Horner, R (on the application of) v Castle Cement Ltd. [2005] EWHC 2273 (Admin)

Case No CO/1050/2004[2005] EWHC 2273 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 19th July 2005
Strand
London WC2
B E F O R E:
MR JUSTICE OUSELEY
Between
THE QUEEN ON THE APPLICATION OF HORNERClaimant-v-
Between
LANCASHIRE COUNTY COUNCILDefendantCASTLE CEMENT LIMITED(3RD INTERESTED PERSON)
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR STEPHEN TROMANS appeared for CLAIMANTMS FRANCIS PETTERSON QC (instructed by the solicitor to Lancashire County Council) appeared for DEFENDANTMR JAMES FINDLEY (instructed by Norton Rose) appeared for INTERESTED PERSON.
J U D G M E N T
[1]Castle Cement Limited is a major United Kingdom cement manufacturer. Its Ribblesdale works at Clitheroe in Lancashire adjoin the limestone quarry which feeds the manufacture of cement. The works comprise many buildings and structures within the 62 hectare site. The quarry itself covers some 113 hectares. The manufacture of cement is an energy intensive process and its cost a major part of the costs of manufacture. In common with other manufacturers in the UK and Europe, Castle Cement sought means of reducing its energy costs, coal consumption and the emissions associated with coal burning. Castle Cement uses Cemfuel, from waste solvents, and more recently has conducted successful trials for the use of chipped tyres as an additional substitute fuel. On 17th September 2003, Castle Cement sought planning permission from the County Local Planning Authority, the Lancashire County Council, for the:
"... erection of machinery to handle (AWDF) Animal Waste Derived Fuel comprising the tanker off-loading area, storage silo, extraction system to feed AWDF into the calciner on Kiln 7, site area -- 1,000, metres square."
No alterations were required to the calciner in Kiln 7, where the AWDF would be burnt, to enable AWDF to be burnt in it. Kiln 7 is its most modern and productive on the site.[2]No Environmental Impact Assessment was undertaken and no Environmental Statement was sought or produced. After consultation, planning permission was granted on 19th January 2004, subject to three conditions.[3]The claimant owns and farms two farms in close proximity to the works. One is separated from the works only by the River Ribble and cattle can cross from one side to the other at low water. Castle Cement owns farmland on the other side of the Ribble and that farm shares certain access roads with the works. The other farm of the claimant is further away and that is where she lives with her family. She has long had concerns about the operation of the works, fearing that they have caused her and her family to suffer ill health from airborne emissions and blowouts. She now fears that the use of AWDF as a fuel will harm her and her neighbours' farmland and stock through blowouts, accidents, emissions at low level, as well as stack emissions in the course of normal operations. She seeks to challenge the planning permission on the grounds that there should have been an Environmental Impact Assessment, that the Waste Objectives of the National Waste Strategy 2000 and of the Lancashire Minerals and Waste Local Plan were ignored, and that condition 3 on the planning permission was irrational.[4]I have used the acronym AWDF but what the initials AWDF stand for and what the substance actually is has been a matter of some controversy in this case. Briefly, it stands for either Animal or Agricultural Waste Derived Fuel. Both variants have been used. The County Council and Castle Cement contend that they mean or meant Agricultural rather than Animal WDF. Neither the application for planning permission nor the planning permission define AWDF, although the former refers to it as "animal WDF". It is not an expression which is defined in any statute or regulation. Suffice it for the present to say that the County Council and Castle Cement contend that it is essentially Meat and Bone Meal (MBM), which is the granular solid residue left after the rendering process has extracted the fat or tallow. They say that in use here, it comes only from animals that were fit for human consumption and it is said not to be a hazardous waste. The claimant contends that for the purposes of this case, the absence of definition means that the words are wider in scope and could potentially include hazardous materials and, of particular concern, the residue of animals not fit for human consumption.[5]An important component of the legal and factual background to the consideration of the planning application is the effect of other legislative controls which operate over the works. The kilns had operated under an integrated pollution control regime authorisation since 1993, and under that regime as varied had been able to burn Cemfuel as a substitute fuel for coal. Under the Pollution Prevention and Control (England and Wales) Regulations 2000 SI 1973, Castle Cement had been granted a Pollution Prevention and Control permit in April 2003 as an existing installation for the production or grinding of clinker, which is a necessary component in the manufacture of cement. It continues to burn Cemfuel as a part substitute fuel for coal. As part of that permit it had been given permission for the trial burning of chipped tyres and, following the satisfactory completion of the trials, it had been given in May 2004 permission for the permanent use of chipped tyres as a further part substitute fuel.[6]Because Cemfuel is a hazardous waste, Kiln 7 is subject also to the requirements of the Hazardous Waste Incineration Directive CD94/76/EEC. This is because the directive applies to the co-incineration of hazardous waste as a fuel in industrial plants. The controls and emission limits apply whether or not the waste fuel being burnt is hazardous. Kiln 7 will be subject to the successor directive, the Waste Incineration Directive 2000/76/EEC, which applies to the use of all wastes as fuel, hazardous or not. Castle Cement will have to obtain a further variation to its PPC by the end of 2005 to enable it to burn waste as a substitute fuel under the WID.[7]On 22nd October 2003, Castle Cement submitted to the Environment Agency an application for a variation to its PPC permit to enable it to burn AWDF as a trial before its use could become permanent. Were it to become permanent, it could amount to the whole of the fuel supply to the calciner and up to 50 per cent of the total energy requirement of Kiln 7. This application was treated as a substantive change to the permit because the EA did not think that the potential for significant negative effects on human beings or the environment could be discounted. This led to a substantial public consultation exercise but not to the need for an EIA, in part because there is no requirement in English law for such an assessment for a PPC application. Because this was the first application for use of AWDF which the EA had considered, it followed its Substitute Fuels Protocol for Cement and Lime Kilns, which included an enhanced consultation going beyond the statutory requirements of the PPC regime. The County Council received a copy of the application. In September 2004 consent for the trial variation was granted and, if the 6-month trial meets the defined critical success factors laid down in the trial and if no other issues arise, the permanent use of AWDF will be allowed without any further application.[8]The claimant's contention however, in short, is that the development, the subject matter for the application for planning permission, was of a nature which required an Environmental Impact Assessment, or alternatively is that it could have been of such a type and that the Local Planning Authority failed to consider that issue. In so far as the planning officer now said that that issue had been addressed by him, his evidence should be regarded with scepticism. The Statutory Provisions[9]The relevant provisions are contained in the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 SI 293. The legislation is structured so that, if development is what the Regulations term "EIA development", an Environmental Statement is necessary before planning permission is granted. Where an application is made for development which may be EIA development but without an ES, the planning authority has to proceed as if it had been asked for a screening opinion; that is a written opinion as to whether or not the development is an EIA development. If it is of that opinion, an ES is necessary before consent is granted.[10]Turning to that in more detail, the relevant provisions are as follows: 7(1) Where it appears to the relevant planning authority that-- a) an application for planning permission which is before them for determination is a Schedule 1 application or Schedule 2 application; and b) the development in question has not been the subject of a screening opinion or screening direction; and c) the application is not accompanied by a statement referred to by the applicant as an environmental statement for the purposes of these Regulations; Paragraphs (3) and (4) of regulation 5 shall apply as if the receipt or lodging of the application were a request made under regulation 5(1)." Regulations 5(3) and 5(4) provide that the local planning authority can ask for more information if it requires more in order to reach a screening opinion and that the screening opinion shall be adopted within three weeks of a request, which in effect Regulation 7 deems to have been made if the requirements of Regulation 7(1)are satisfied.[11]A screening opinion is defined as:
"... a written statement of the opinion of the relevant planning authority as to whether development is EIA development."
[12]EIA development is related to the definitions in Schedule 1 and Schedule 2 but there are differences which are important to the arguments in this case:
"'EIA development' means 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;"
[13]Schedule 1 development is development "of a description mentioned in Schedule 1." 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;"
[14]I now turn to the schedules. The candidate descriptions of development in Schedule 1 are these:
"9. Waste disposal installations for the incineration or chemical treatment (as defined in Annex IIA to Council Directive 75/442/EEC under heading D9), or landfill of hazardous waste (that is to say, waste to which Council Directive 91/689/EEC applies). 10. Waste disposal installations for the incineration or chemical treatment (as defined in Annex IIA to Council Directive 75/442/EEC under heading D9) of non-hazardous waste with a capacity exceeding 100 tonnes per day."
[15]From Schedule 2, Mr Tromans, for the claimant, relies on "Other Projects" class 11(b):
"Installations for the disposal of waste (unless included in Schedule 1)", the relevant thresholds or criteria for which are: "(i) the disposal is by incineration; or (ii) the area of development exceeds 0.5 hectare; or (iii) the installation is to be sited within 100 metres of any controlled waters."
Plainly, if there is a disposal here, it is by incineration.[16]Mr Tromans also relies on class 13(a):
"Any change to or extensions of development of a description listed in Schedule 1 of in paragraphs 1 to 12 of Column 1 of this table, where that development is already authorised, executed or in the process of being executed, and the change or extension may have significant adverse effects on the environment, "(i) In relation to development of a description mentioned in Column 1 of this table, the thresholds and criteria in the corresponding part of Column 2 of this table applied to the change or extension (and not to the development as changed or extended)."
The development to which Mr Tromans related that was in class 5b, under the heading "mineral industry":
"installations for the manufacture of the cement"
. It was not suggested, and this is important, that as hazardous waste was already burnt at the cement works, the development should be seen as an extension to a waste disposal installation.[17]Consistently with the requirement that the relevant significant adverse effects on the environment are those from the change or extension, column 2, which contains the applicable thresholds and criteria, says that they too apply to the change or extensions and not to the development as changed or extended. This meant that the applicable criterion to bring an extension to a cement works within Schedule 2 was that "the area of new floorspace of the extension exceeds 1000 square metres".[18]To all Schedule 2 developments, there has to be added the additional test provided by the definition of EIA development, that it had to be likely to have a significant effect on the environment, before it became EIA development and thus required an ES.[19]I also note Regulation 31, which provides that a change in the use of land or buildings to a use for a purpose as a waste disposal installation for the incineration of hazardous waste, is deemed to involve a material change of use.[20]The domestic procedure for complying with the EIA directive requirement, that development which was likely to have a significant environmental effect be subject to the EIA process, is not the product of any specific procedural requirements in the EIA directive. The Lancashire County Council Committee Report[21]This Committee Report, which recommended the grant of planning permission, does not address the application of these Regulations nor directly refer to any officer's assessment of them. The Committee Report described the development as relating to "Animal WDF" or "AWDF", which is described as something more commonly known as Meat and Bone Meal ("MBM"), a by-product of the meat preparation industry from meat prepared for human consumption. This description was linked to the application to the EA for the trial permit. It said that the application raised two issues: first, whether the burning of AWDF would constitute a material change of use, with the result, I infer, that a further planning permission would be required; and second, the environmental impact of the equipment had to be assessed. It is clear, however, throughout the Committee Report, that a distinction is being drawn between the operational development for which planning permission was sought and the use of the material through its burning as fuel.[22]In introducing the first issue, namely whether the burning of AWDF would constitute a material change of use, the Committee Report said:
