Smith v Secretary of State for the Environment, Transport and Regions and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Waller,Lord Justice Sedley,Mrs Justice Black |
| Judgment Date | 05 March 2003 |
| Neutral Citation | [2003] EWCA Civ 262 |
| Docket Number | Case No: C/2002/0302 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 March 2003 |
[2003] EWCA Civ 262
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
(ADMINISTRATIVE COURT AND DIVISIONAL COURT)
Mr Justice Silber
QUEEN'S BENCH DIVISION
Lord Justice Waller
Lord Justice Sedley and
Mrs Justice Black
Case No: C/2002/0302
Richard Clayton QC; Christiaan Zwart (instructed by Patwa solicitors) for the Appellant
Timothy Corner QC (instructed by Treasury Solicitor) for the first Defendant
John Barrett (instructed by Walker Morris) for the second Defendant
This is an appeal from the decision of Silber J given on 19 December 2001 whereby he dismissed an appeal, brought under section 288 of the Town and Country Planning Act, 1990 ("the 1990 Act"), by Maureen Smith ("the claimant"). By that appeal and the appeal to this court the claimant seeks to challenge the decision of the first defendant, the Secretary of State for the Environment, Transport and the Regions ("the Secretary of State"), who by his Inspector in a decision letter dated 14 March 2001 ("the Decision Letter") granted planning permission in respect of a proposed development at Buck Park Quarry, Whalley Lane, Denholme ("Buck Park Quarry") subject to certain conditions.
The effect of the decision was to extend planning permission (90/9/02224) ("the 1992 permission") granted on 26 March 1992 for the extraction of stone from Buck Park Quarry so as to extend the period for which permission had been granted, permit an increase in the depth of extraction at the quarry, and at the same time to facilitate the use of the quarry for the landfill disposal of up to 250,000 tonnes per annum of controlled waste for a period of ten years.
There were in fact two applications seeking the extension, the first of which was the subject of the Appeal to the Inspector, and the second of which was not. Each was supported by an Environmental Statement (ES). The first point dealt with by Silber J related to the question whether the Inspector on the appeal from the first refusal, was entitled to treat the ES relating to the second application as subsumed in the evidence before him. Silber J decided that the Inspector was so entitled. That point was to be the subject of an appeal, but at the commencement of the hearing Mr Clayton QC for the claimant abandoned that aspect of the appeal. For the purposes of this appeal it is accordingly possible to concentrate on the first application and its history.
The main point argued on the appeal did still concern the ES. An Environmental Statement was required by the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations, 1988, as amended ("the 1988 regulations"), which were made pursuant to the Council Directive 85/337/EEC ("the Directive"). There are now some new Regulations, but it is common ground that it is the 1988 Regulations that apply to this application. Certain of the authorities cited to us deal with the later regulations. It is not suggested that any change in language makes consideration of those authorities inapposite to the points that arise on this appeal. Certain important provisions of the Regulations and the Directive are matters to which I will return, but in broad terms an ES requires identification of any significant impact on the environment, and identification of mitigating measures to deal with that impact, and the regulations require the planning authority or the Inspector on an appeal to take into consideration the ES. The main point raised on the appeal requires consideration of the extent to which the Inspector must in granting planning permission make it an obligation of the applicant to carry out measures which will mitigate the impact on the environment, and the extent to which the Inspector can leave the extent of the obligation to carry out mitigation measures to a third party, in this instance the Local Planning Authority.
The History
The applicant and second respondent to this appeal is Integrated Waste Management Limited ("IWM"), 90% of which is owned by the local authorities of Hull, East Riding, North Lincolnshire and North East Lincolnshire. By planning application (98/01089/FUL) dated 9 April 1998 ("the planning application"), IWM applied to their Local Planning Authority, the City of Bradford Metropolitan District Council, ("the LPA"). The planning application sought to achieve three objectives:
(1) to vary conditions 2 and 24 of the 1992 permission,
(2) to landfill the quarry with controlled waste (that is, domestic, commercial and industrial waste),
(3) to introduce access improvements to the site.
