Baker, R (on the application of) v Bath and North East Somerset Council [2009] EWHC 3320 (Admin)

[2009] EWHC 3320 (Admin)Case No CO5787/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15 December 2009
Before
HIS HONOUR JUDGE BIRTLES
Between
The Queen on the Application ofClaimantLOUISA BAKERClaimant
Jeremy Hyam (instructed by Richard Buxton Environmental & Public Law) for ClaimantRichard Langham (instructed by the Head of Legal Services, Bath & North East Somerset Council) for DefendantHearing Hearing dates: 28 October 2009
Judgment
[1]This is a rolled up hearing of the Claimant’s claim for judicial review pursuant to a consent order. The hearing came before me on 28 October 2009 and I reserved judgment until today.[2]The Claimant is represented by Mr Jeremy Hyam of counsel. The Defendant is represented by Mr Richard Langham of counsel. I am grateful to both counsel for their written and oral submissions.

History

[3]On 11 October 1999 the Defendant granted the First Interested Party a ten year permission to use a 2.1 hectare field off Charlton Field Lane near Keynsham, Bristol as a waste composting site. The number of the planning permission is 97/02626/MINW: Trial Bundle pages 90-95. This is identified as site Y on map 1 at Trial Bundle page 77. The temporary nature of the permission was to enable the Defendant to review the impact of the development and to maintain the openness of the Green Belt (condition 19). The permission is due to expire on 11 April 2010. Other conditions limited the type of waste to be imported (condition 13) and the number of heavy goods vehicles (HGVs) that could enter the site per day (condition 16). A waste management licence was issued on 20 January 2001 by the Environment Agency: Trial Bundle pages 96-126.[4]The Claimant alleges that significant pollution problems began in 2003. This coincided with the variation of planning permission of 12 February 2003 to allow the height of windrows (piles of maturing waste) to increase from three to six metres (condition 10, permission number 02/02722/MINW) and an increase in May 2003 to the maximum level of waste to be stored on site under the waste licence of the site from 420 to 800 tonnes: Trial Bundle pages 97-98. The Claimant relies upon a summary of regulatory breaches at Trial Bundle pages 227-228.[5]In 2005 Hinton Organics (Wessex) Limited made three planning applications:(1) No. 05/1993/FUL: to double the size of a concrete area from 2048 square metres to 4096 square metres, and to vary a condition of planning permission 97/02626/MINW of 11 October 1999 so that the site could accept wood waste;(2) No. 05/00723/VAR: to vary conditions 13 and 16 of permission 97/02626/MINW to allow the permanent recycling of cardboard waste and an increase in truck movements at the site;(3) No. 05/03566/MINW: to compost pre-shredded and pre-screened organic waste at Lime Kiln Farm, an associated site about 1 kilometre from the main waste site.[6]The permissions were granted on 8 November 2006: Trial Bundle pages 137-155. These permissions were subsequently challenged by the Claimant in judicial review proceedings and quashed by Mr Justice Collins on 19 February 2009 due to the Defendant’s failure to comply with the environmental impact assessment (EIA) regime including the EIA Directive 85/337/EEC: R (Baker) v. Bath and North East Somerset Council [2009] EWHC 595 (Admin) at paragraph 55. In particular, the Defendant failed to carry out a screening process for the development as required by regulations 4-7 of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (“the 1999 Regulations”).[7]Because of a disagreement between the parties Mr Justice Collins considered the matter further on paper and made an order dated 1 May 2009: Trial Bundle page 229. He quashed all three planning permissions (the third, fourth and fifth permissions). The Secretary of State and the Defendant had permission to appeal to the Court of Appeal. The time for appealing expired on 22 May 2009. Neither the Secretary of State nor the Defendant appealed.[8]The Interested Parties have continued to operate at the Charlton Field Lane waste site despite the fact that there is no extant planning permission other than the original first planning permission dated 11 October 1999 and the second planning permission dated 12 February 2003. The Claimant alleges that the continuing operations contribute to local environmental problems and that the operations are being carried on without an assessment under the EIA Directive.