"Firstly, the use of AWDF as a kiln fuel... Before the current planning application is determined, there is a requirement to determine whether or not the burning of AWDF in the kiln represents a change in use of the site from a cement manufacturing plant to a facility for the incineration of animal waste."
The report then sets out the background to the increased use of substitute fuels. The conclusion was that the earlier and continuing use of Cemfuel had not led to a material change of use, because its use was part of the manufacture of cement and the report referred to a case to that effect. In deciding whether or not the burning of AWDF involved a material change of use requiring a separate planning permission, the report said it was important to identify the planning unit by reference to which the materiality of any change of use had to be judged. The question of whether or not it was waste that was burnt was not critical; what mattered was the relationship of the burning of waste to the other activities. The quarry and the cement works were the single unit but it would make no difference if only the cement works were taken as the relevant unit. The unit was used for the mining and working of limestone and for the production of cement; if the lesser unit were the relevant one, I infer that the latter alone would have been said to be its use.[23]Coal and Cemfuel were burnt to provide the heat for the cement-making process:
"Similarly, the burning of AWDF will provide heat to be used in the firing of the kilns. The burning of AWDF will not result in the production of more heat or an increase in the quantity of cement produced at the site. It will simply mean that less coal isus burnt in the kilns. If the kilns are not producing cement, the coal, Cemfuel, tyres or AWDF will not be burnt in the kilns. "
Therefore it can be concluded that the purpose of burning substances, whether coal, Cemfuel, tyres or AWDF is to produce heat which is an essential part of the cement making process and is ancillary to that process." The report considered the possibility that the burning of substitute fuels could reach such a level that there might be a dual use of the site for cement manufacture and waste incineration, but it said that the ancillary nature of the burning to the manufacture of cement was still maintained with this application. Nor would there be any material change of use by intensification.[24]The report considered whether the environmental effects of burning AWDF would be such as to create a material change of use and, after concluding that the effects would not lead to such a result, it said:
"The other main environmental impact that is likely to arise from the burning of AWDF is in terms of the emissions from the kiln stack. To some extent it is difficult to quantify what change in emissions might result from AWDF until the trial has taken place. However, the Company have developed a number of 'critical success factors' against which the success of the trial will be judged. These critical success factors include no increase in stack emissions, a reduction in Carbon Dioxide and no discernible odours from the burning or storage of AWDF outside of the site boundary. The Environment Agency will only allow permanent burning of the AWDF taking into account the degree to which the Critical Success Factors are satisfied as part of the trial. The Company expect that oxides of nitrogen and carbon dioxide to be reduced and all other emission to air from Kiln to be unchanged."
As the AWDF would be from animals fit for human consumption, there was not a risk of BSE contaminants being present in the kiln fuel. There would be some Specified Risk Material (SRM) but that would be only from animals under 30 months.[25]Again, under the first heading of whether there would be a material change of use, the Committee Report dealt with the question of whether AWDF was waste and, if so, whether burning it in Kiln 7 would be a waste disposal or a waste recovery operation. It took the view that waste remained waste until after disposal or recovery. Cemfuel was thought to be a fuel but it noted that an important case, to which I shall have to make reference, R v Durham County Council exp Lowther [2001] EWCA Civ 781; [2002] Env LR 349, had treated it as waste. Unlike Cemfuel, no treatment or recovery operation in relation to AWDF was necessary in order to make it fit for use as a fuel.[26]The report continued:
"The other point made by the resident concerns the fact that the County Council did not require Castle Cement to submit an Environmental Statement when it considered the issue regarding Cemfuel burning at the works. The resident is concerned that no EIA will be required in relation to the burning of AWDF. However it has been concluded in the above analysis that the burning of the supplementary fuels, whether Cemfuel tyres or AWDF, does not constitute development requiring planning permission. Consequently, if no permission is required it is equally not possible for the County Council to require an EIA before the burning of these materials commences."
Mr Tromans put some weight on that passage.[27]The Committee Report then turned to the second issue which it had identified: environmental impact arising from the proposed development. After saying that the visual impact of the proposed new equipment would be acceptable, it acknowledged that the issues relating to the burning of AWDF were relevant. It said that the wider legal issues had already been considered in the previous section dealing with material change of use:
"A number of other points are also made with regard to emissions from the kiln stack and the methods by which the success of the trial is assessed. These are points that are more relevant to the Environment Agency and they do not affect the principle of assessing the planning application."
Finally the report said that emissions from the stack and the assessment of success in trial were matters for the Environment Agency and did not affect the principle of the planning application.[28]The report recommended and it was resolved that AWDF would be used as a fuel for the production of cement, would be incidental to the manufacture of cement and that there would be no material change of use in AWDF being burnt as an additional substitute fuel. Accordingly planning permission was granted as recommended. The First Ground of Challenge[29]The claimant's challenge in this ground is not to the consideration of matters in the Committee Report directly, nor is it to the relationship between the Committee Report's consideration of the application and the terms of the grant of planning permission. Instead it is to the way in which the prior obligations under the EIA Regulations to consider whether development was EIA development were or were not met.[30]Mr Haine, Team Leader of Development Control in the Environment Directorate of the County Council, said in his first statement that he had been responsible for planning control at Ribblesdale for 5 years and was familiar with the site. After the advertisement of the application on 25th September 2003 but before the consultation on 6th October 2003, to follow the apparent chronology of the witness statement, he said this:
"Officers of the County Council considered whether the proposed development was of a type to come within Schedule 1 or 2 of the Town and Country Planning (Environmental Impact Assessment) Regulations 1999 but took the view that it did not because the development was not specifically for the disposal of waste and therefore did not require the submission of an EIA prior to the application being determined."
Later, on 30th October 2003, further information was sought from Castle Cement relating to the exact nature of AWDF, its manufacture, its thermal replacement levels in the kiln and "likely environmental impacts arising from its use as a kiln fuel." The reply was given on 3rd December 2003. On 14th November 2003 the EA appears to have given the County Council a copy of the permit variation application.[31]Mr Haine's second witness statement took matters a little further in response to the claimant's comments about the implications of his first witness statement and whether the possible classification of the development as an extension to the cement works had been considered. Paragraph 4 said that "on receipt" of the application for planning permission, he had considered whether it was such an extension. He concluded that it might be an extension but "that it was unlikely to have significant adverse effects." Thus it was not EIA development and neither a screening opinion nor an environmental statement was required. Mr Haine emphasised that he had considered all the possible paragraphs of Schedule 1 and Schedule 2. Information as to the exact composition of the fuel was not necessary in order to make a proper assessment of "whether there would be significant environmental effects." Mr Haine said that the County Council's decision that there would be no material change of use was consistent with his own assessment that it was unlikely to have significant adverse effects on the environment.[32]Mr Haine dealt with his view as to the interaction of the roles of the Local Planning Authority and the Environment Authority as follows:
"The applicant is of the view that technical issues such as temperature of incineration and the categorisation of the waste should have been taken into account during the planning process. However, these issues are connected with the detailed control of the process and it is not for the planning authority to duplicate controls which are the statutory responsibility of other bodies, in this case the Environment Agency. The position is repeated by the Government in PPS 23. Some of these matters, such as the exact chemistry of the fuel, the functioning of the kiln and the issue of alternatives are matters that could, under certain circumstances, be included within an Environmental Statement. However, as set out above and in my previous witness statement, the County Council did not consider that the proposal was EIA development and therefore no Environmental Statement was required to accompany the application."
The reference to "animal" rather than "agricultural" in referring to AWDF in the planning permission and planning application was the result of a mistake in the application and the application to the EA had correctly referred to agricultural WDF, but it was, he said, a point which had no effect.[33]Mr Tromans' first argument, as it evolved, was that the development applied for was, as a matter of law, a waste disposal installation within either class 9 or 10 of Schedule 1 or class 11b of Schedule 2 of the EIA regulations. Mr Tromans relied on R (Goodman) v Lewisham LBC [2003] EWCA Civ 140, [2003] Env LR 28, paragraphs 7-9, for the proposition that the question of whether development fell within the classes in the Schedule, before any question of the significance of their effect arose, was to be regarded as a matter of law and not one of judgment for the reasonable assessment of the Local Planning Authority. The issue in that case was whether a particular development was an "urban development project". Buxton LJ said this:
"These are very wide and to some extent obscure expressions, and a good deal of legitimate disagreement will be involved in applying them to the facts of any given case. That emboldened Lewisham to argue, and the judge to agree, that such a determination on the part of the local authority could only be challenged if it were Wednesbury unreasonable. I do not agree. However fact-sensitive such a determination may be, it is not simply a finding of fact, nor of discretionary judgment. Rather, it involves the application of the authority's understanding of the meaning in law of the expression used in the Regulation. If the authority reaches an understanding of those expressions that is wrong as a matter of law, then the court must correct that error: and in determining the meaning of the statutory expressions the concept of reasonable judgment as embodied in Wednesbury simply has no part to play. That, however, is not the end of the matter. The meaning in law may itself by sufficiently imprecise that in applying it to the facts, as opposed to determining what the meaning was in the first place, a range of different conclusions may be legitimately available."
