England and Wales High Court (Administrative Court) Decisions

1a. The defendant had not lawfully delegated powers to its officers for the purpose of determining whether an Environmental Impact Statement (EIA) was required before planning permission could lawfully be granted. Therefore the screening opinion was ultra vires and void.

b. In any event the determination of the planning application was erroneous in law.

2. There is a gap in the statutory planning and pollution legislation into which the claimant’s objection fell which was to the effect that substances contained in the liquid from the discharge from the plant would permeate the walls of the discharge pipe close to her property thus exposing it, or her, to the harmful effects of the discharges.

3. The report to the planning committee by the planning officer was unfair in that it had not reported on the claimant’s objection.

4. The claimant’s rights under the provisions of Articles 1 and 8 of the European Convention on Human Rights (ECHR) had been infringed by the planning process which unfairly, and in the absence of appropriate safeguards, determined factual disputes without providing her with the opportunity to contest those matters. This was in breach of the provisions of Article 6.1 of the ECHR.

5. In breach of Regulations 2(1) and 4(1) of the Waste Management Licensing Regulations 1994, the defendant failed in its regulatory duty to determine the planning application without ensuring that waste would be disposed of without endangering human health or with methods which would not harm the environment.

2000

24 July - screening opinion obtained by planning authority that no EIA was required.

1 December – claimant raised the issue whether or not such was required.

5 December – claimant informed that it was not. It is to be noted that at no stage before the commencement of these proceedings has this decision been the subject of challenge.

13 December – resolution passed to grant conditional permission, the conditions to be finalised by the planning officer.

14 December – claimant aware of the resolution.

22 December – claimant notified that pipe would be located where shown in the documents accompanying the application.

2001

21 February - claimant aware of the need to move promptly.

5 April - proceedings commenced.

1. Claimant was not made aware that the fact that conditions were not finally settled did not prevent the grant of planning permission being an effective legal grant.

2. Claimant was misled into believing that conditional permission had not been granted by letter date 10 January from the defendant to her Assembly Member that the condition had not by then been finalised. It was not until 12 February that the claimant received undated copy of the decision notice which contained the conditions.

3. So, it was contended that time, so far as the claimant was concerned, started to run on 12 February which, if not within the period of 6 weeks was nevertheless prompt.

1. Time began to run once the defendant had resolved to grant planning permission, it does not matter that the precise conditions have not been settled by the date of the resolution; see paragraph 12 of the judgment in Robert and Sonia Burkett v. LB Hammersmith and Fulham transcript 13 December 2000 where the Court of Appeal said

In our view … the fact that an applicant who moves promptly to quash the resolution may be attacked for prematurity no doubt reflects the tactical opportunism of some respondents, but it does not answer the proposition that time began running when the resolution was passed. Nor does it require inevitability in the grant of planning permissions to compel an objector to move early.

2. Moreover, the claimant was informed by telephone on 14 December that the resolution had been passed. This was followed up by letter from the defendant to the claimant of 22 December stating that the siting of the sewer was approved in the location shown on the plans annexed to the planning application.

3. The letter of 10 January upon which the claimant relied was from the Chief Environmental Officer, and was written in ignorance of the fact that the decision notice had been issued.

4. The effects of delay on the interested party are significant and are described in the statement Griffiths 1 (27 April 2001) paragraphs 5 and 6. Furthermore, it is said that there are other non-financial consequences which are undesirable from an environmental point of view, such as continuing daily road movements by tanker from the landfill site to the sewage treatment works.

1. Although the time limit for bringing proceedings for judicial review is set at three months, it should be remembered that the statutory time limit for launching appeals under s. 288 of the Town and Country Planning Act 1990 is six weeks, an indicator for the assessment of promptitude in planning cases; see paragraph 20 of the judgment in the Burkett case, above.

2. The main ground of challenge is in relation to the defendant’s failure to require that an EIA be performed. The claimant raised this issue on 1 December and was informed of the defendant’s position, viz that none was required. At no time prior to the commencement of proceedings did the claimant seek to challenge this decision which she knew had been made on 24 July 2000.