Condition 2 had provided for a period of ten years, and the extension was for a further 4 years; Condition 24 permitted quarrying to a certain depth, and the application sought an extra eight metres.
The application was supported by an ES setting out the details of the development, the likely impact on the environment, and the measures proposed in mitigation. The application was also supported by the Report of the Head of Transportation and Planning [Tab 4 Core Bundle] ("the Report").
The planning application was opposed by, amongst others, an action Group of which the claimant was one. The claimant has lived in the village of Denholme for many years and she lives less than a mile from the proposed development. She with others contended that she was directly affected by the existing quarrying operation at the site and was likely to be substantially affected by the proposed development. The claimant's concern was, and still is, that the grant of planning permission to extend time, to increase the depth of workings at Buck Park Quarry and to permit the site to be used for the landfill disposal of controlled waste might generate considerable traffic, noise and other nuisance damage particularly from dust, odours or vermin.
The application was refused by the LPA by notice dated 23 July 1999, on the grounds that:
"The proposal will be contrary to GP2 (I), (II), (IV) and policy W1 (I) of the approved Unitary Development Plan, particularly by reason of the smell which would be generated, the visual impact on the surrounding environment and to the detriment of pedestrian safety along the A629 through Denholme Village".
IWM appealed that decision. Mr Keith Durrant was appointed to hear the appeal. IWM was represented by Mr Barrett as they were before Silber J and before us. The claimant, through her action group, was represented (we were told) by a Planning Consultant Advocate. The LPA took very little part, only appearing in relation to the question as to what conditions should be imposed if the Inspector allowed the appeal, and on the question of costs. The LPA, although defendants to these proceedings, have not been represented either before Silber J or before us.
The hearing took place over 10 days. There was before the Inspector obviously the ES (and the subsumed ES) and the Report. By a Decision Letter dated 14 March 2001 the Inspector allowed the appeal granting permission subject to certain conditions.
The terms of the Decision Letter are critical to the points that arise on this appeal . The Inspector by paragraph 6 identified the main issues:-
"Given this site context, I have come to the view that the main issues in this appeal are whether:
filling the quarry with waste would harm the visual amenities of the Green Belt, having regard to the proximity of a Special Landscape Area to the west and to the setting of Park Farm, a Grade II listed building;
a continuation of quarry working and a phased restoration by landfill could be carried out without polluting the local environment and disrupting the lives of local residents to an unacceptable degree;
and, in the light of my conclusions on the above, whether:
the proposed development would be inappropriate in the Green Belt (and if so, whether there are any very special circumstances that would justify it);
there is a need for a new landfill site proximate to Bradford conurbation, involving additional stone extraction, to which appropriate weight should be given in balancing any benefits against harm (having regard to the Best Practical Environmental Option – the BPEO)."
Impact on the environment was therefore identified by the Inspector as the key issue.
He then, by paragraphs 13 to 18, dealt with the first issue "the visual impact of the development". It is sufficient to quote paragraphs 14 to 17.
"14. The phasing and restoration proposals have however been carefully designed, both to screen most of the workings during the extraction and landfill phases and to create a land form appropriate to the grazed and wooded moorland fringe slopes of the areas. Although local climatic conditions are not favourable to fast tree growth, a sensible choice of species and planting techniques can achieve a degree of impact that would help absorb the development into the landscape. In the two key locations of visual impact, I believe therefore that the character of the local landscape would be sustained and that the end result would be attractive. Those locations are firstly, along Whalley Lane and in views towards the southern site boundary from Denholme Edge, and secondly from the end of Hewenden Reservoir and its eastern slopes.
15. In the first case, although for relatively short periods the top of the landfill and/or noise attenuation mounds would be seen during the operational and surcharge phases, set against the broader sweep of the landscape...
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