He contrasted this with the question of whether a development was likely to have significant environmental effects which he said was a planning judgment to which Wednesbury principles would apply.[34]When considering the true meaning of the various classes within the Schedule, Mr Tromans submitted that it is necessary to bear in mind the broad scope and purpose of the EIA legislation, deriving as it does from EC directives. Illustrative of the application of that well-known phrase from Kraaijeveld [1996] ECR 1-5403 were two European Court decisions, WWF v Bozen [2002] 1 CMLR 149 and Commission v Spain [2005] Env LR 384. In the former, the ECJ held that it was unlawful for Italy to exempt a class of development from the scope of assessment unless it could properly be said that no development of that type could have significant environmental effects. The particular exemption applied to runway extensions and other alterations which could, and in this instance were intended to, enable a complete change in the character of an airport to take place. The EC legislation did not then include express provisions for modifications or extensions to be covered but the ECJ, applying a broad and purposive test, concluded that the legislation would have to be interpreted so as to cover them if major projects were not going to fall outside the scope of the legislation. There has now been legislative change applicable here to give express effect to the result of that judgment. In the Spain case the ECJ interpreted "lines for long-distance railway traffic" as including the doubling of track along an existing route so as to provide a new long-distance track route, and held that the phrase was not limited to a wholly new route. The basis of its reasoning was the same: a line with a major impact could otherwise evade the provisions of the legislation. (I am not sure that that latter case in particular involves any more than a straightforward reading of the text of the legislation, avoiding an unduly legalistic approach, rather than some special ECJ derived purposive approach.)[35]Accordingly, submitted the claimant, it did not matter what Mr Haine, in his witness statement or in the Committee Report, had said about whether or not the development fell into a particular class by reference to the description of that class. If he reached the wrong conclusion it did not matter that it might have been a reasonable conclusion to reach. By the same reasoning, if the conclusion was correct in law but the justification for the conclusion was erroneous, the conclusion would still stand.[36]Mr Tromans accepted that, had no installation been necessary for the storage and feeding of AWDF into the calciner, it could not have been said that the conclusion in the Committee Report, that the burning of AWDF as a further substitute fuel for coal did not amount to a material change of use, was unlawful. He also accepted that it was not his case that there was a dual use of the calciner for making cement and for the disposal of waste by incineration. He accepted that AWDF was burnt solely as a fuel and that fuel to burn in the calciner and kiln was an essential part of cement making. So far as Castle Cement was concerned it was not being burnt so as to dispose of it but because it was a financially beneficial way of lowering fuel costs and it provided the necessary calorific value for that purpose.[37]Turning to the three waste disposal installations classes, Mr Tromans submitted that the proposed works fell within them because the proposal was for operational development and they were an installation on any view. The purpose of the proposed works was to receive and store waste and to feed it to the calciner of Kiln 7. It did not matter that the facilities for burning were already in place, were unchanged and that no burning itself was to take place within the works for which planning permission had been sought. The proposal directly involved the storing of AWDF and its mechanism for feeding into the combustion chamber. This was necessary in order for the material to be burnt in the calciner and kiln. This was also said to be an indirect effect of the project for the purposes of what the EIA Directive required to be assessed. As a matter of language and law, that was sufficient for the works for which planning permission was sought to constitute a waste disposal installation for the incineration of waste.[38]The question, it was said, upon which the Local Planning Authority had to focus in dealing with all those classes was not whether the cement works as a whole had become a waste disposal installation but whether the works which were the subject of the application for planning permission were a waste disposal installation. It was consistent with the decision in Lowther to say that the question to be focused on was the purpose of the proposal; its purpose did not cease to be waste disposal because the disposal of waste was incidental to some other use. Here the sole effect of the new installation was for the disposal of waste by burning so that the new installation had that use, even though the cement works as a whole did not and would not. A material change in the cement works as a whole was not required in order for the works applied for to fall within those classes.[39]Mr Tromans submitted also however that the proposed works fell within the scope of a waste disposal installation for the incineration of hazardous waste because the nature of the waste which could be burned within the limitations of the definition of AWDF in the application and in the planning permission could include hazardous waste. To support that he showed me the European Waste Categories listed in the Commission decision of 3rd May 2000, establishing the list of hazardous and non-hazardous wastes pursuant to CD 75/442/EEC, the Waste Framework Directive, and CD91/689/EEC on hazardous waste. Without setting out all the various categories but taking the widest view of "animal waste", there are elements within category 18 "wastes from... animal health care and/or related research" which are marked as hazardous.[40]Alternatively, submitted Mr Tromans, the capacity threshold for waste disposal installation for the incineration of non-hazardous waste was satisfied because the new installation could blow AWDF at 7 tonnes per hour into the calciner, which exceeded the capacity threshold for that class of 100 tonnes per hour.[41]Alternatively, it fell within Schedule 2 class 11b as an installation for the disposal of waste subject to the criterion that the disposal be by incineration and that the development fall outside Schedule 1.[42]Additionally, and this gave rise to a different point of law, the local authority and its officers had not considered properly whether the proposal, if it fell within Schedule 2, was likely to have significant environmental effects because they did not know what the nature of the material to be burned as AWDF was, and they did not tie the permission down to whatever they thought it would be. It was not lawful for a planning authority to avoid the provisions of the EIA Regulations by failing to consider the issues to which they gave rise. If a Local Planning Authority did not consider the relevant issues or ignored relevant considerations, its subsequent decision on the planning application would be flawed even though it might be said that it probably would have come to the same conclusion that development was not EIA development.[43]The final alternative was that the project was a change or extension to a cement manufactory within paragraphs 5 and 13(a) of Schedule 2. Although Mr Tromans had originally submitted that the applicable threshold, that the new floorspace exceed 1000 square metres, was met so as to bring the development within paragraphs 5 and 13(a), he later submitted that for a development of this sort there was no "floorspace" as such and so that threshold was passed even though he accepted that neither the site area nor "floorspace" of the change or extension exceeded 1000 square metres.[44]The same submission which I have already set out about the County Council officer's lack of knowledge of the nature of the AWDF at the time of considering whether or not it was EIA development applies to this class as well. But there was an additional point here which was that class 13 itself required a judgment about whether the development may have significant adverse effects which had not been properly considered. Although this was a different test in those two underlined respects from that which was necessary to turn any Schedule 2 development into EIA development, it was sufficiently akin to bring in the requirement for a screening opinion once development by extension was held to be a Schedule 2 development by virtue of that in paragraph 13(a) tailpiece. A screening opinion would then have been necessary and should have been recorded if it were concluded that the Schedule 2 extension was not EIA development because it was thought unlikely to have significant environmental effects. In effect, Mr Haine should have asked himself whether there could be a significant adverse effect, and if he concluded that there could be, a screening opinion would have been necessary.[45]Mr Tromans submitted that it was impossible for anyone applying the test properly not to conclude that the development met that limited test within paragraph 13(a) and Schedule 2, especially in view of how much was unknown at the time. He pointed to the concerns expressed by the claimant about transport, spillage, accidents, blow-outs as well as emissions, and the way in which her and other nearby farmers were operating so that their livestock could come into contact accidentally with MBM. The TSE (England) Regulations 2002 SI/843 part 3 evidence, in the controls preventing the keeping of mammalian MBM materials where any livestock is kept, or its use as fertiliser, coupled with the severity of the consequences for livestock, such as movement restrictions and slaughter, the gravity of the risks which MBM can pose to farmers. The Animal By-Products Regulations 2003 SI/1482 supported that. The recitals to the 2 EC Regulations: 999/2001 (for the prevention, control and eradication of TSE) and 1774/2002 (containing health rules concerning animals by products not intended for human consumption), which those two UK regulations transpose into domestic law, show the concern over Specified Risk Material. This should be removed and disposed of in a manner which avoided any risk to animal or human health. SRM included material from animals which were under 30 months at death and the special rules for animal by-products showed the range which could fall within the notion of AWDF if it were not defined so as to exclude it. BSE might be present in SRM from under 30-month stock.[46]Castle Cement's own flow chart and material from its supplier for the trials, Pointons, showed that SRM would be a part of the MBM supplied to Castle Cement. Fallen stock, even though it was not intended any from stock suspected of having BSE, would be used. Neither fallen stock nor SRM was from animals fit for human consumption. Mr Haine's evidence had shown that he had made erroneous assumptions about those matters when saying in the Committee Report that all the material to be burnt would be from animals fit for human consumption. Much information had arrived also only after the grant of planning permission.[47]To the extent that the County Council, at the stage of analysing whether or not a screening opinion was required, had relied upon the EA controlling the nature of the AWDF and the significant adverse environmental effects so that they were limited, that was an error of law as to the way in which the involvement of a regulatory body should be allowed for. The challenge was mounted to the thinking at that stage rather than at the stage in which planning permission was granted, although it was said that there was nothing in the conditions attached to the planning permission which tied the development to the assumption made when the conclusion about a screening opinion was reached.[48]The relevant principles for the interaction between the Local Planning Authority and other bodies such as the EA are set out in a number of authorities but conveniently gathered in Hereford Waste Watchers Ltd v Hertfordshire Council [2005] EWHC 191 Admin, Elias J. "1. The decision whether a process or activity has significant environmental effects is a matter for the judgment of the planning authority. In making that judgment it must have sufficient details of the nature of the development, of its impact on the environment and of any mitigating measures. "2. Equally, it is for the planning authority to decide whether it has sufficient information to enable it to make the relevant judgment. It need not have all available material provided it is satisfied that it has sufficient to enable a clear decision to be reached. "3. In making that determination, the planning authority can have regard to the mitigating measures provided that they are sufficiently specific, they are available and there is not real doubt about their effectiveness. However, the more sophisticated the mitigating measures and the more controversy there is about their efficacy, the more difficult it will be for the authority to reach a decision that the effects are not likely to be significant. "4. If the authority is left uncertain as to the effects, so that it is not sure whether they may be significant or not, it should either seek further information from the developer before reaching a conclusion, or if an ES has already been provided it should require a supplement to the ES which provides he necessary data and information. It cannot seek to regulate any future potential difficulties merely by the imposition of conditions. "5. The authority cannot dispense with the need for further information on the basis that it is not sure whether or not there are significant environmental effects, but that even if there are, other enforcement agencies will ensure that steps are taken to prevent improper pollution. However, it should assume that other agencies will act competently and it should not therefore anticipate problems of difficulties on the basis that those agencies may not do so." I think that the essential distinction in point is clearer when read with paragraph 33. "33. Mr Jones came close to submitting that these safeguards can be relied upon so as to entitle the authority to assume the other agencies will so act as to preclude any adverse environmental effects. Plainly that is not the implication of these observations. The primary obligation to ensure that the environmental safeguards are complied with rests with the planing authority and they cannot abdicate responsibility by relying upon other enforcement agencies to make good their failings. They can, however, assume that if a system is in principle capable of operating without creating significant environmental effects, or if the details of the project are left to be determined with an input from other agencies, it should be assumed that the relevant enforcement agencies will operate competently to ensure that the system will operate as it should. Even if the system would have significant effects if not competently regulated, the authority should not act on the premise that this may occur." This refers back to what Laws LJ was saying in Bellway Urban Renewal Southern v Gillespie [2003] ECWA Civ 400 2003; Env LR 30 at paragraph 46, concerning the distinction between remedial measures, the availability, nature and effectiveness of which were established and controversial, and those measures which were not.