Veolia ES (UK) Ltd v Secretary of State for Communities and Local Government Hertfordshire County Council (Interested Party 1) Welwyn Hatfield Borough Council (Interested Party 2) New Barnfield Action Fund (Interested Party 3) Gascoyne Cecil Estates (Interested Party 4)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 22 January 2015 |
| Neutral Citation | [2015] EWHC 91 (Admin) |
| Date | 22 January 2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3828/2014 |
[2015] EWHC 91 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Holgate
Case No: CO/3828/2014
Rhodri Price Lewis QC (instructed by Veolia) for the Claimant
Zoe Leventhal (instructed by Treasury Solicitors) for the Defendant
NO REPRESENTATION for Interested Party 1
Wayne Beglan for (instructed by Council Solicitors) Interested Party 2
NO REPRESENTATION for Interested Parties 3 and 4
Hearing dates: 16 th and 17 th December 2014
Veolia ES (UK) Limited ("Veolia") applies under section 288 of the Town and Country Planning Act 1990 ("TCPA 1990") to quash the decision of the Secretary of State for Communities and Local Government dated 7 July 2014 in which he refused Veolia's application for planning permission. The proposal was for the demolition of existing buildings and the construction and operation of a Recycling and Energy Recovery Facility ("RERF") to treat municipal, commercial and industrial wastes, together with ancillary infrastructure landscaping, habitat creation, drainage and highway improvements at New Barnfield, Hatfield, Hertfordshire ("the site").
The application was made on 16 November 2011 to the waste planning authority and First Interested Party, Hertfordshire County Council ("HCC"). On 24 October 2012 HCC resolved to grant conditional planning permission subject to the execution of a section 106 obligation and the referral of the application to the Secretary of State as a departure application.
On 28 January 2013 the Secretary of State directed that the application be referred to him pursuant to section 77 of TCPA 1990, instead of being determined by HCC. The called-in application was the subject of a public inquiry held by an Inspector appointed by the Secretary of State which took place over a number of days between 10 September and 25 October 2013.
HCC continued to support the proposal at the inquiry. The site lies within the administrative area of the local planning authority and Second Interested Party, Welwyn Hatfield Borough Council ("WHBC"). WHBC, together with the Third and Fourth Interested Parties, appeared at the inquiry to oppose the scheme strongly. Veolia's project was seen as being very controversial. The site lies in the green belt and it was common ground that the proposal constituted "inappropriate development" for which planning permission could not be granted unless very special circumstances were demonstrated clearly outweighing any harm to the Green Belt and other harm (para. 723 of the Inspector's report). However, I must emphasise at the outset that the Court is not concerned with the merits or otherwise of the proposal. The Court is only concerned with issues of law.
On 19 February 2014 the Inspector produced a lengthy, detailed report to the Secretary of State.
In a letter dated 1 May 2014 the Secretary of State invited representations on certain matters which had arisen after the close of the inquiry and which, consequently, had not been dealt with in the Inspector's report. The letter was addressed to a number of participants at the inquiry including Veolia, HCC and WHBC. The parties were given until 19 May 2014 to make their representations and a further five working days were allowed for any further representations on the first round of comments circulated between the parties. The Secretary of State stated that he intended to issue his decision on the application on or before 26 June 2014.
Representations were made to the Secretary of State by Veolia, HCC and WHBC and the decision letter in fact was issued a few days later on 7 July 2014.
Much of the argument in this Court focused on passages in the Inspector's report and the Secretary of State's decision letter. For convenience I will use the prefixes IR and DL when referring to particular paragraphs in those two documents.
The development plan
For the purposes of this challenge it is necessary to set out the evolution of the statutory development plan, material parts of which proceeded in parallel with the planning application.
At the date of the Inspector's report the statutory development plan comprised the "saved policies" of the Welwyn Hatfield District Plan adopted by WHBC in 2005 ("WHDP") and the Hertfordshire Waste Core Strategy and Development Management Policies Development Plan Document ("WCS") (see IR 25). The WCS was adopted by HCC in November 2012.
Welwyn Hatfield District Plan
IR 41 stated that the key WHDP policy for the report was Policy RA6, which identified the site as a "major developed site" in the Green Belt. Policy RA6 provided:
"Complete or partial redevelopment will be permitted within the boundaries of the Major Developed Sites, as shown on Inset Maps 4 to 8, subject to the following criteria:
i. Proposals should have no greater impact than the existing development on the openness of the Green Belt and the purposes of land including land within it, and wherever possible should have less impact;
ii. ……..;
iii. Proposals should not occupy a greater footprint of the site than the existing buildings, excluding temporary buildings, open spaces with direct external access and areas of hardstanding, unless this would achieve a height reduction to the benefit of visual amenity;
iv. Buildings should not exceed the height of the existing buildings;
v. The proposal should be brought forward in the context of a master planning brief for the site as defined in paragraph 15.15;
vi. ……….; and
vii. ………."
To put policy RA6 into context, paragraphs 87 and 88 of the National Panning Policy Framework ("NPPF") set out the standard principles for the control of development in the Green Belt:
"87. As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.
88. When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. 'Very special circumstances' will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations."
Paragraph 89 of the NPPF provides that:
"A local planning authority should regard the construction of new buildings as inappropriate in Green Belt. Exceptions to this are:
… the partial or complete redevelopment of previously developed sites (brownfield land), whether redundant or in continuing use (excluding temporary buildings), which would not have a greater impact on the openness of the Green Belt and the purpose of including land within it from the existing development."
Thus, RA6 and paragraph 89 operate so that if the new building would have a greater effect on the openness of the Green Belt or its purposes than the existing development, then (a) it cannot be treated as "appropriate development" in the Green Belt and (b) it should not be permitted unless very special circumstances are demonstrated in support of the proposal which clearly outweigh any harm to the Green Belt and other harm.
Hertfordshire Waste Core Strategy
Strategic objective SO1 of the WCS promotes the provision of facilities to drive waste management practices up the waste hierarchy and reduce waste volumes to be disposed to landfill (IR 27). The hierarchy is shown diagrammatically in paragraph 4.6 and Figure 1 of the WCS; starting at the top with the prevention of waste creation, then reuse of waste, followed by recycling, next other recovery (which would include incineration of waste in order to produce energy) and lastly disposal to landfill.
Policy 1 of the WCS states that provision be made for a network of waste management sites that drive practices up the waste hierarchy and are sufficient to provide for (inter alia) existing and future waste arisings within Hertfordshire (IR 29). Policy 1 identified broad areas of search for facilities for Local Authority Collected Waste ("LACW"). The site is located within one of those areas of search (IR 1045).
Policy 6 of the WCS states that applications for new waste facilities in the Green Belt are required to demonstrate very special circumstances sufficient to outweigh harm to the Green Belt and any other harm identified. It also listed a number of relevant considerations, including the need to find locations as close as practicable to the source of the waste and the issue of whether any alternative sites outside the Green Belt would be suitable for meeting the need for the development proposed (IR 32).
It was common ground at the inquiry that because of its scale and effect on the openness and purposes of the Green Belt, the proposal had to be treated as "inappropriate development" and justified under the very special circumstances test (IR 116, 296 and 723).
The draft Waste Site Allocations Local Plan
As waste planning authority, HCC prepared the "Waste Site Allocations 2011–2026 Local Plan" (referred to by the Inspector and Secretary of State as "WSALLD") for the purpose of allocating sites for waste management facilities in the County in accordance with the strategy and principles contained in the WCS (paras 1.5 to 1.7).
On 24 June 2013,...
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