It is plain, as will be seen, that a major issue raised by the claimant in these proceedings has been the absence of an EIA. This is a feature of which the claimant has been well aware since 1 December, but she did nothing effective before the commencement of proceedings and has provided no cogent reason why she did not. Moreover, at no time did the claimant invite the defendant to reconsider its decision in relation to the screening opinion, it would create considerable administrative inconvenience were the matter to be re-opened over a year after that decision had been made. It is also relevant to note at this stage that in Fernback v. LB Harrow [2001] EWHC Admin 278 paragraph 18 Richards J said

In circumstances where the council adopted an unchallenged negative screening opinion and was under no duty to reconsider it, I do not think that it is open to the claimants now to challenge the substance of the council’s view that the development was not an EIA development. … . (I)t cannot … be said that the only reasonable conclusion open to the council was that the development was likely to have “significant effects on the environment” for the purposes of the Regulation.

See later also, when the Regulations are considered in more detail.

The Substantive Case

The development would involve the treatment of leachate from an existing landfill site and would not give rise to significant environmental effects.

In support of the claimant’s submissions on this point, the court was referred to R v. St Edmundsbury Borough Council, ex p Walton [1999] JPL 805 where at 808 Hooper J said:

There can be no doubt that the decision whether or not to require an applicant to submit an environmental statement was an important one. That decisions having been made and not being “overturned” by the Secretary of State , the more rigorous procedures of the assessment of environmental effects of the (1999) Regulations come into play. If the local authority wishes to delegate the regulation 9 decision to an officer, it must formally do so.

It is as well to note at this stage that it was not the case in Walton that there had been any (emphasis added) delegation. Contrast the position here, in which there had been formal delegation to the Director of Planning and the issue is whether an officer working under his supervision was also a lawful delegatee of the Council.

(T)he multitude of tasks which were entrusted by standing orders to the County Secretary and solicitor was such that it was inconceivable that the council intended that all those functions should be attended to by one (person), or that he himself should make the relevant value judgments himself in respect of each of them.

I find myself in respectful agreement with the obvious good sense of Schieman J’s observations. It is one thing, as in Walton for there to have been no delegation at all and for the decision taken without it to have been quashed. It is otherwise for there to have been formal delegation to the head of a department and for the actual decision to have been taken by a person working in that department who was, informally, the delagatee of and answerable to that head. It is then becomes a matter for the court to construe whether or not the intended scope of the delegation by the council standing orders extended to what must be an every day and necessary occurrence if a department is to be able to function efficiently. It plainly was.

development which is either –

(a) Schedule 1 development; or

(b) Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location.

What is meant by these somewhat elliptical expressions will shortly be revealed to the intrepid. Thus, “Schedule 1 development”

Means development, other than an exempt development, of a description mentioned in Schedule 1;

And “Schedule 2 development”

Means development, other than exempt development, of a description mentioned in Column 1 of the table in Schedule 2 where -

(a) any part of that development is to be carried out in a sensitive area; or

(b) any applicable threshold or criterion in the corresponding part of column 2 of that table is respectively exceeded or met in relation to that development.

It will be necessary to visit columns 1 and 2 in due course. But first, it is important to note that Regulation 3, which applies to every EIA application received by a planning authority, forbids the grant of planning permission unless the authority has first taken into account the environmental information. It also requires the authority to state in its decision that it has complied with the Regulation. Whether or not development is EIA development is determined by the occurrence of an event mentioned in paragraph (2) of Regulation 4 which provides

The events referred to in paragraph (1) are –

(a) the submissions by the applicant … in relation to that development of a statement referred to be the applicant … as an environmental statement for the purposes of theses Regulations; or

(b) the adoption by the relevant planning authority of a screening opinion to the effect that the development is EIA development.

Regulation 5 enables an intending developer to request the planning authority to adopt a screening opinion which, if this happens, obliges the authority to adopt it within three weeks of the making of the request. However, the point was made by the interested party that the defendant had correctly identified the nature of the proposed development as being a ‘waste water treatment plant’ in which the ‘area of development did not exceed 1000 square metres’ within category 11 of Schedule 2 to the Regulations. It was, however, the case for the claimant that the proposed development had not been properly categorised by the defendant, as above, but was in truth one within paragraph 9 of the 1st Schedule to the Regulations since it was a leachate treatment plant which properly understood means that it was a ‘waste disposal plant for the chemical treatment of hazardous waste’. Paragraph 9 provides that

The carrying out of development to provide

9. Waste disposal installations for the incineration, chemical treatment (as defined in Annex IIA to council directive 75/442/EEC under heading D9), or landfill of hazardous waste (as elsewhere defined by Council Directive).