[49]The right approach, submitted Mr Tromans, was for the Local Planning Authority to set out the constraints within which the development would operate. It could assume that the EA would act competently in considering any variation application but it could not defer to the EA over the setting of planning constraints. It had to make assumptions for the purpose of its conclusions on class 13(a). It had to tie the permission to those assumptions otherwise it might have contemplated for screening opinion purposes a development other than the one which it had permitted. Mr Tromans referred here to R v Rochdale MBC ex p Tew [2000] Env LR 1.[50]Mr Tromans also submitted that Mr Haine's evidence as to the basis upon which the issue of EIA development was considered was unreliable. He submitted that Mr Haine's evidence contradicted the Committee Report in the language used about the significance of effects, about material change of use, saying that an EIA would only be required if there were a material change of use or a waste disposal installation for incineration, and at least was rather different in its approach to the tests for an extension to a cement works. There was no mention of the consideration given to whether or not EIA was necessary in the part dealing with the claimant's complaint that there had been no EIA claim. Mr Haine's witness statement, even if relied on, revealed an error of law in dealing with the question of whether, as an extension to a cement manufacturing works, the proposal was a Schedule 2 development. It appeared that he had applied the test of whether it was EIA development, which would have involved a screening opinion, rather than applying the test of whether or not the development "may" have significant adverse effects.[51]The relevant principles to be adopted with respect to later evidence of reasons are summarised in Hereford Waste Watchers Ltd by Elias J and are taken from Stanley Burnton J in Nash v Chelsea College of Art and Design [2001] EWHC Admin 538. I accept them but emphasise the sharp distinction to be drawn between the normal inadmissibility of later reasons to elaborate those which are required by statute to accompany or form part of a decision and the admissibility of later reasons for other decisions. The reservations expressed go to the way in which that later evidence is appraised. Those reservations are considerations to be borne in mind in that appraisal, but its outcome depends on the circumstances of each case.[52]There was an attack upon the capacity of Mr Haine to reach a decision as to whether a screening opinion was necessary or whether development was EIA development. The scheme of delegation was then produced. Although it did not contain an express delegation of the decision-making power to someone below the level of Chief Officer in the Environment Directive, Mr Tromans did not press his submission that Mr Haine lacked delegated authority to reach a decision on those points, in the light of Younger Homes (Northern) Ltd v First Secretary of State [2004] EWCA Civ 1060; 2005 JPL 354 at paragraph 33, reflecting such earlier cases as Provident Mutual Life Assurance Association v Derbyshire County Council [1981] 1 WLR 173 and Cheshire County Council v Secretary of State for the Environment [1988] JPL 30. Conclusions on the First Ground[53]In dealing with the claimant's submissions, some preliminary observations are necessary. First, the challenge is to the way in which the question of enviromental assessment was decided. It is not directly to any failure of the grant of planning permission or its conditions to reflect the assumptions or conclusions of whatever consideration was given to the need for environmental assessment. This is not a mere technicality: the challenge is mounted that way, at least in part, because the court may well have a broader discretion if the error occurs in the terms of the grant of planning permission as opposed to the consideration of the requirements of Regulations which transpose EC directives. Moreover, by the time the planning permission came to be granted and the conditions accepted, the County Council had rather more information than it had at the time when it reached whatever conclusion it did reach in relation to whether a screening opinion was necessary. This itself would reduce the prospect of significant error, and increase the potency of the discretion argument, that reconsideration of that stage could not affect the outcome. The EA's position was also much clearer by then.[54]Second, it is accepted by the claimant that the County Council could and did lawfully conclude that the development proposed involved neither a material change in the use of the works, or of the works and quarry, either of which might be the relevant planning unit for those purposes. Nor did it involve a material change through the creation of a dual cement manufacture and waste disposal use. The kiln and calciner already burn Cemfuel, a hazardous waste, as a fuel, although that is not the reason for the claimant's acceptance of both points. That acceptance reflects instead the role of Cemfuel and AWDF as an essential part of the manufacture of cement, burnt solely because of the financial advantages and calorific value of the fuel in the manufacture of cement.[55]Third, Mr Tromans is right to say that to the extent that the question of whether the project falls within Schedule 1 or 2 of the EIA Regulations is a matter of law, it does not matter whether any reasoning that it does not is reasonable. It only matters whether that reasoning is right or wrong, or rather, whether the answer is right or wrong even if the route by which it has been reached is itself open to criticism. In that way, deficiencies in the Committee Report are irrelevant if the answer to a question of law is actually correct. If the lawfulness of the conclusion depends on a lawful judgment of fact and degree, the position is otherwise.[56]I accept that the analysis in Goodman is applicable here. The meaning of the various classes into which Mr Tromans says that this project falls is a matter of law. That meaning may be ascertained by reference to the defining characteristics of, say, "waste disposal installation for the incineration of waste", or to the factors which are irrelevant to the scope of that approach. An example of that would be whether a distinction is drawn for those purposes between waste disposal and waste recovery, or whether the "installation" went beyond the operational development applied for, or whether it was the purpose or effect of the incineration which mattered, or both. However, the application of the phrase, adopting the correct approach in law, to the particular facts of an individual case, is a matter of fact and degree, subject to challenge only on conventional public law grounds.[57]Fourth, I consider that the project for these purposes is defined by the application for planning permission. The decision of R v Swale Borough Council ex p RSPB 1990 JPL 39, Simon Brown J, is instructive here:
"The question whether or not the development was of a category described in either schedule had to be answered strictly in relation to the development applied for, not any development contemplated beyond that. But the further question arising in respect of a Schedule 2 development, the question whether it 'would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location', should be answered differently. The proposal should not then be considered in isolation if in reality it was properly to be regarded as an integral part of an inevitably more substantial development. This approach appeared appropriate on the language of the regulations, the existence of the smaller development of itself promoting the larger development and thereby likely to carry in its wake the environmental effects of the latter. In common sense, moreover, developers could otherwise defeat the object of the regulations by piecemeal development proposals."
[58]Although there may not always be a clear-cut distinction between the project as defined by the application for development consent, and its purpose or effect, it is to the project, defined in that way, that the mind of the official who has to decide whether it is EIA development must turn. The project is not defined by the effects for which it is assessed. Its purpose may be reflected in its definition or in its effects or in both.[59]This case is not concerned with the different problems which can arise where a project, as defined in the application, may be part of a much larger project which is proposed or which may be proposed, but which is divided into sub-parts and which thus might avoid consideration for EIA purposes either as a whole or in its individual parts. This case concerns an extension to an existing development, not the subdivision of a single project into separate parts, each separately proposed.[60]Turning now to the specific submissions, I shall deal first with the question of whether the development comes within Schedule 2, class 13(a), as an extension to a cement works. The language of the application itself and the surrounding facts show the proposal or project to be part of the cement manufacturing process. It is a storage and feed system for a particular type of fuel for the kiln and its calciner. It has no freestanding use, purpose or effect. It is integral to the manufacture of cement. I would have thought it obvious that it was a change or extension to a manufactory; it is within that category by its description, function or purpose and effect. There is no qualification to that class such that only manufacturing parts of the installation are included but, in any event, the storage and feeding of fuel to the calciner and kiln are necessary parts of the process immediately associated with cement manufacture.[61]Notwithstanding the assumption initially made by Mr Tromans that the threshold requirement of 1000 square metres of new floorspace was exceeded, it is now plain, subject to any special meaning given to "floorspace", that that threshold is not exceeded. The site area of the extension is given as 1000 square metres in the application. That does not exceed a threshold of 1000 square metres. It is evident that the floorspace of the buildings could not possibly have exceeded such a threshold. Mr Tromans' fallback argument is to the effect that a project such as this has no floorspace and therefore there is no qualifying threshold to be exceeded and in consequence the project falls within Schedule 2 without more ado.[62]"Floorspace" is defined in the EIA Regulations as "the floorspace in a building or buildings". I appreciate that "floorspace" may not be a word commonly or readily applied to a storage silo and pipework but I do not believe that storage buildings do not have a floorspace. It must have been obvious to the draftsman of the Regulations, in the context of a cement manufactory and extensions to it, that many developments which fall within that class would not have a form to which a conventional floorspace could readily be attributed. Yet "floorspace" is the chosen word for this purpose, and it stands in contrast to the language found elsewhere in the Schedule of "area of works" or area of the "development", or of "buildings". These phrases are applied to a variety of developments and installations. The word "floorspace" is used in respect of many developments which would include structures which would not have a conventional floorspace. This cannot be mere carelessness in draftsmanship.[63]If Mr Tromans' premise that there is no floorspace is correct, which I have already said it is not, his conclusion that the exclusionary effect of the threshold is bypassed simply does not follow. Indeed it is the reverse which would be the case. If the project has no floorspace then the qualifying threshold simply cannot be exceeded. Alternatively, the project is not within Schedule 2 class 13(a) at all, because, on Mr Tromans' argument, that clearly envisages an extension which does have an ascertainable floorspace. Again the variability of the ways in which the qualifying size thresholds in Schedule 2 are described supports that alternative proposition.[64]Accordingly, whatever may be the deficiencies in the way in which that issue was considered, Mr Tromans cannot succeed on that point.[65]I should say, however, that, had I taken a different view of the scope of this class of Schedule 2, it would have been my conclusion that the County Council's consideration of the issue was defective. I see no reason to disbelieve Mr Haine when he says that he did consider this class. Where the reasons for a conclusion are not required to be recorded, and here they are not, and where the decision is not one for which the reasons have to accompany the decision, there is no special legal principle of suspicion or caution to be exercised in respect of the later exposition of reasons or the provision of explanations. Those are but normal tools used in the case specific assessment of facts and would naturally be engendered simply by the provision of late and varying or contradictory reasoning or explanations, in the knowledge that self-protection or self-justification may lead to an unconscious process of self-deception.