[9]The Claimant alleges that the Second Interested Party is required to restore land to the south of the waste site (marked Z on map 1: Trial Bundle page 77), which includes under condition 4 of permission No. 97/02620/MINW (Trial Bundle pp82-89) to maintain pre-existing ground level. The Claimant alleges that the Second Interested Party, its predecessor, and the First Interested Party, have left this land in such a poor state that where there was once a valley and distant views looking north there is now a three to four metre expanse of waste and soil: Trial Bundle pages 77B-E. The Claimant alleges that the Defendant has failed to take enforcement action for the breach of a condition.[10]The Claimant also complains that the First Interested Party has spread a considerable volume of waste on an adjacent field to the east of the waste site without planning permission. This land is designated a Site of Nature Conservation Interest: Trial Bundle pages 203-5. The Defendant contends that the material spread is compost and so does not require planning permission. The Claimant does not accept this and argues that much of the material spread contains waste plastics and poorly decomposed organic matter. She also alleges that the spreading and subsequent ploughing up of the field has resulted in the disruption of a valuable wildlife site. The Claimant alleges that the Defendant has been informed of the potential harm to this area on a number of occasions but has failed to act: Trial Bundle pages 131; 140; 151 and 238-9.[11]Finally, the Claimant alleges that the land marked “Z” and “AA” on map 1: Trial Bundle page 77 has archaeological and historical interest. The projected line of Roman Road RR450 runs across the land: Trial Bundle pages 232-233. The Claimant alleges that the Defendant’s planning department has been advised of this and requested to make an investigation of the archaeological value of the site and surrounding land but has failed to do so.[12]The Claimant has requested the Defendant to take enforcement proceedings for some of the alleged breaches in a letter dated 28 November 2008: Trial Bundle pages 230-231. The Defendant replied in its letter of 12 March 2009: Trial Bundle pages 235-236. The pre-action protocol letter was sent on 30 March 2009: Trial Bundle pages 238-241. The Claimant regards the unlawfulness as a continuing failure by the Defendants. However, should a date be required for the purpose of Part 54.5 of the Civil Procedure Rules, the Defendant’s letter of 9 April 2009 confirming that no enforcement action was to be taken is to be regarded as such a start date: (letter not in Trial Bundle pp71-76F).[13]By letters dated 7 August 2009 the Defendant adopted screening opinions to the effect that the planning applications numbers 05/00723/VAR and 05/01993/FUL were not EIA development for the purposes of the EIA Directive 85/337/EEC. On 3 September 2009 the Defendant issued detailed reasons for the negative screening opinions: Trial Bundle pages 306 and 379-85. Following the adoption of the negative screening opinions officers recommended that the fourth and fifth composting site applications should be granted: Trial Bundle pages 602-619. The matter was due to be considered by the Development Control Committee on 30 September 2009. However, the Defendant realised that the screening opinions of 7 August 2009 were not properly authorised under its adopted scheme of delegation to certain office holders and by a letter dated 6 October 2009 wrote to the Claimant’s solicitors stating this and not objecting to an amendment to the grounds dealing with this point and accepting that the judge hearing the rolled up hearing should quash the screening orders as unlawful because of the absence of authorisation for delegation to the Development Manager who authorised them. The parties therefore agree that I should quash the screening opinions of 7 August 2009. I do so.[14]The current position therefore is that there are no lawful screening opinions in existence where the Defendant has indicated in its letter of 6 October 2009 that it intends(a) to carry out the screening process as soon as possible; and(b) will, before fresh screening opinions are made send copies of all the advice from officers which the decision-maker will consider (which advice will include responses to the Claimant’s draft amended grounds challenging the quashed screening opinions on substantive grounds) to the Claimant for comment: Trial Bundle pages 320-322.

