UBB Waste Essex Ltd v Essex County Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lieven DBE,Mrs Justice Lieven |
| Judgment Date | 18 July 2019 |
| Neutral Citation | [2019] EWHC 1924 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1191/2019 |
| Date | 18 July 2019 |
[2019] EWHC 1924 (Admin)
Mrs Justice Lieven DBE
Case No: CO/1191/2019
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
James Strachan QC and Celina Colquhoun (instructed by Norton Rose Fulbright LLP and Pinsent Masons LLP) for the Claimant
Andrew Sharland QC and Richard Moules (instructed by Essex County Council) for the Defendant
Hearing dates: 9 th July 2019 – 10 th July 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This case concerns the lawfulness of the grant by the Defendant of a “CLOPUD” (a certificate of lawfulness for a proposed use or development), under s.192 of the Town and Country Planning Act 1990. The Claimant seeks to challenge the said grant by the Defendant, acting as the Waste Planning Authority (WPA). This case is replete with acronyms, so a glossary is appended at the end of the judgment.
The application was considered by Mr Justice Holgate on the papers and he ordered a “rolled up” hearing. The Defendant is taking proceedings against the Claimant in the Technology and Construction Court concerning the waste contract between the parties dated 31 March 2012. That case is part heard before Mr Justice Pepperall and the order of Mr Justice Holgate suggests that Pepperall J may be assisted by a judgment of the Planning Court on the case before me.
The CLOPUD, dated 12 February 2019, certifies the lawfulness of;
“ the importation and treatment at Tovi Eco Park MBT Facility of up to 30,000 tonnes per annum of source-segregated green garden waste from Essex Household Waste Recycling Centres, as described in the application form dated 7 December 2018…”
The critical phrase in the certificate is “source segregated green garden waste”, which is referred to elsewhere as SSGGW. The case only concerns SSGGW from Household Waste Recycling Centres (“HWRC”) and not green garden waste which has been separated by householders and collected from the kerbside. In the interests of reducing the acronyms I will simply refer to the waste in issue as SSGGW.
The site in question is the Tovi Eco Park, at Courtauld Road, Basildon Essex. The Claimant is the developer and operator of a waste treatment facility at the site, (“the facility”) subject to the grant of planning permission dated 6 December 2012 (“the permission”). The Claimant has constructed the facility pursuant to a contract dated 31 March 2012 entered into with the Defendant in its capacity of Waste Disposal Authority (“WDA”). The Claimant holds a sub-lease of the land, pursuant to a lease dated 29 May 2012.
Pursuant to the various statutory regimes, the Defendant is the Waste Planning Authority (WPA) and the Waste Disposal Authority (WDA). As WPA it granted the 2012 permission and the CLOPUD, but as WDA it entered into the contract with the Claimant and was the applicant for the CLOPUD. Although the Defendant has different statutory and land holding roles in respect of the site and its operations, there is one legal entity, Essex County Council.
Although a number of grounds were pleaded, the case comes down to one issue, did the Defendant err in law in its grant of the CLOPUD, by reason of misinterpreting the terms of the 2012 planning permission. The matter turns on whether SSGGW from HWRCs is permitted under the planning permission to be processed at the facility. This in turn depends on whether SSGGW from HWRCs is excluded from the site by the terms of the permission. The Defendant's case is that although garden waste directly from householders would not be permitted, because it is not “residual” household waste, the same is not true for green waste coming from a Household Waste Recycling Centre (HWRC) because there is no restriction within the permission for that to be “residual” waste.
It is therefore necessary to consider in detail the precise scope of the planning permission, including what is set out in the documents incorporated by reference into the permission.
The Background
The Planning Permission
The 2012 Planning Permission is for:
“Enclosed facility for the Mechanical and Biological Treatment (MBT) of municipal solid waste and commercial and industrial waste, including waste water treatment infrastructure; biofilter and air filtration infrastructure; a visitor, education and office facility; parking area; surface water management system; hardstanding's; internal roads; new access and junction arrangements onto Courtauld Road; earthworks; landscaping, fencing and gates; weighbridge complex; lighting and ancillary development.”
The Planning Permission is subject to 32 conditions. Conditions 2, 3 and 21 are the most relevant to this application for judicial review.