[66]But I do not accept that Mr Haine's reasoning could have been justified. His own evidence as to the chronology of his consideration does not specify precisely when he reached his conclusions in relation to EIA matters but it is plain from his various statements that it must have occurred very shortly after the application was lodged. For the purposes of this decision by him, it does not matter what information he had obtained from the EA or Castle Cement by the time the Committee resolved to grant planning permission; what matters is what he knew when he decided that no screening opinion was necessary. I am not prepared to infer that he waited so long that he had the IPC variation application, which arrived on 14th November 2003 or the answer from Castle Cement on 3rd December 2003. The tenor of his evidence is that he reached these conclusions shortly after 25th September 2003 when the application was lodged.[67]I find it hard in those circumstances to avoid the conclusion that his then knowledge would not have permitted him to conclude at that stage that the application could not have significant adverse effects. It would therefore have been Schedule 2 development. Whilst I have no difficulty in seeing how he might later, in the Committee Report and with much more information available, hold the legitimately reached view that the proposal was not likely to have significant environmental effects, the question at the earlier stage was different. Had he concluded that it could have a significant adverse effect, as in my judgment he inevitably would have had to, he would have had to adopt a screening opinion within three weeks as to whether or not the Schedule 2 development, as he would then have concluded that it was, was likely to have significant environmental effects. It is difficult to know what at that stage he would have concluded and the ultimate consideration in the Committee Report does not tell us very much about what the screening opinion would have been, because of the lesser information which he would have had.[68]The issues which would then have arisen as to the exercise of any discretion not to quash the planning permission in the light of the Committee Report and the EA's subsequent conclusion on the unchallenged variation decision would have been difficult. An EIA might have been required, and the fact that the result of the planning application would have been the same in all probability might well be no answer. The fact that the detailed consideration led to the conclusion that there would be no significant environmental effects might not necessarily avail either.[69]However, as Mr Tromans points out, if this development falls outside the scope of the class in question, it matters not what errors may have been made, had it fallen within that class.[70]I turn then to the various waste disposal installation categories. The three waste disposal categories share a common theme, even if the detail means that the project could only fall within one of them.[71]It is important, in this context, to repeat the acceptance by the claimant that the burning of fuel is essential to the cement manufacturing process and that the burning of waste, including hazardous waste, would involve no material change of use in the installation as a whole. Also, hazardous waste is already burnt as a substitute fuel for the purpose of manufacturing cement and it is not suggested that the manufactory was already a waste disposal installation.[72]That acceptance by Mr Tromans is wholly borne out by the conclusions in the case of Lowther. Although there were purpose built storage tanks for the substitute fuel used in those lime works, the issue arose as to whether the burning of SLF as a substitute fuel, in essentially the same way as the use of AWDF is proposed here, involved a material change of use to one of or one including waste disposal.[73]It is an important case and I set out the relevant passages, first from Lord Phillips MR:
"There is an obvious distinction between an activity involving waste where the object is simply to dispose of the waste which is, ex hypothesi, unwanted and an activity that involves making use of waste for an ulterior purpose involving a process in relation to which the waste is wanted. In the former case the land will be used for the disposal of waste. In the latter case it will be used for the ulterior purpose, and the disposal of waste in the course of the operation will be incidental to the particular use of the land. "
For those reasons I reject Lord Kingsland's submission that the burning of waste on a significant scale must always constitute a separate land use for planning purposes."[74]The Court of Appeal then considered the circumstances in which the burning of waste on a significant scale could constitute a separate land use. It could be the paramount objective or incidental: an example was given of the recovery of gas from a landfill site which did not cause the landfill site to become a gas recovery site instead of a waste disposal site. Sometimes there might be a nice balance between the two: the burning of slaughtered cattle in power stations was given as an example. Lord Phillips then considered whether, in the circumstances, the burning of SLF to produce lime necessarily constituted a separate land use:
"71. In these circumstances there is no question of the second respondents holding SLF for the purpose of disposing of it as waste. They acquire it because they wish to use it as a fuel, and that is how they use it. If SLF was not waste, but was produced as a fuel, there could be no suggestion of the second respondents making two uses of their land, one being burning of fuel and the other the manufacturing of lime. To postulate that the designation of SLF as waste makes all the differences and results in a separate use of the land is unreal. I agree with the obiter observation of Harrison J in R v Environment Agency and Redland Agriculture Ltd, ex p Gibson (May 8, 1988) and p 46 that: "
'On any sensible analysis the plants at... Thrislington are lime producing plants; they are not plants for the incineration of waste.' "72. This precisely accords with the following key passages in Mr Fitzgerald's advice, as reported:
"'The recovery process is so entirely part of the manufacture of cement for lime that it would be wrong to characterise it as a separate use; there is not waste disposal use in addition to the permitted use. "
'... the nature of the activity is the use of fuel, which is not different from using coal or petroleum coke.'" At paragraph 88 Lord Phillips MR went further and concluded that, on the issue of fact and degree as to whether the use of SLF had changed the character of lime production so as to produce a change in the character of the land:
"That test could only lead a reasonable sub-committee to one conclusion. The character of the process was not altered to an extent that constituted a material change in the use of the land."
Pill LJ said to the like effect:
"93. The facts in the present case are not in issue and the use of SLF as fuel, which also has the effect of disposing of it as waste, is on a significant scale. However, the mere fact that a fuel used in the manufacturing process is classified as waste, or even as hazardous waste, does not of itself necessarily lead to the conclusion that the use of the fuel creates a land use distinct from that of manufacturing. I have come to the conclusion, upon the facts, as set out by the Master of the Rolls in his judgment, that the inference should not be drawn that the disposal was in this case a separate and distinct use of land. The disposal by use as fuel should in this case properly be categorised as an integral part of the process of lime manufacture." "
I am not persuaded that it would be right to create in addition a planning control which would require that the introduction of any significant disposal of hazardous waste on land constitutes a change of use even where the disposal is an integral part, by reason of its use as fuel, of the manufacturing process. It does not follow from the great public concern about the disposal of hazardous waste, which is reflected in the Directives and United Kingdom legislation, that a separate and distinct use of land should inevitably be established for planning purposes when significant waste disposal is undertaken."[75]I need also to refer to the helpful decision of Lindsay J in R (Edwards) v Environment Agency and Rugby Cement Ltd [2005] EWHC 657 Admin. This case concerned the use of waste tyres as a substitute fuel at another cement-making works. Lindsay J first concluded that the change of fuel by itself could not amount to a project within the EIA Directive so as to require consideration for an Environmental Impact Assessment. He then rejected the notion that the change of fuel had created a project because the works had become in part a waste disposal installation. His reasoning drew upon Lowther and the cases referred to in it.[76]I reject the submissions of Mr Tromans that the proposal was for a waste disposal installation within any of the three classes upon which he relied. First, taking the proposal as defined by the application, it is not a disposal installation at all. It involves no burning. It merely stores and feeds the waste before it is burnt elsewhere. It is inherent in a waste disposal installation for incineration that the nature and purpose of the installation is that it itself disposes of waste by incineration. This simply is not such an installation, viewed in isolation from the larger entity of which forms a part. But the effects of the new installation on the way in which the larger works then operate are properly part of the effects to be assessed if this were within Schedule 2 or EIA development.[77]Second, where the new installation forms an integral part of a larger works, as here, the relevant class for the purposes of the Schedule to the EIA regulations is that which deals with extensions to whatever class of works those larger works fall into, unless the new works have changed the character of those larger works. It does seem to me unlikely that any particular project can properly fall within one class, come below the qualifying threshold for that class, and yet be caught by the definition of another class. The classes seem to me not intended to work that way.[78]Third, it cannot be said that the introduction of AWDF through the feed pipe from the silo has changed the character of those larger works into a waste disposal installation. This is where the decisions in Lowther and Edwards are so important, even though, so far as material, they deal only with a question of a material change of use. The principles and the factual assessment are the same as in this case. The Committee Report, it is accepted, deals correctly with whether or not there is a material change of use. That conclusion is directly relevant to the conclusion that the new installation could not and did not change the character of the works into a waste disposal installation or a combination of waste disposal installation and cement manufacture. The view that there would be no material change of use, a view which Mr Tromans accepts was lawfully arrived at, also shows what the development at issue is for; it shows its purpose or function, its nature and class. I also repeat that the works already burn Cemfuel, which is a hazardous waste, and are rightly not said to be a waste disposal installation on that account.[79]Fourth, and it is really a continuation of that reason, it cannot be said that, if viewed as part of a larger works, the proposal is for a waste disposal installation. Rather it is for the manufacture of cement or the use of fuel in the manufacture of cement, viewed as part of a larger works. It is, in reality, the nature of the larger works which affects the nature of the extension. In short, however viewed, it is not a waste disposal installation.[80]Fifth, and this continues that same reasoning, the fallacy in Mr Tromans' argument at root is that he is trying to face both ways at once. He contends that it is wrong to look at the proposal in isolation and I have some sympathy for that argument. It reflects reality not to look at it in isolation, but that is why it should be looked at as an extension to a cement manufactory. It is impossible to contend, looking at the larger picture, that the larger works are a waste disposal installation. The larger works are a cement manufactory and the proposal is for an extension to them, which relates to an integral part of the manufacture of cement and creates no change of use in it. The works in the application are not a waste disposal installation by themselves. Mr Tromans can only get to his conclusions by bringing in the use made of the material after it has left the new installation and by then ignoring the purpose of the burning of the fuel. There is no rational basis for stopping the examination of what happens at that point. If, as he has to contend, the larger picture is relevant, it is the larger picture as a whole which has to be examined and that shows the purpose of the extension is for a cement works and not a waste disposal installation.[81]Sixth, the nature of the language of the classes upon which he relies is that it is the purpose or the function of the installation which has to be examined, rather than the effect, when considering whether or not the development falls within an EIA class. The classes relied on are for waste disposal, and by a particular method. The effects matter for the purposes of the likely environmental effect rather than the class as such. It may be an effect of the operation as a whole that the waste is burnt but it is as a whole or in isolation an installation for the manufacture of cement and not for waste disposal.[82]Seventh, the activities are not for disposal of waste but recovery, if they are to be seen at all as waste related operations. Although it is right that the disposal/recovery distinction is not drawn in the EIA Regulations or Directive, it is drawn very clearly in the Waste Management Licensing Regulations and the associated Directive. I see no reason for not treating the EIA Regulations as embodying that common distinction in relation to the treatment of waste. I am supported in that by the analysis of Lindsay J in Edwards. He made the point that the burning of waste was recovery and not the disposal of waste. He said:
"28. Fourthly, there is an observable distinction in Community provision between waste disposal and waste recovery - see the Waste Framework Directive 75/442/EEC as amended by 91/156/EEC which speaks of waste as being 'recovered or disposed of' and see also Annex IIA - disposal - and IIB - recovery - of the Directive. The meaning of 'recovery' in connection with waste and the Waste Framework Directive was considered by the European Court of Justice in Commission of the European Communities v Federal Republic of Germany [2003] ECR I 1439, where at paragraph 45 the Court said:- "
'45. It follows from Article 3(1)(b) and the 4th Recital of the Directive that the essential characteristic of a waste recovery operation is that its principal objective is that the wastes serve a useful purpose in replacing other materials which would have had to be used for that purpose (ASA, cited above paragraph 69). "'The combustion of waste therefore constitutes a recovery operation where its principal objective is that the waste can fulfil a useful function as means of generating energy, replacing the use of a source of primary energy which would have had to have been used to fulfil that function' "See also Commission v Luxembourg [2003] ECR I 1554 at paragraph 37. "Whilst the Directive with which I am chiefly concerned, on the assessments of the effects of public and private projects on the environment, does not seem itself expressly to distinguish between waste recovery and waste disposal, or, indeed, to need to do so, I see no sufficient reason why there should not be imported into the later Directive, when it speaks of waste, that distinction which the earlier one impliedly requires to be drawn. "29. Fifthly, none of such domestic authorities which I was referred to, although none is wholly in point, does anything to support a view that incineration of waste as fuel (a fortiori when it is not the only or even the principal fuel) is properly to be regarded as waste disposal as opposed to waste recovery - consider R v Environment Agency ex parte Gibson [1999] Env LR 73; R v Durham CC and Lafarge Redland Aggregates Limited ex parte Elaine Lowther [2002] Env LR 349 CA and Castle Cement v Environment Agency [2001] Env LR 813." There is no anomaly created because an installation for the recovery of waste would be assessed by reference to the class of development into which it fell and the waste burning effects would be among those which fell to be examined.[83]Finally, hazardous waste. I shall assume that Mr Haine did not know the detail of the material at the time of reaching his decision on the EIA classes and that, without any expressed limit at all or further information, it would have been possible to construe AWDF as applied for as not excluding all possibility of hazardous waste. After all, he asked for details from Castle Cement on 30th October 2003, received no answer until 3rd December 2003 and his witness statements do not reveal what he knew from his extensive discussions with Castle Cement beforehand. I do not think that the role of the Environment Agency through the PPC variation would have permitted Mr Haine to ignore the need to ascertain what the material was, because it was for him to reach a view for the purposes of the screening opinion; that is his planning function.[84]I do not consider that that possibility meant that the proposal was for a hazardous waste installation as a matter of fact, nor that any judgment as a matter of fact and degree would have to be that the proposal was for hazardous waste disposal. But it could have been so concluded, if it had been a waste disposal installation at all, in the absence of any limitations or more detailed material.[85]Clearly the AWDF as defined by the Environment Agency is not hazardous waste. The Variation Decision at paragraph 13.3 specifically says that it is not hazardous waste. That is the only AWDF which can be lawfully burnt in the kiln. So as it turns out there is no hazardous waste proposal which has not been assessed. And indeed, the AWDF, as it was taken to be by Mr Haine at the time of the Committee Report, was non-hazardous MBM. It is irrelevant for this purpose that the works are in fact designed safely so that hazardous waste can be burnt as fuel already.[86]If it had been defined as it was later defined for the EA and if the later material had been provided in answer to questions seeking information for the purposes of seeing whether hazardous waste was involved, as I assume would have happened, the conclusion would have been that hazardous waste was not involved. No EIA would have been necessary. So fulfilling the duty to ensure that sufficient information was available to reach a view on whether this was EIA development would have led to the same conclusions that it was not. But if I am wrong on that point, there are still many reasons why this is not EIA in Schedule 2 development, other than that the waste is not hazardous.[87]I touch here on the argument over the meaning of AWDF in the planning application, the assumptions made by Mr Haine in the absence of a definition in the planning application, and tying the planning permission to what may have been assumed for the purpose of a screening opinion. As I have said, this argument does not attack the planning permission because it has not been tied to what was assessed. This is an allegation concerning the consideration of whether the development was EIA development.[88]I do not think that the County Council at that stage could properly rely on a then unknown degree of later control by the Environment Agency to exclude the need to reach its own view on possible adverse effects or likely significant effects. If the planning permission was different from that which the County Council had assumed for those purposes and in consequence could have fallen within a class which required a screening opinion or an EIA, I do not think that it is an answer to say that the local planning authority had relied upon the EA's prospective later involvement to make sure that there were no adverse effects when considering EIA questions. The need to avoid each trespassing on the other's function and to avoid duplication does not permit the abdication of responsibility under the EIA Regulations for carrying out the necessary assessments.[89]But I do not think that Mr Haine did rely on unknown future control by the EA, when dealing at this early stage with EIA questions. The EA role has been something of an ex post facto justification for the position ultimately reached. But again, if I am wrong about that, the position remains, for the reasons which I have given, that this development still falls outside any of the classes of EIA development or of Schedule 2. The development permitted is not different from that which Mr Haine assumed. And the lawfulness of the consideration given to that at the time does not become unlawful because of any failure to tie the permission to what was then assumed. Such a failure would lead to a somewhat different argument, with different factual components and discretions and is not the way the case was put, as I have already discussed. It was rather clearer at the later stage of grant what the EA involvement and control would be, and reliance then upon it fulfilling its role would have been wholly proper, when it came to setting planning conditions.[90]In any event, I consider that "AWDF" in the planning permission would be regarded as a phrase which had a technical meaning which would be proved by evidence to be limited to that which the Environment Agency and Committee Report considered. This is not the same as using extrinsic documentation to prove the meaning of the planning permission.[91]I would refuse relief on this last point anyway because the issue of "AWDF" has now been resolved by the EA, the variation decision has not challenged and, moreover, the inevitable result of quashing the permission on that ground would simply be a condition which achieved what is now the position. Accordingly, for all those reasons, the first ground fails. Ground 3[92]It is convenient here to deal with the third ground raised by Mr Tromans, which was that condition 3 on the planning permission was irrational. Condition 3 requires:
"Within 2 years of the cessation of mineral extraction at the Ribblesdale Cement Works, as defined in this permission, the buildings and items of plant herby permitted shall be removed from the land and the site restored."
It is said that that is unreasonable because it would be possible, without contravening the condition, to continue burning AWDF after the cessation of cement manufacture at Ribblesdale because the condition ties the removal of the new installations to the cessation of mineral extraction rather than to the cessation of cement manufacture. AWDF could be burnt, it was said, independently of whether cement was being manufactured at all. It was irrational not to impose condition 3 in a form which tied the burning of AWDF and the retention of the equipment to the manufacture of cement. Such a condition had been imposed on two other permissions at the site, though not on most of them.[93]There is nothing in this point. The condition itself meets the test in Newbury District Council v Secretary of State for the Environment [1981] AC 578 for a lawful condition within the scope of the discretionary power in section 70(1) of the 1990 Act. It fulfils a planning purpose; it relates reasonably to the proposed development and is not irrational. It would procure the removal of the equipment at the same time as the rest of the equipment and structures became redundant on the site. The real complaint is that a different condition should have been imposed which would give greater comfort to the claimant. Such a condition as she says should have been imposed is not irrational and would have been a perfectly legitimate condition. That does not of itself show that the one imposed is unlawful and that the planning permission in its absence is unlawful.[94]The more powerful answer to the claimant's point is that were AWDF to be burnt at a time when cement was not being manufactured, whether in the short or long term, that would involve a material change of use in the cement manufacturing works. The use would become a dual use for waste incineration and cement manufacture or a sole use for incineration of waste. That is a change which would require a planning permission, in the absence of which enforcement proceedings would be necessary just as much as if there had been a breach of a condition. The Second Ground[95]I turn to the second main ground raised by the claimant. This concerned the consideration by the County Council of its Minerals and Waste Local Plan and the concept of Best Practical Environmental Option (BPEO). Paragraph 4 of Schedule 2 of the Waste Management Licensing Regulations 1994 SI/1065, which implements certain EC waste obligations, imposes a duty on the County Council as a planning authority as follows:
"2(1) Subject to the following provision of this paragraph, the competent authorities shall discharge their specified functions, insofar as they relate to the recovery or disposal of waste, with the relevant objectives. (2) Nothing in sub-paragraph (1) above requires a planning authority to deal with any matter which the relevant pollution control authority has power to deal with."
The specified functions include the determination of planning applications "in so far as they relate to the recovery or disposal of waste". The relevant objectives at paragraph 4 include:
"4(1) For the purposes of this Schedule, the following objectives are relevant objectives in relation to the disposal or recovery of waste -- (a) ensuring that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment... (b) implementing, so far as material, any plan made under the plan-making provisions. (2) The following additional objectives are relevant objectives in relation to the disposal of waste... (a) establishing an integrated and adequate network of waste disposal installations, taking account of the best available technology not involving excessive costs..."
They also include, in relation to plan making provisions, the prevention or reduction of waste, and recovery by recycling or use as energy. Mr Tromans put particular weight on the reference to "implementing... any plan made under the plan making provisions". These plans include the National Waste Strategy 2000 and the Lancashire and Minerals and Waste Local Plan (LMWLP). Mr Tromans submitted that the application related to the recovery or disposal of waste; if not disposal, it was recovery through its use as fuel.[96]The relevant provisions of the LMWLP were first of all Policy 97:
"Proposals for the incineration, treatment, handling or transfer of animal, clinical, industrial and special waste will be permitted if..." "iv) they will not give rise to unacceptable adverse impacts on people or the environment..." "v) they include facilities for the recovery of energy where appropriate."
The reasoned justification said:
"14.65 This policy is intended to deal with a range of proposals for the management of non-municipal waste which is biodegradable, hazardous and/or is otherwise difficult to handle or manage. Some of the waste which would be managed by the facilities to be considered under this policy will have the potential to significantly impact on the environment. They will include wastes which because of their hazardous or objectionable nature require management at specialised dedicated facilities." "14.69 In considering proposals involving incineration under this policy regard will be given to the matters set out in paragraphs 14.56 and 14.57-14.64 above."
The reasoned justification showed that this policy was not confined to hazardous waste but included all types of difficult waste. In particular it covered the incineration of BSE carcasses and Over Thirty Months Scheme material. The reasoned justification also cross-referred to BPEO and the National Waste Strategy, saying that all proposals within Policy 97 would require environmental assessment.[97]Paragraph 14.56 provided:
"In considering any proposal for new incineration facilities under Policy 96 or Policy 97, all of which would require an Environmental Impact Assessment, the following National and European policies and principles will be considered, in addition to the environmental and transportation policies of the Plan: whether the proposal is BPEO for the waste stream under consideration: the 'relevant objectives'; the extent to which the proposal contributes to; regional and sub-regional self-sufficiency in waste management facilities; the proximity principle; movement up the waste hierarchy. Developers will be expected to include BPEO assessments of their proposals within or accompanying Environmental Impact Assessments."
It is also to be noted that that paragraph says that the waste planning authority should not deal with those matters which the pollution control authority had power to deal with.[98]The LMWLP also set out a convenient summary of parts of the National Waste Strategy at paragraph 12.28 as follows:
"In summary, the national position on the waste strategy is as follows: i) the key principle underpinning sustainable waste management is the concept of the Best Practicable Environmental Option. ii)a supporting principle is the waste hierarchy; the aim being to manage waste further up the hierarchy: • reduction • reuse • recovery -- recycling -- composting -- energy recovery • safe disposal iii) another supporting principle is the proximity principle, ie waste should be managed as close to where it is produced as it possible."
[99]The waste hierarchy in Part 1 of the NWS placed reduction in waste at the top of the hierarchy, followed by reuse, recovery, including recovery as energy, and disposal. The proximity principle required waste to be disposed of as closely as possible to the place of its arising.[100]The meaning of BPEO was discussed in the NWS 2000. Because waste was not a single type of material and it differed by source and location, by its potential for risk in transport and treatment at different levels within the hierarchy and it bore different costs economically, the question of what was the BPEO for any particular waste stream had to be the result of a considered view for each stream. BPEO involved taking a view as to what was the most beneficial or least damaging option for the environment as a whole in the long and short term and at an acceptable cost. The proximity principle provided a link, according to the NWS, between BPEO and the hierarchy. It was particularly relevant to hazardous waste because of the risks of transport but the relative paucity of sites able to handle them safely counterbalanced that aspect. Long-distance travel also meant that a BPEO could be fixed by the costs of a solution higher up the hierarchy. On the other hand, such travel might be the price which had to be paid to achieve a solution higher up the hierarchy. I emphasise that the hierarchy is but an aspect of the BPEO for any particular waste stream.[101]The County Council and Castle Cement drew attention to Policy 61, which dealt with the cement manufacturing plant at Ribblesdale specifically. It set out the relevant considerations, none of which are germane to this argument, but the reasoned justification pointed out that the control of emissions to air was a matter for control by the Environment Agency. I was also referred to Policy 75, which dealt with proposals for mineral related development involving manufacturing. These were to be within the approved operational boundary, as this was, subject to not creating an unacceptable adverse impact on people or the environment. The other criteria were clearly satisfied here.[102]Mr Tromans submitted that the County Council was obliged by Schedule 4 of the Waste Management Licensing Regulations 1994, when determining the application, to consider the risk to human health, and ensuring that it was avoided, and to consider the risk to water, air, soil and plants and animals. This was its duty because those were among the relevant objectives with which, in the clumsy language of the Regulations, the function of determining planning applications had to be discharged. I note that one of the relevant objectives for the plan-making process was encouraging the use of waste as an energy source. Policy 97, he submits, is a relevant policy which had to be considered in the discharge of that function. BPEO principles had to be applied because they were a national policy in a national plan, the NWS, and are indeed in the LWMLP. It was not at issue, at least between the claimant and Castle Cement, that the AWDF was waste upon arrival at the Ribblesdale Works.[103]The role of the Environment Agency through Schedule 4, paragraph 2.2, was not an answer to any non-application of BPEO by the local authority because the purpose of the provisions, read as a whole, was to ensure the maintenance of a balance between the functions of the Local Planning Authority and the Environment Agency. The former had a wider role, including land use, the provision of waste facilities and plan making. Policy 97 required the Local Planning Authority to address the appropriateness of the location in terms of whether it was an industrial site or a rural location with shared farm access. Mr Tromans' complaint was not so much about the way in which Policy 97 had been considered in domestic law but about the effect of its relationship to the Waste Framework Directive 91/156/EEC at Article 73 (which required the production of Waste Local Plans which met the requirements of the Waste Framework Directive).[104]He also placed some reliance upon on the decision in Derbyshire Waste Ltd v Blewett [2004] EWCA Civ 1508 Env LR 15. But this case concerned a planning permission for a landfill site, for the disposal of waste, and the legal background is different on that account. I was also referred to passages which deal with hierarchy rather than the essential point here, which is the approach to BPEO.[105]Seen as a purely domestic planning law point, Mr Tromans was not inclined to press the argument that Policy 97 was a policy which had been ignored because he was inclined to accept Ms Patterson QC's point for the County Council that the criteria within Policy 97 had in fact been considered in various places in the Committee Report. This ground, unlike the first ground, relates to the time at which the Committee was considering matters.[106]Mr Tromans was right to approach it in that way and for that reason. It is unnecessary to elaborate the point but the Committee Report does consider the suitability of the location, which is obviously governed by the physical and functional relationship to the very large scale cement works and quarry. The report considers highways and site access, the appropriateness of the silo, its location and visual impact on the site and it considers the question of adverse environmental impacts. Wholly consistently, it recognises the role of the EA in preventing them. The proposal clearly relates to the recovery of energy from waste.[107]But I also accept the more fundamental point made by the County Council and Castle Cement. This is a reflection of the conclusions which I have reached in relation to whether this proposal was for a waste disposal installation for incineration. Policy 97 demonstrates the clear contemplation that development within it will be EIA development. Although the project for which planning permission was sought is related to the use of waste as an energy source, ie to its recovery, it is simply not a proposal "for the incineration" of animal waste. I assume that MBM is "animal waste" within Directive 90/667/EEC as the reasoned justification contemplates (and I am assuming without finally deciding that the County Council's reservations as to whether MBM is waste on arrival is unjustified). It seems to me, and this is a pointer in the same direction, that the development falls within Policy 61 and 75 and, although I accept that they are not necessarily mutually exclusive, that points away from the project falling within Policy 97.[108]The BPEO point fails in part for the same reason. There is no obligation to consider BPEO in this instance because of any provisions of the LMWLP. Those provisions which appear in the reasoned justification to Policy 97 refer back to paragraph 14.56 and that relates only to proposals for new incineration facilities under Policy 96 and Policy 97. It does not relate to the type of proposal at issue here for it is not a new incineration facility, nor is it within Policy 97.[109]But the BPEO point also fails, taking the NWS as a plan made under the Environment Protection Act 1990, Section 44, and so within the plan-making definition in Schedule 4 Part 1 of the Waste Management Licensing Regulation and hence within paragraph 4.1(b), with the result that implementing the National Waste Strategy is an objective of the proposal, once it is seen as "relating to" waste recovery. BPEO ought then to have been considered, and I accept that there is no specific consideration of BPEO by the Local Planning Authority. But it is then difficult to see -- and Mr Tromans' submissions here are somewhat less than compelling -- how specific consideration of BPEO could possibly have led to a different conclusion on the planning application. It is not suggested that the AWDF could have been prevented from arising, or reduced. Recycling and recovery are equal in the next tier of the hierarchy and the proposal relates to recovery. Recycling is not suggested either, nor is composting, even though within that next tier it might be preferable for some wastes. Disposal is the lowest tier and this is not disposal, at least in any context where, as here, recovery is contrasted with it. The proximity principle is of particular importance where disposal is the aim because of the undesirability of waste being transported a long way. But the balance is plainly different where there is a recovery operation, as the BPEO description makes clear. There is a trade-off between the advantages of recovery of waste through its use as a fuel and the travel and other environmental costs. This trade-off does not apply to disposal.[110]Mr Tromans therefore was reduced, in saying that there might have been a different outcome, to hypothesising about disposal nearer to Staffordshire, where Pointons operate, or recovery in other unidentified cement works. In the absence of any material suggesting that a point of real practical significance was overlooked, and there is none, I am wholly unpersuaded by this argument. It cannot be that a Local Planning Authority dealing with proposals has to consider all sorts of other possibilities, which no one has ever suggested exist, before it can conclude that recovery is a proper way to deal with material for which no better solution has been proposed.[111]Its task would be otherwise be endless. There must be a limit to the extent to which a waste planning authority has to trawl around the country to see what else could be done with a waste stream before it reaches a conclusion on what it is satisfied is an environmentally acceptable application which relates to the recovery of waste. The reality is that it considered the relevant objectives in paragraph 4 of Schedule 4 and it considered its own Waste Local Plan. Any specific consideration of BPEO would inevitably have led to the same conclusions on the material before me.[112]I emphasise in this context that the waste strategy itself shows that decisions should be taken on the basis of a local assessment of BPEO, which itself would vary from case to case, waste stream to waste stream, time to time and area to area. So there is no material point in the National Waste Strategy which was overlooked in practice, whatever theorising might be possible. In any event, BPEO is not the ruling consideration but one of a number of objectives wich may need to be balanced. I can see no basis on which it could be said that there were any BPEO factors which could have led to a difference balance here.[113]This is not a conclusion on discretion but rather a conclusion on the absence of any material error because the omission was not an omission to consider any known material. Obviously if the matter were a point on discretion, the same factors would have lead me to refuse relief on this point.[114]It is worth pointing out that the EA did consider the same relevant objectives in its Variation Decision. It concluded that there would be no adverse environmental effects and gave broad consideration to the National Waste Strategy. It pointed to the move which the NWS encouraged away from disposal of waste towards its recovery through its use as a fuel. The EA concluded that trial use of AWDF was entirely consistent with the NWS which it was seeking to implement and as a national rather than a local body. I point that out because it was in a better position to take a broader view on the BPEO point if that were necessary.[115]For all those reasons this application is dismissed.[116]Yes, Ms Allan?[117]MS ALLAN: My Lord, I wish to apply for the costs.