The Law

[15]The Claimant submits that the operations at Charlton Field Lane are EIA development. As such these operations fall within paragraph 11 (b) of Annex II of the EIA Directive 85/337/EEC as an installation for the disposal of waste. The relevant legislation includes the EIA Directive. Article 2.1 provides as follows:
“Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue inter alia of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effect. These projects are defined in Article 4.”
Article 4 applies to projects which fall within Annex II.[16]Mr Hyam also refers me to paragraphs 2, 3 and 5 of Directive 97/11/EEC which amends the 1985 Directive. Those provisions say this:
“(2) Whereas, pursuant to Article 130r(2) of the Treaty, Community policy on the environment is based on the precautionary principle and on the principle that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay; (3) Whereas the main principles of the assessment of the environmental effects should be harmonised and whereas the Member States may lay down stricter rules to protect the environment; ,… (5) Whereas projects for which an assessment is required should be subject to a requirement for development consent; whereas the assessment should be carried out before such consent is granted;”
[17]The two Directives were implemented in English law by the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 25(2) 1999 (SI 1999 No 293). Regulation 25 (2) provides as follows:
“(2) Screening opinions of the local planning authority Where it appears to the local planning authority by whom or on whose behalf an enforcement notice is to be issued that the matters constituting the breach of planning control comprise or include Schedule 1 development or Schedule 2 development they shall, before the enforcement notice is issued, adopt a screening opinion.”
[18]Schedule 2 provides descriptions of development and applicable thresholds and criteria for the purposes of the definition of “Schedule 2 development”. It is in the form of a table and paragraph 11 (b) of that table provides that “installations for the disposal of waste (unless included in Schedule 1)” which exceed the thresholds in the second column are “Schedule 2 development”. Paragraph 13 Column 2 of the TCP EIA Regulations 1999 provides at subparagraph (ii) that in relation to a development of a description mentioned in a paragraph in Schedule 1 indicated below, the thresholds and criteria in Column 2 of this paragraph of this table indicated below applied to the change or extension (and not to the development as changed or extended). In the light of Mr Justice Collins’ decision which effectively struck out the words I have underlined, the Defendant accepted it had to adopt screening opinions for 05/00723/VAR and 05/01993/FUL because the development fell within this paragraph as so interpreted.[19]The Department for Communities and Local Government Circular 02/99 on Environmental Impact Assessment paragraphs 32-34 provides as follows:
“General considerations 32. The local planning authority must screen every application for Schedule 2 development in order to determine whether or not EIA is required. This determination is referred to as a “screening opinion”
. In each case, the basic question to be asked is “Would this particular development be likely to have significant effects on the environment?”. The following paragraphs indicate the considerations which should be taken into account when making that determination. 33. As a starting point, authorities should study Schedule 3 to the Regulations (reproduced at Annex B to this Circular) which sets out the “selection criteria” which must be taken into account in determining whether a development is likely to have significant effects on the environment. Not all of the criteria will be relevant in every case. It identifies three broad criteria which should be considered: the characteristics of the development (eg its size, use of natural resources, quantities of pollution and waste generated); the environmental sensitivity of the location; and the characteristics of the potential impact (eg its magnitude and duration). In the light of these, The Secretary of State’s view is that, in general, EIA will be needed for Schedule 2 developments in three main types of case: (a) for major developments which are of more than local importance (paragraph 35); (b) for developments which are proposed for particularly environmentally sensitive or vulnerable locations (paragraphs 36-40); and (c) for developments with unusually complex and potentially hazardous environmental effects (paragraphs 41-42).”[20]Paragraph 4 of the same Circular says this:
“The number of cases of such developments will be a very small proportion of the total number of Schedule 2 developments. It is emphasised that the basic test of the need for EIA in a particular case is the likelihood of significant effects on the environment. It should not be assumed, for example, that conformity with a development plan rules out the need for EIA, nor is the amount of opposition or controversy to which a development gives rise relevant to this determination, unless the substance of opponents’ arguments reveals that there are likely to be significant effects on the environment.”
[21]Regulation 2 (1) of 1999 Regulations defines what a “sensitive area” is. The three sites in the present case are not in such an area. I do not find paragraph 39 of Circular 02/99 of assistance in this particular case.[22]The indicative thresholds in the Circular for waste disposal installations which are likely to have significant effects on the environment are a capacity of more than 50,000 tonnes per annum or a site of 10 hectares or more. Sites taking smaller quantities of these wastes, sites seeking only to accept inert wastes (demolition rubble etc) or Civic Amenity sites are unlikely to require EIA: Circular 02/99 paragraph A36. None of these criteria apply to this site.[23]Deciding whether actual/anticipated environmental effects are/will be significant is a matter of judgement for the local planning authority, subject to review by the Administrative Court on conventional judicial review grounds.[24]Planning permission cannot be granted for an EIA Development unless an environmental assessment has been carried out: 1999 Regulation 3 (2).[25]Ardagh Glass Limited v. Chester City Council and Others [2009] EWHC 745 (Admin) establishes that, where EIA development has taken place without planning permission (and assessment), an assessment must be carried out: paragraph 94-99. In my judgement Ardagh Glass Limited clearly contemplates that the development(i) will continue in existence while the assessment process takes place; and(ii) may well continue for good. The development will continue for good if either the developer submits a retrospective application with an environmental statement and the local planning authority decides to grant permission or the local planning authority serves an enforcement notice, the developer makes a ground (a) appeal accompanied by an environmental statement and The Secretary of State allows the appeal. An appeal against an enforcement notice suspends it. Regulation 25 of the 1999 Regulations expressly contemplates enforcement notice appeals in relation to EIA development. The Issues Issue 1: The Claimant’s application for an order quashing the Defendant’s negative screening opinions of 7 August 2009.