Condition 2 of the Planning Permission states:
“2. The development hereby permitted shall be carried out in accordance with the details of the application dated 23 March 2012 and covering letter dated 23 March 2012, together with:
• …
• Environmental Statement dated March 2012 and appendices 1.1–1.9, 5.2, 5.2, 6.1, 7.1, 9.1 and 9.2,
• Environmental Statement Non-Technical Summary dated March 2012,
• Environmental Statement Errata dated April 2012,
• letter from Alistair Hoyle dated 10 May 2012 and enclosed Environmental Statement Addendum to Flood Risk Statement dated May 2012 and drawing number 5093106/C/P/200,
• Planning Statement and appendices 1–8,
• … 1
And in accordance with the contents of the Design and Access Statement dated March 2012.
and in accordance with any non-material amendment(s) as may be subsequently approved in writing by the Waste Planning Authority, except as varied by the following conditions:-
Reason: For the avoidance of doubt as to the nature of the development hereby permitted, to ensure development is carried out in accordance with the approved application details, to ensure that the development is carried out with the
minimum harm to the 18 local environment and in accordance with East of England Plan Policies ENV7, WM1, WM2, WM3, WM8, SS1 and ENV1, Basildon District Local Plan Policies C15, E10 and E24 and Waste Local Plan Policies W3A, W3C, W4A, W4B, W4C, W7A, W8A, W10A, W10B, W10E and W10F”.
Condition 3 of the Planning Permission states:
“3 No waste importation shall take place until a detailed scheme, for the restriction of the importation of waste arising from outside the administrative boundaries of Essex and Southend-on-Sea, has been as submitted to and approved in writing by the Waste Planning Authority. The scheme shall make clear how sources of waste coming to the site shall be monitored and managed in order to control the importation of such material from outside of the administrative boundaries of Essex and Southend-on-Sea…
Reason: In the interests of the environment by assisting Essex and Southend-on-Sea to become self-sufficient for managing its own waste ensuring that the waste is transported proximate to the site thereby minimising transportation distances, reducing pollution and minimising the impact upon the local environment and amenity and to comply with East of England Plan Policy WM3 and Waste Local Plan W8A.”
Condition 21 of the Planning Permission states:
“21. No waste other than 416,955t tpa of those waste materials defined in the application details shall enter the site. Records of waste type and tonnage shall be kept by the operator and made available to the Waste Planning Authority upon written request.
Reason: waste material outside of the aforementioned would raise additional environmental concerns, which would need to be considered afresh and to comply with East of England Policy WM1, Basildon District Plan Policy C15 and Waste Local Plan Policies W3A, W3C, W8A and W10E” [emphasis added]
Condition 2 therefore limits the use of the site to the details set out in the documents listed which include the Planning Statement (PS); the Environmental Statement (ES); the Environmental Non-Technical Statement (NTS). Each of the parties rely on various parts of these documents, which I will refer to below.
Condition 3 requires the developer to submit a detailed scheme for the restriction of the importation of waste from outside the named authorities and for that scheme to be agreed before any waste could be brought on to the site. The scheme which was approved dealt not only with how the waste was to be monitored and managed but also its anticipated composition;
(a) Residual household waste — 78%
(b) Street sweepings — 2%
(c) Bulky waste — 0.5%
(d) Trade waste — 5.5%
(e) Household Waste Recycling Centre (“ HWRC”) Residual Waste — 14%
Given the terms of condition 2 both parties accept that the PS, ES and NTS fall to be considered when interpreting the planning permission. The Claimant in particular relies on a large series of references within these documents, and I will only set out below what I consider to be the most important ones. The Defendant accepts that within all three documents there are very many references to “residual waste”, and it is therefore unnecessary to set all of these out. The Defendant's position is that those references do not limit HWRC waste to being “residual waste”.
The PS at section 1.2 [1/13/493] under the heading “The proposal” states that the
“proposal… will satisfy the residual municipal waste management needs of Essex County Council and Southend on Sea Borough Council … The Facility is capable of treating up to 416, 955 tonnes per annum (tpa) of residual waste, but with a smaller proportion of locally derived commercial and industrial (C&I) (third party) waste … The technology consists of: Pre-processing – sorting...
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