William Bosson v Derbyshire County Council Sita UK and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kenneth Parker |
| Judgment Date | 12 October 2011 |
| Neutral Citation | [2011] EWHC 2566 (Admin) |
| Docket Number | Case No: CO/5864/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 October 2011 |
[2011] EWHC 2566 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Manchester Civil Justice Centre
Manchester M60 9DJ
Mr Justice Kenneth Parker
Case No: CO/5864/2010
and
and
James Pereira (instructed by Richard Buxton) for the Claimant
Jeremy Cahill, QC and Satnam Choongh (instructed by Derbyshire County Council) for the Defendant
Hearing date: 28 July 2011
In this application for judicial review Mr William Bosson ("the Claimant") challenges the decision by Derbyshire County Council ("the Defendant") to grant planning permission for a composting facility on the site of a former colliery. The site lies in the open countryside and was and remains subject to restoration conditions imposed by the mining planning permission that have not been fully performed.
The Claimant is a long term resident of the nearby Arkwright Town. For many years he has been affected by the nearby mining operations. He expected, and looked forward to, the timely and complete restoration of the colliery land and the improvements to amenity and to the environment that such restoration would bring about. He feels aggrieved both by the manner in which the Defendant approached the failure to restore the land and by its planning decision regarding the appropriateness of the location of the composting facility. Permission for this claim was refused by Blake J on 9 September 2010 but was granted by Collins J on 4 March 2011 following a contested oral permission hearing.
The Facts
The planning permission under challenge was granted on 22 February 2010 for the construction and operation of an in-vessel composting ("IVC") facility near Arkwright Town in Derbyshire. The permission was subject to conditions. It was accompanied by a summary of the reasons for its grant. The site of the proposed development is part of a large area of former colliery land which has a long history of mining development subject to various planning permissions. The current planning permission governing the colliery land required its restoration by 31 October 2004. The restoration condition was supported by a planning obligation dated 17 December 2007 and made pursuant to s.106 of the Town and Country Planning Act 1990. The restoration scheme involved a range of environmental enhancements including the provision of woodland and agricultural land. The restoration scheme was intended to ensure appropriate restoration in the interests of the local environment, landscape and the amenities of the local community.
However, the landowner, UK Coal, failed to complete the restoration of the site. The open cast site extended to some 400 hectares. By the time of the relevant planning application 50 hectares of this area had not been restored. The application site for the IVC covers an area of 10.3 hectares. The remaining 40 hectares of the overall area have yet to be restored and will in any event be restored according to the restoration condition. Within the relevant application site the built development will cover 1.98 hectare. The remaining 8 hectares or so will be landscaped consistently with the restoration scheme for the wider former open cast coal workings site.
The planning permission was granted by a decision of the Defendant's Planning Committee in accordance with the recommendation in a report, dated 15 February 2010, from the Strategic Director, Environmental Services. The introductory summary of the report stated as follows:
"The proposal is for an in-vessel composting plant on the part of the former Arkwright Open cast site off Deepsick Lane, near Arkwright Town. It would cater for approximately 40,000 tonnes per year of biodegradable municipal waste from the local authority areas of Bolsover, Chesterfield and North East Derbyshire. The main issues centre on the location of the site. The location is at an appropriate distance from most potential sensitive receptors but is in the countryside where there is normally a presumption against new built development unless it is essential in that location. The need to locate such facilities where they would not cause undue disturbance from noise, odour and bioaerosols is a significant factor in this respect. Subject to the recommended conditions, I am satisfied that the proposal would not be unduly detrimental to the amenity of the area and it is recommended for approval."
Under Planning Considerations the report stated as follows:
"The proposal has to be considered against the development plan and in regard to this case the relevant policies are contained in the East Midlands Regional Plan (EMRP) (2009), the Derby and Derbyshire Waste Local Plan (DDWLP) (2005), the North East Derbyshire Local Plan (NEDLP) and the Bolsover District Local Plan. European and National Government legislation and guidance on waste management are also relevant material considerations.
In the EMRP the most relevant policy consideration is provided by Policy 38 which sets out regional priorities for waste management and states that: "All relevant public and private organisations, including manufacturing, importing and packaging firms, should work together to implement the Regional Waste Strategy and promote policies and proposals that will result in zero growth in all forms of controlled waste by 2016 and waste being treated higher up in the 'waste hierarchy' set out in the National Waste Strategy (Waste Strategy for England 2007)". Policy 38 makes specific reference to the Northern Sub-Area of the East Midlands which includes the north-eastern part of Derbyshire. It states: "In the Northern Sub-Area, the broad pattern of facilities should combine a centralised strategy for larger facilities on previously-developed land (including former colliery land)". "(pages 12–13)
The report also referred to a site search exercise stating so far as is relevant:
"As the waste planning authority for Derbyshire, the County Council, in association with Derby City Council, has been progressing the Waste Development Framework to cover both Derbyshire and Derby City. An important element of this framework will be a Waste Sites Development Plan Document (DPD). A draft DPD was published and consulted on by the Councils, which aimed to identify a wide range of sites throughout Derby and Derbyshire capable of accommodating future waste management facilities, including sites for IVCs. Work on the DPD has since been suspended pending the progression of a Waste Core Strategy. By that stage, however, the joint City/County DPD programme had included an extensive and detailed site search exercise…
Appendix 1–2 of the Planning Application Document reports upon the findings of the site search process carried out by the Councils as part of the DPD work, with specific reference to the part related to the search for an IVC for the north- east of the County.
The Document provides an appropriate overview of the Waste Sites DPD and correctly sets out the methodology adopted by the County and City Councils in the DPD sites search exercise. It describes the stages in the search process during the last four years. With regard to the IVC site identification, it cites the four stages undertaken by the City/County: (1) the definition of the study area, (2) refinement of the list of site, (3) site assessment of short-listed sites (4) the review of findings. It reiterates the basic search criteria that were established such as site size (minimum 2 hectares) and locational criteria including a minimum buffer zone (100 metres from residential property) and other more detailed site specific criteria (access/highway arrangements/environmental constraints). The Document correctly lists the 17 identified sites in the north- east catchment area which were considered as being suitable in principle. The Document then correctly identifies how this list was further assessed and reduced to 8 potential sites and provides a brief description and analysis of those sites.
The final element of the search exercise was to take the list of sites and the detailed assessments to determine which may be suitable or preferred for the specific development of a 40,000 tonnes per annum IVC facility. The exercise concluded with two potential sites: a site at Whitwell Quarry and the current application site." (pages 16–17)
The report referred to the environmental statement in the following terms:
"I am satisfied that the Environmental Statement also provides a thorough and robust analysis of potential sites for the proposed development, taking account of relevant locational criteria. The applicant's choice of the Arkwright site for the proposed development accords with the DPD search exercise findings. This is not to say that it would score higher than all other alternatives against all the criteria nor that there are no other sites that could potentially be suitable for the municipal compost plant facility. I am satisfied, however, that the evidence available from the search exercise and the analysis under the Environmental Statement demonstrates that it is appropriate to consider this to be a suitable candidate site. However, the decision to be made on this application also requires consideration of a wide set of further planning considerations with regard to the proposal." (page 17)
The report then goes on to consider the relevant planning matters, such as the need for the proposed development, alternatives, and planning policy context and analysis. Under the last heading there appeared the following statement:
"One...
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