The Issues

[26]Both parties are agreed that I should quash these screening opinions and I do so. Issue 2: The Claimant’s application for a mandatory order requiring the Defendant to take effective enforcement action against the Interested Party or in the alternative a declaration that the Defendant’s failure to take effective enforcement action has been unlawful.

Issue 2:

[27]In the course of his submissions Mr Hyam helpfully provided me with a copy of his draft order.[28]In his submissions Mr Hyam referred me to the history and to Commission of the European Communities v. Ireland C-215/60 at paragraphs 34-38; 49; 53; 57 and 59. Mr Hyam submits that in this case there has been a three year delay to reach a screening process in order to decide whether an EIA is necessary. That has still not happened. Therefore he submits that enforcement action against the Interested Parties is necessary until the Defendant has carried out a new screening process.[29]Mr Hyam also refers me to the Ardagh Glass Limited case and especially at paragraphs 37-38; 64 and 111. Mr Hyam submits that the discretion of a local planning authority to take enforcement action is a narrow one where EIA development is involved.[30]Mr Hyam finally submits that the Defendant has had more than enough time to carry out a legal screening process to decide if EIA is needed and there has been a continuing breach of planning law as no planning permission has been granted. He submits that there has been first, irrationality on the part of the local planning authority in not taking enforcement action (see his skeleton argument at paragraphs 7-19) and second, that there has been a failure by the Defendant to enforce European Union law (see his skeleton argument at paragraphs 20-21).[31]Mr Langham for the Defendant submits first, that as a matter of discretion I should not make a mandatory order against the Defendant either to take enforcement proceedings or serve a stop notice. He rightly points out that the effect of an enforcement notice is not to suspend the operation of the development pending the hearing of an appeal against that enforcement notice. He also points out that there is a very real possibility of the Defendant granting planning permission in the near future when it has adopted authorised screening opinions.[32]Mr Langham then submits that the Ardagh case can be clearly distinguished on the facts. There was no doubt in that case that the glass factory was clearly EIA development and therefore required an assessment. The factory was about to become immune from enforcement action and therefore lawful in terms of planning control. Furthermore, His Honour Judge Mole QC refused to order the Defendant to serve a stop notice in that case: see the submissions of Mr McCracken QC at paragraph 38 and HH Judge Mole QC’s conclusion at paragraph 111.[33]Third, Mr Langham submits that at least part of the delay following the judgment of Mr Justice Collins in the earlier case arose because of the delay in perfecting the order and permitting the time limit for appeal to expire. He submits that the Defendant was fully entitled to wait to see whether the Secretary of State was going to appeal the judgment of Mr Justice Collins before obtaining screening opinions for the development.[34]Finally, Mr Langham refers me to the Claimant’s summary of regulatory breaches which is found at Trial Bundle pages 227-228. He points out that many of these breaches are outside both the planning regulations and therefore planning control. They are therefore outside the scope of this case. For example, breaches of the waste management licence under the Environmental Protection Act 1990 are nothing to do with planning control and cannot be the subject of an enforcement notice in this case. He also refers me to the reports to the Defendant’s Development Control Committee for its meeting on 30 September 2009: Trial Bundle pages 600-634 which make it clear that the Defendant’s officers did say to the Development Control Committee that the grant of planning permission should take account of all facets of other regulatory regimes. Although these reports were withdrawn because the screening opinions were not properly authorised there is no reason for me to believe that the same approach (the correct approach) will not be taken by the officers when their new reports are prepared following the obtaining of lawful screening opinions.