1. The interested party accepts that the site area was 0.5 hectares in extent and therefore the provisions of the second column in Schedule 2 paragraph 9 do not save them;

2. The interested party accepted that a ‘water treatment facility’ was in the nature of a sewage treatment works and that the proposed plan was “an installation for the treatment of waste”;

3. From various documents which have emanated from the interested party [bundle pp 182,151,152,155 and 128] the interested party clearly recognised that leachate was Directive waste which was subject to physico-chemical treatment by it;

4. Hazardous waste was accepted onto the site. This has the legal consequence of making the Hazardous Waste Directive apply to it.

15.2.1 The planning system should guide development to lessen the risk from natural or man made hazards, including the risk from contaminated land.

16.1 The planning system should determine whether a development is an acceptable use of land rather than seeking to control the processes or substances used in any particular development. Planning authorities should operate on the basis that the relevant control regimes will be properly applied on the basis that the relevant control regions will be properly applied and enforced by other agencies. \planning authorities should not seek to control through planning measures, matters that are the proper concern of the pollution control authority. Rather the planning interest should focus on any potential for pollution, but only to the extent that it may affect the current and future uses of the land.

16.3 The potential for pollution affecting the use of land may be a material consideration in deciding whether to grant planning permission. Material considerations are likely to include:

• Location, taking into account such considerations as the reasons for selecting the site itself;
• Impact on amenity
• The risk and impact of potential pollution from the development insofar as this might affect on the use of other land

In his report to the defendant’s planning committee, the planning officer stated as follows in paragraphs:

1. The landfill site will continue to generate leachate long after waste tipping has ceased and the site restored. …. The operator estimates that leachate generation in volumes requiring disposal will continue for a further 30 years.

3. The contamination level of the cleaned leachate is approximately one tenth of the untreated leachate.

5. The (claimant) does not object to the plan itself, but objects to the siting of the sewer behind (her house) for the following reasons:

(a) Plastic pies do not last for ever and become damaged, due to chemicals within the leachate, and with age and from heavy vehicles.

(b) The pipe would run through land which consists of an established parking area which has been used by her family for over 25 years.

A number of letters of objection have been received from (the claimant) … indicating, inter alia that the Council should engage independent consultants, and referring to published material on alternatives to landfill waste disposal. All of the objector’s letters are available … for inspection … . They do however raise a considerable number of issues which are not relevant to the present application but relate to such matters as pollution control, waste disposal licence conditions and previous planning decisions.

13. … . There is no reason to believe that the risk of leakage from the plant would be any greater than from any other sewer.

In so reporting to the committee, the planning officer, it was said, “was unfair and significantly mislead members”. Furthermore, the author of the report accepted the possibility that leachate might enter the land and as such that became a planning consideration which had land use consequences. In so reporting, the planning officer, it was again said, made this matter one for the proper interest of the grant of planning control. Correspondence between the Environment Agency for Wales and the defendant was relied upon with a view to showing that the above considerations did indeed indicate some tension between the requirements of the Agency on the one hand and those of the planning authority on the other. Examination of the letters dated 16 and 22 November 2000, suggest that this may be the case, but the defendant made clear that it did not consider that the planning system should be used as a vehicle for the resolution of licence or pollution control matters. The submission was that whereas the Environment Agency had interested itself in the capacity of the leachate plant to process a given quantity of leachate, neither the Agency (wearing its pollution control hat) nor the defendant considered the possibility of permeation of leachate from the pipe connecting to the sewer as being within the remit of either. This is exemplified by passages in the statement of Ceri Thomas where at paragraph 3.14 he said

I also discussed the matters raised with … the Agency (which) expressed the view that the proposed pipe was to be constructed to a specification widely used in industrial installations, and that the Agency have statutory powers to deal with any breakage or permeation.

3.6.1 The planning system normally should not be used to secure objectives achievable under other legislation. The principle of non-duplication should be maintained even though the powers and duties resulting from other legislation may also be the concern of local authorities.

3.6.2 However, provided a consideration is material in planning terms it must be taken into account in dealing with a planning application notwithstanding that other machinery may exist for its regulation. …

3.6.3 Local planning authorities should look to the relevant agencies and/or utility companies for detailed guidance or advice where this is considered appropriate.

