Wiltshire Waste Alliance Ltd v Secretary of State for Communities and Local Government

JurisdictionEngland & Wales
JudgeSir Ross Cranston
Judgment Date10 May 2018
Neutral Citation[2018] EWHC 1110 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberClaim No: CO/3406/2017
Date10 May 2018

[2018] EWHC 1110 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Sir Ross Cranston

Claim No: CO/3406/2017

Between:
Wiltshire Waste Alliance Limited
Claimant
and
Secretary of State for Communities and Local Government
Defendant

and

(1) Hills Waste Solutions
(2) Wiltshire Council
Interested Parties

Gregory Jones QC and Alexander Greaves (instructed by James Smith of Planning Law Services Ltd) for the Claimant

Carine Patry (instructed by GLD) for the Defendant

Giles Cannock and Stephanie Hall (instructed by Paul Maile of Eversheds Sutherland) for the First Interested Party

Hearing date: 1–2 MAY 2018

Sir Ross Cranston

Introduction

1

This is a claim under section 288 of the Town and Country Planning Act 1990 challenging a decision of a planning inspector appointed by the Secretary of State for Communities and Local Government. Wiltshire Council (“the Council”) had refused planning permission to Hills Waste Solutions Limited for a proposal to retain and extend the Lower Compton materials recycling facility, near Calne, in Wiltshire. The application site for the new facility is located within a larger site, the Lower Compton site, where the company conducts a variety of waste management activities.

2

The inspector allowed the company's appeal and granted planning permission. Before him the company's case was that if the appeal was dismissed the appeal site would continue to operate pursuant to a series of admittedly complicated planning permissions which, in any event, would allow a significant number of uses. The appeal was advanced on the basis of these “no project” baselines being in existence. No other grounds were advanced for the grant of planning permission. Essentially the claimant's case against the appeal was that these baseline activities were not in fact permitted under the permissions operating. Further, for practical reasons what was permitted was limited and in any event could not take place.

3

The claimant brought this case in the Planning Court on 21 July 2017. Lang J granted permission on 14 September 2017 to proceed with six grounds of challenge to the inspector's substantive decision, and a further ground of challenge to his associated costs decision. The Secretary of State conceded that ground 2 was made out in that the inspector was in error concerning the planning consents for two areas at the Lower Compton site, and that consequently the grant of planning permission should be quashed. The claimant had applied for summary judgment in respect of that ground. In its defence to the section 288 case, Hills Waste contested the claim in full, including ground 2.

4

The case was to be heard November last, but as a result of counsel's illness it was adjourned. It has taken some time to find a convenient date for all parties. This is unfortunate since planning cases generally have an urgency about them. The Secretary of State appeared at the hearing before me but withdrew during the first day when the challenge to the associated costs decision was compromised. The Council has not been involved in the case and did not appear at the hearing. In the light of R (on the application of Shirley) v Secretary of State for Communities and Local Government [2017] EWHC 2306 (Admin); [2018] JPL 298 the claimant did not pursue ground 6 on air quality before me, but reserved the issue should the case go the Court of Appeal.

Background

5

Prior to the inspector's inquiry, the claimant had been an unincorporated body of local residents and parish councillors. It was incorporated shortly before this claim was brought. The interested party, Hills Waste Solutions Limited (“Hills Waste”), is a family-owned waste management company and a subsidiary of The Hills Group Limited, a well-established privately owned company. It owns and operates the facility and the Lower Compton site. Hills Waste has had a household waste collection contract within Wiltshire for a number of years. A new contract was to commence in August 2017 but has now been revised to commence in August 2018. It requires Hills Waste to be capable of collecting and sorting co-mingled recycling, in other words recycling which has not been pre-sorted by householders into glass, plastic, paper and so on.

6

The existing materials recycling facility was granted planning permission in 1997 under reference N962022. The permission stated that the proposed development was for environmental improvements “and the provision of a materials recycling facility”. Condition 4 to the permission was that the use should be discontinued on or before 31 December 2016 and the building removed and land restored. The floor area of the existing facility is some 1,980 square metres. The inspector records that it is a green-clad, pitched-roofed building, 41m wide and rising to around 8.5 metres at the eaves. Immediately north of it there is an open area devoted to composting and other types of materials handling, including skip waste.