Discussion

[35]I prefer the submissions of the Defendant to those of the Claimant in this particular case and remind myself that each case is fact sensitive.[36]First, I note that unlike the decisions in Commission of the European Communities v. The United Kingdom case C-98/04 (judgment 4 May 2006); Commission of the European Communities v. Ireland case C-215/06 (judgment 3 July 2008) and Ardagh Glass Limited v. Chester City Council and Others [2009] EWHC 745 (Admin) the present case does not concern a site which at any time has been found to be a EIA development. Indeed, contrary to the submission of Mr Hyam I am not in a position to say that this is a EIA development. The screening process has yet to take place and on the material before me it is likely to do so in the near future. Until the screening opinions have been obtained it will be impossible for the Defendant or me to say that this is a EIA development. As far as the Court is concerned, see The Queen on the application of Jones v. Mansfield District Council and Another [2003] EWCA Civ 1408 per Dyson LJ at paragraphs 14-17.[37]Second, the Defendant’s list of regulatory breaches (Trial Bundle pages 227-228) contain a majority of breaches which have nothing whatsoever to do with planning control. Put simply they are outwith the planning system. I can see no reason to doubt the submission made by Mr Langham which is supported by the reports of the officers to the Development Control Committee for the meeting on 30 September 2009 that the Defendant will take account of regulatory breaches in other systems of control when considering whether or not to grant planning permission.[38]Third, I think the delays which have occurred in the granting of planning permission for the extension of this site, whilst unfortunate, are understandable and do not in themselves justify me making a mandatory order against the Defendant to take enforcement action and/or issue a stop notice.[39]Fourth, I am mindful of the fact that with the exception of the Ardagh Glass Limited case the Claimant has been unable to point me to any English authority where the Administrative Court or its predecessors have granted a mandatory order against a local planning authority ordering it to take enforcement action. Indeed, even in that case (which arose on its very special facts) His Honour Judge Mole QC was not prepared to order the Defendant to issue a stop notice.[40]Finally, I am mindful of the fact that because of a technical error of law (no authority for obtaining the screening opinions of 7 August 2009 (Trial Bundle pages 561-562) planning permission has not been granted. However, given the fact that this development has now been in the Administrative Court before Mr Justice Collins and myself I can see no reason to think other than that the Defendant will want to obtain fresh screening opinions as soon as possible and to make a decision about grant of planning permission. Indeed, I was told that by Mr Langham and I have no reason to doubt him. In those circumstances the further delay is a matter of weeks at most away.

Conclusion

[41]For these reasons I decline to make a mandatory order against the Defendant requiring it to take either enforcement action and/or issue a stop notice against the third parties in respect of the development which does not at present have planning permission. That part of the Claim is dismissed.