Reference was again made to the letter from the Environment Agency of 2 January 2001 and the statement that piped leachate was primarily a matter for the planning authority and Welsh Water. The submission was that before it would have been appropriate for the defendant to have imposed a condition on the interested party, a number of pre-requisites would have to be met; see Circular 11/95 which summarises the approach of the courts on this issue as it has developed over a number of years. They may be summarised as necessity, relevance to planning, relevance to the development in question, enforceability, precision and reasonableness. In the present case, the simple fact was that it was for the interested party to monitor the condition of the proposed pipe to satisfy the water authority as to its condition. The Agency had powers to control the discharge of wastes under the provisions of the Water Resources Act, 1991 as well as to take proceedings against any person who permitted the entry into controlled (including ground) waters any “noxious, poisonous or polluting matter”. Finally, there was no distinction in principle between permeation due to deterioration of the pipe and mechanical damage which caused it to leak. There was no unfairness, therefore, in the report to the planning committee made by the planning officer. That he may not directly have reported all the claimant’s objections his reference to them in general, and the fact of their availability on file was an effective way of drawing the committee’s attention to the claimant’s multitudinous objections.

The submission was that by failing to impose suitable conditions for the grant of planning permission, the defendant had failed to protect the claimant’s right to the enjoyment of her home. The defendant’s short answer to this point was that the mere use of land does not in itself give rise to any right that would support a claim based on the Convention and, even if it did, the grant of planning permission did not affect her common law right to claim damages or an injunction if any of those rights were adversely affected.

The point made was that in granting planning permission the defendant failed to have any regard to “the risk of danger to human health” from the disposal of leachate through the pipe from which permeation might occur. In so doing, it was said to have failed to have regard to Paragraph 4(1)(a)(i) and 4(2)(a) of the 1994 Regulations. The complaint here seems to have been that the defendant failed to impose a condition in relation to the composition of the pipe when it granted the permission. When failing to impose a condition, the defendant also failed to have regard to the provisions of paragraph 16.4 of the PPG as set out above and in so doing failed to have regard to a material consideration.

(1) Subject to the following provision of this paragraph, the competent authorities shall discharge their functions, insofar as they relate to the recovery or disposal of waste, (?in accordance with) the relevant objectives.

“Relevant objectives” are defined in paragraph 4 as being “in relation to the disposal or recovery of waste” as

(a) ensuring that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment and in particular without –

(i) risk to water, air, soil, plants or animals

The case of R v. Leicestershire County council ex parte Blackfordby and Boothorpe Action Group [2000] JPL 1266 was relied upon for the proposition that the obligations under the Schedule were not absolute. Thus

42. (It was accepted) that the objectives are not absolute requirements in the sense of requiring a local planning authority in each case to achieve the result pursued by the objective. That would amount to a requirement to refuse planning permission if there were any risk to human health or the environment, which would in turn lead to the refusal of permission for almost any lanfill site. Such a result would be contrary to existing waste plans and policies …. existing guidance, the terms of the objectives themselves … and common sense. As the Advocate General observed in Comitato di Coordinamento per la Diefsa della Cava v. Regione Lombardia [1994] Env Lr 281 at 289 paragraph 37, “any measure for the disposal of waste is inherenetly liable to produce pollution”.

Then at paragraph

49. …. I have come to the conclusion, however, that there is no real distinction between those formulations. What matters is that the objectives should be taken into consideration (or had regard to) as objectives, as ends at which to aim. … The decision does not cease to have been reached with those objectives merely because a large number of other considerations have also been taken into account in reaching the decision and some of those considerations militate against the achievement of the objectives.

I would respectfully adopt the good sense of this passage and hold that what is required is an intelligent and understanding approach to the balanced judgment which any local planning authority is required to reach in a case such as this. Here, the overall objective of what was proposed was to lessen the impact on the environment of tanking two loads of raw leachate many miles to Stoke on Trent each day by means of the provision of a plant, with associated discharge to the public sewer, which would lessen the impact to the environment of the surrounding area. There is no merit in this part of the case.

Each of the several bases upon which the decision of the defendant planning authority was challenged has been seen to be without merit. Moreover, for reasons already given, I hold that the claim was not made within the permitted time and that no grounds exist for extending the time within which the claim might be brought. If it be thought that the judgment of the court has born harshly on the claimant, this is not due to any failure to understand her concerns about what to her are activities on land carried on by her uncomfortable neighbour. Both common sense and balance is required in a democracy. The lawful actions of public bodies and those who contract to carry out some of the services which they are required to perform are bound to have some adverse consequences to some of the population in the vicinity of those operations. But this is for the benefit of the population at large and is the price which has to be paid for the other benefits which flow from living in a democracy. The criticism which I would make is as to the scatter gun nature and the prolixity of the grounds advanced and the dogged persistence and ingenuity which have been displayed in seeking to make those grounds good, when it was plain that on a proper investigation they were totally lacking in legal merit.