MR JUSTICE OUSELEY: Yes.

[119]MS TOWNSEND: I too have an application for costs. I do not know if you want to hear my application before hearing from my learned friend.

MR JUSTICE OUSELEY: Well, I will see what he has to say first of all about the first set of costs.

[121]MR TROMANS: My Lord, there is no basis on which I can reply to the application for costs from the Lancashire County Council. I would very strongly however resist the other application.

MR JUSTICE OUSELEY: I will hear what Ms Townsend has to say.

[123]MS TOWNSEND: I am obliged. I make three points in support of my application. It is not usual to grant an interested party their application for costs. The first two of the points that I make go to my submission that Castle Cement has a separate interest that of the County Council to represent and that therefore their presence in these proceedings was fully justified. The first point then, my Lord: the case made by Castle Cement -- and, my Lord, you will know, although it was some time ago, I did not argue the case for Castle Cement.

MR JUSTICE OUSELEY: Yes, I do remember that.

[125]MS TOWNSEND: The case made -- bear with me in terms of the content of the submissions being made -- but doing my best, the case made by Castle Cement included the argument, founded on the event that you found the decision-making process of Lancashire County Council flawed, that you should nevertheless exercise your discretion not to quash the planning permission. This was an argument that it was essentially for Castle Cement to make and to develop and my learned friend Mr Findlay did that by drawing your attention to the implications of the quashing order and indeed the acknowledgment did proceed.[126]MR JUSTICE OUSELEY: It did not succeed in reality. Not so as to affect the discretion on costs. It succeeded in some parts but a fundamental concern here was that if the screening opinion point had been decided adversely to him, the discretion of the court should not have been exercised. Although it was not necessary for me to reach a conclusion on that, I was not in the end, as I think the judgment makes clear, sympathetic to that.[127]MS TOWNSEND: That follows from your Lordship's judgment that the scope --

MR JUSTICE OUSELEY: Well, the main essential point was not one which was persuasive.

[129]MS TOWNSEND: Well, my Lord, it would be my submission that in the question of costs, the question that your Lordship has to address is whether there is a separate interest to represent and, in the light of the criticisms that might have been made of the decision-making process, and indeed were made by your Lordship, there was a risk that your Lordship would find that the scope of the decision that was facing Mr Haine at the relevant time was broader than your Lordship in the event found and in those circumstances there is a real argument to be made on discretion. That is the extent of my point.[130]The second point goes to the same submission, which is the separate interest to represent and that is the nature of claimant. I do not wish to the cast any aspersions on her at all as an individual, but she is a veteran campaigner, to use my learned friend Mr Findlay's words in the skeleton, and that, coupled with the fact, as I understand it, that my learned friend Mr Findlay made, as it were, most of the running in defence of this decision, shows that the interested party passes the test to be a true defendant in this case. So I aim to persuade your Lordship that, in those two respects, Castle Cement have a separate interest to represent.[131]My third point, my Lord, is, with the greatest of respect, to remind your Lordship the question of where costs fall are entirely for your Lordship's discretion and I do not for a minute presume to offer guidance on the correct principles. Your Lordship knows Bolton extremely well. I think your Lordship was counsel for the Secretary of State in that case.

MR JUSTICE OUSELEY: So the report says.

[133]MS TOWNSEND: However, your Lordship will recall that the context of that case was a practice that had found that second defendants, as it were, were awarded their costs and the fundamental point of that case is that there is no rule and so if your Lordship were minded, as I hope you are, that there is an open discretion here, you will have regard to all the circumstances of the case and grant my application.[134]MR TROMANS: My Lord, very briefly, I want to address you on the points--

MR JUSTICE OUSELEY: I do not want to hear from you.

[136]There is application for costs against the claimant by Castle Cement Limited in addition to the application for costs made by the County Council, which application is not disputed.[137]Ms Townsend recognises that a second award of cost is not usual but submits that there was a separate interest which Castle Cement had which required that it should be represented. There were an number of points it pursued which the County Council did not pursue. Ms Townsend also draws attention to the relationship between Castle Cement and the claimant whereby the claimant is described as a veteran campaigner against the development of the works and following which, Castle Cement sees itself as having been the true defendant in these proceedings.[138]I do not regard those points as justifying a second order for costs here. I accept that Castle Cement had a separate interest, which entitled it to be separately represented. But in relation to the arguments which have succeeded, it did not have at separate interest which required it to be represented. It raised, it is true, a number of points which it would not have been for the County Council to raise. In particular, it raised points concerning discretion were the County Council's defence to fail. It would not have been unrealistic for it to recognise that there were some potential fragilities in the approach of Lancashire County Council. However, the discretional point which it finally raised related to how the court should approach a conclusion that a screening opinion was necessary but had not been provided. Although I did not reach a final conclusion on that point, I did not find the arguments addressed by Mr Findlay on that particularly persuasive. Indeed, I would have been minded to hold against him. That is not a basis which can possibly support the award of a second round of costs.[139]As to interaction between the claimant and Castle Cement, it is to be remembered that, veteran campaigner or no, this was an application which she was granted permission to bring and it is not an application which could in any way be regarded as frivolous or vexatious. It was a point properly argued, raising a number of points. So her relationship as a veteran campaigner, as she is, does not require the court to be less sympathetically disposed towards her. If Ms Patterson had been here, and Mr Findlay, the question of who had been the true defender to the proceedings would have been one about which the two of them could have scrapped. I do not think that the court should be engaged in the process of apportioning responsibility for a success. Each contributed to the arguments and it would be wrong do say that Mr Findlay did not make some points usefully, in addition to those made by Ms Patterson. But I do not think that that, which is almost inevitable where you have an interested party, is sufficient to warrant the exercise of my discretion to order a second rounds of costs here. So that application is rejected. There will be simply an order for the payment of: Lancashire County Council's costs. To be assessed if not agreed?[140]MR TROMANS: Subject to detailed assessment.

MR JUSTICE OUSELEY: Subject to detailed assessment if not agreed.

[142]MR TROMANS: Could I trouble your Lordship by dealing very briefly with the question of permission to appeal. My Lord, I do not wish to launch into an application to your Lordship on an ill-formed basis without being properly prepared. I would prefer to have the opportunity to consider the transcript. I therefore wonder if I could ask your Lordship for the time for the appellant's notice to be extended to 14 days from receipt of the transcript?[143]MR JUSTICE OUSELEY: Yes. Any objection to that? I will extend the time for applying for permission to appeal to 14 days after receipt of the transcript.[144]MR TROMANS: My Lord, I am very grateful.

MR JUSTICE OUSELEY: Thank you very much to you all.