yet as a limited company. This grouping contained and contains residents of Farrington Moss, Farrington and Leyland, and includes borough councillors from the area. The group became a focus of opposition to the development, co-ordinating and presenting opposition during the planning process.
Some key points in the process towards the grant of planning permission were as follows. On 21 September 2006, the head of development control for LCC, Stuart Perigo, presented a report to the Development Control Committee of the LCC. He recommended a site visit to the committee in view of some of the issues raised, including traffic increase, the proximity of the development to local residential property, flood risk, the impact of the development on the health of local residents, noise odour and light pollution, ecological impact and contamination on the site.
On 20 October, members of the Committee visited the site and viewed the surrounding area, including a visit to 39 Bispham Avenue, the closest property to the site.
In October 2003, LCC introduced web casting to its meetings, including the Development Control Committee, and all proceedings relevant to this application could be viewed live, or later through archive, accessed via LCC's web site. On 31 October the Committee heard a 30 minute presentation from a Mr Carter of RAWS. On 1 November 2006, the Committee met once more and heard further oral representations from two residents and three borough councillors. At this meeting, the Committee also received a presentation from Mr Perigo, including a summary of the project and the issues, together with an update of representations received, a summary of representations received by RAWS and a variety of other points. At the conclusion of this meeting, the Committee resolved to grant planning permission for the development, subject to the applicant (LCC as Waste Disposal Authority) signing a unilateral obligation for the provision and management of off-site ecological mitigation. Permission was also to be subject to conditions set out in the recommendation with one additional condition.
The decision granting the planning permission was issued on 22 November 2006, a decision co-ordinated with the signing of the unilateral undertaking on ecological mitigation on the same date.
On 28 November 2006, representatives of RAWS contacted Mr Philip Shiner, the solicitor who subsequently formed the company RAWS Ltd and was retained for the application before me. Mr Shiner saw some from the group on 29 November and on 1 December 2006 requested formal instructions from the group, and advised them of the need for urgency and promptness in making any application for judicial review and pointed out that an application would in any event have to be made before 21 February 2007. There was a further meeting on 11 December 2006, when it is clear that a fairly detailed explanation was given to the group as to what might be involved in mounting a legal challenge to the development.
Between 11 December 2006 and 17 January 2007, according to the witness statement of Mr Shiner of 2 May 2007, the members of the protest group "engaged in various awareness and fundraising activities", addressed the question of costs and refined their areas of concern, at least to some degree. It was only on 17 January 2007 that Mr Shiner was given authority to instruct counsel. He sent such instructions on 24 January 2007 and counsel advised promptly in an opinion written on Sunday 28 January 2007. As a result, Mr Shiner wrote a pre-action letter on 31 January 2007, which itself received a prompt and detailed response from LCC dated 12 February. The outcome was that a claim was served on LCC and on Global on 20 February 2007. This claim was therefore served 3 months and 3 weeks from the resolution that planning permission would be granted and was 2 days short of 3 months from the actual grant of planning permission on 22 November.
Common sense suggests that LCC and Global were perfectly alive to the risk of a legal challenge to the grant of planning permission. Contractual arrangements reached between them, mean that, in effect, LCC bear the financial risk of such a challenge. During the period between the decision of 22 November and the pre action letter of 31 January, LCC incurred external fees and internal costs in the region of £400,000 and Global incurred external fees and internal costs in the region of £2.38M. It is not surprising that in a project of this size, progress needs to be made and such costs incurred. On 2 March 2007, LCC entered into the Waste PFI Contract with Global. This contract also provides for the development of another plant elsewhere in the county. These two facilities are intended to enable LCC and Blackpool Council to meet their obligations under the Landfill Directive and the waste emissions legislation, to divert biodegradable municipal waste from landfill. It thus follows that LCC and Global entered the contract in the knowledge of the legal challenge, as is made clear in the witness statement of Arthur Browne, LCC's Director for Waste and Natural Resources Management. It was considered that LCC had no realistic option other than to conclude the contract.
A waste technology plant such as this requires a waste management licence to be granted by the Environment Agency. This was given on 28 March 2007.
An Acknowledgement of Service was filed with summary grounds on 14 March 2007. On 8 May 2007, Keith J ordered that there should be a "rolled-up" hearing of the application for permission to proceed with the claim and the substantive claim. He gave directions for accelerated service of detailed grounds and evidence and for the hearing. By this route, these rolled-up applications come before me. The matter was heard on 20 and 21 September 2007. I gave my decision on the second day of the hearing, with reasons reserved. I now give those reasons. It should be noted that throughout the hearing it was clear that there was an identity of interest and viewpoint between LCC and Global. The latter took no independent part in the proceedings.
Standing
LCC takes the point that RAWS lacks standing to bring the claim. Mr Elvin QC for LCC conceded immediately that the group of local residents and borough councillors who are members and officers of RAWS would as individuals have sufficient standing and that while they formed an incorporated association, those individuals and any unincorporated association formed of them, could properly bring this claim. The point thus turns on the formation of a company limited by guarantee.
The Claimant company was incorporated on 14 February 2007, 2 days before the claim was issued. Mr Elvin makes the point that the Claimant company could not therefore have been an interested party during...
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