7

The existing facility is situated within the Lower Compton site, which is of some 4.8 hectares located about one kilometre to the east of Calne. It is about the same distance north of the A4, which passes through Calne. The site is just north of the residential area of Lower Compton, where the site access road joins the public highway. Compton Bassett is about 1.6 kilometres to the north east. Within the eastern boundary of the application site is a grassed screen bund, beyond which is grazing land. Beyond that there is a C class rural road running along the western border of the North Wessex Downs Area of Outstanding Natural Beauty.

8

On the Lower Compton site, on lands extending north and west of the application site, is a household recycling centre and several mineral and waste landfill sites. For the purposes of the inspector's inquiry the Lower Compton site was divided into different areas, representing to an extent their planning status. The planning status of the different areas was not straightforward, but with some effort the claimant was able to clarify important matters to the benefit of all sides.

9

There are three areas within the site with permanent planning permission. The first is a household recycling centre. Then there are two overlapping areas within, and to the north of, the facility which, at the inspector's inquiry, were known as areas F and G. The inspector stated that the main controversy concerned the land use and planning status of these two areas. Area F is for the management of green waste, area G for commercial and industrial waste.

10

Area F is operated under two permissions, the original permission and a later variation pursuant to section 73 of the Town and Country Planning Act 1990 (“the 1990 Act”). The schedule to the original permission, under Ref N012802, stated as a condition that the development should be carried out in accordance with the details set out in the planning application. Annex 2 to the planning application estimated a maximum capacity for composting of green waste of 32,000 tonnes per annum (“tpa”). The subsequent section 73 permission, under Ref N/09/01498/WCM, varied the operating hours of the development.

11

Area G is also operated under an original permission with a subsequent variation. The permission under reference N033304 stated at paragraph 1:

“The Local Planning Authority HEREBY GRANT PLANNING PERMISSION subject to the scheduled conditions (if any) for the development proposed by the applicant in the application, which is hereby expressly incorporated herewith and of which brief details are, by way of identification only, set out in the Schedule (see overleaf).”

12

The schedule to the permission contained brief details of the development: “Relocation of existing Recycling and Recovery Facility and continued permitted use as a Composting Facility.” There is no reference to the planning application in the conditions, but the application is stamped: “Certified as a document incorporated into the decision made on 03 February 2004…” In the part of the application form headed “Waste Related Development”, the first question at paragraph A2.7 asked: “What materials in what quantities (tonnes per year) will be imported to the application site?” The answer stated: “Less than 25,000 tonnes per year of non-hazardous waste – inert, commercial and industrial wastes”. The second question at paragraph A2.8 asked: “What materials in what quantities (tonnes per year) will be recovered at the application site?” The answer stated: “Up to 80% of the waste imported will be recovered — 20,000 tonnes per year.” Under reference N0607019, there was a section 73 permission to vary the operating hours.

13

There are larger areas, called D and E, to the north and west of areas F and G. Planning permission for area D, under reference N/09/01497/WCM, was for an extension to a sand quarry and for landfilling with waste. Conditions 2 and 4 stated that sand extraction should cease in May 2018, and the tipping and deposit of waste material and restoration operations should cease in May 2022. Condition 4 also stated that the working, restoration and aftercare of the site should be carried out only in accordance with specified drawings. Condition 21 required the approval of a landscaping scheme by the planning authority, to include arrangements for subsequent maintenance. Any tree or shrub which died within five years of being planted was to be replaced to the authority's satisfaction. Condition 22 stated that on completion of the importation of landfill, “all machinery, plant, buildings, structures and any other site facility not essential for restoration/aftercare or for continuing landfill gas/leachate monitoring and control shall be removed or demolished and removed from the site”. Condition 23 provided: “All internal haul roads shall be removed when no...

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