Birch, R (on the application of) v Barnsley Metropolitan Borough Council [2010] EWHC 416 (Admin)

[2010] EWHC 416 (Admin)

Case No CO/4534/2009

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 4 March 2010

Before

LORD CARLILE OF BERRIEW Q.C.

(Sitting as Deputy Judge of the High Court)

Between

THE QUEENClaimant

(on the application of John Birch)Claimant

BARNSLEY METROPOLITAN BOROUGH COUNCILDefendant

Jeremy Hyam

(instructed by Richard Buxton Environmental & Public Law) for Claimant

Lisa Busch (instructed by Messrs Sharpe Pritchard) for Defendant

for The Interested Party did not appear and was not represented

Hearing Hearing dates: 29 January 2010

Judgment

Lord Carlile of Berriew Q.C. :

[1]The Interested Party Mr Danforth owns land at Bagger Hill Wood, near Barnsley. In the past there was a coal pit on the land, but in recent years it has been used for pasture. The Claimant Mr Birch lives in the nearby village of Hood Green, less than 200 metres from the site boundary. The local planning authority is the Defendant, Barnsley Metropolitan Borough Council.

[2]This case concerns planning consent granted by the Defendant to Mr Danforth to develop a waste composting site at Bagger Hill Wood. There would be brought on to the land wagon loads of garden compost. It would be taken to an area where it would be piled up in ‘windrows’ – stacks with a mound or bund around them. There it would biodegrade, eventually into fertiliser. Thence it would be taken and spread on Mr Danforth’s land as fertiliser. It is presented as a green approach to the disposal of garden compost, much preferable to dumping the material in landfill. As a concept, it complies with government policy favouring green disposal schemes, and offers some farm diversification to the owner of the land.

[3]The proposal has an extended planning history. A proposal to develop a composting site at Bagger Wood Hill was first made in January 2007. Early concerns raised by the Defendant’s officers were that(a) the proposal was contrary to the local development plan,

(b) it would not be in keeping with the characteristics of the area,

(d) any developer would have to demonstrate that other material considerations outweighed the special interest of the site including that there are known to be badgers and great crested newts in the locality. Other problems raised by the Defendant’s officers included site access, highways impact and drainage. That application was withdrawn.

[4]A second planning application was submitted later in 2007. This was refused on the 15 October 2007 on the grounds that the proposed development would introduce additional movements of Heavy Goods Vehicles to a rural area, contrary to the provisions of certain rural roads policies of the Barnsley Unitary Development Plan.

[5]In January 2008, a third application for planning permission was submitted. On 11 February 2008, the Defendant prepared a document entitled ‘screening opinion’. This was designed to determine whether the matter was a development for which consideration of an Environmental Impact Assessment [EIA] was required and, if so, whether an EIA was necessary. The Defendant concluded that an EIA was not required.

[6]There was considerable local objection to the proposal. In December 2008, the Secretary of State issued a holding Direction under Article 14 of the Town and Country Planning (General Development Procedure) Order 1995, instructing the Council not to determine the application. This was so that the Government Office for Yorkshire and Humber Region (on behalf of the Secretary of State) could decide on whether or not to call the application in for their own determination. In a letter of 26 January 2009 the Secretary of State declined to call the matter in.

[7]Following the Ministerial decision, on the 27 February 2009 planning permission was granted.

[8]This application for Judicial Review was made with permission of the single judge. In the application the Claimant submits that the consent was unlawful because the Defendant failed to: i) comply with its obligations to determine whether or not the proposal should be subject to an EIA; ii) properly assess the biodiversity and environmental impacts of the proposal; iii) consider the cumulative effect of spreading partially rotted waste arising from the operations on surrounding land which is itself adjacent to homes; iv) recognise that the operations proposed would be unworkable without causing pollution problems given the size, nature and location of the site; and v) address concerns about the use of HGVs including refuse lorries and 24 tonne lorries bringing skips from household waste recycling centres accessing the site.

[9]The last of those points was not pursued in this Court, and I do not consider it further in this Judgment.

The Underlying Legal Framework

[10]The Claimant submits that the Defendant’s decision was unlawful by failing to comply with EU obligations under the EIA Directive 85/337/EEC, and by failing to take into account material considerations or taking into account irrelevant consideration.

[11]Article 2[1] of the EIA Directive 85/337/EC [the Directive] provides:

“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 effects. These projects are defined in Article 4.”

[12]Article 4 of the Directive provides:

“2. Subject to Article 2(3), for projects listed in Annex II, the Member States shall determine through: (a) a case-by-case examination, or (b) thresholds or criteria set by the Member State whether the project shall be made subject to an assessment in accordance with Articles 5 to 10. 3. When a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. 4. Member States shall ensure that the determination made by the competent authorities under paragraph 2 is made available to the public.”

[13]In order to comply with EU obligations, the Town and Country Planning (Environmental Impact Assessment) Regulations 1999 [the Regulations] provide what should happen in respect of certain applications. Regulation 2 provides:

“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.”

[14]By Regulation 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).”

[15]It is not in dispute that all of the requirements in Regulation 7(1)(a), (b) and (c) were met by this particular application for planning permission. Thus paragraphs (3) and (4) of Regulation 5 apply.

[16]Paragraphs (4) and (5) of Regulation 5 provide:

“(4) An authority shall adopt a screening opinion within three weeks beginning with the date of receipt of a request made pursuant to paragraph (1) or such longer period as may be agreed in writing with the person making the request. (5) An authority which adopts a screening opinion pursuant to paragraph (4) shall forthwith send a copy to the person who made the request.”

[17]Regulation 5 enables a person who is minded to carry out development to request the relevant planning authority to adopt a screening opinion.

[18]Regulation 7 ensures that if no such request is made and the application before the Council is for Schedule 1 or Schedule 2 development and there has been no environmental statement, then the planning authority considers the matter as though it had been requested by the applicant for permission to adopt a screening opinion.

[19]A screening opinion is defined in Regulation 2:

"Screening opinion" means a written statement of the opinion of the relevant planning authority as to whether development is EIA development."

[20]The authority may delegate the forming of that opinion to an appropriate officer.

[21]Regulation 3(2) provides:

“The relevant planning authority … shall not grant planning permission or subsequent consent pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration, and they shall state in their decision that they have done so. ”

Legal Issues Particular to this Case

[22]The parties were agreed that an EIA is required unless a comprehensive screening opinion concludes that the proposal is not likely to have significant environmental effects.

[23]If such effects are likely, the Directive requires that a local planning authority should obtain the necessary information by a set procedure, namely an EIA. In Berkeley v. Secretary of State for the Environment

[2001] 2 AC 603

the House of Lords held that where an EIA is required its necessity cannot be dispensed with by the Court, and should be made available to the public as part of “the inclusive and democratic procedure described by the Directive in which the public however misguided and wrongheaded its views may be, is given an opportunity to express its opinion on the environmental issues” [Lord Hoffman at [38]].

[24]As Sullivan J (as he then was) observed in R (Lebus and Others) v South Cambridgeshire District Council

[2002] EWHC 2009

Admin: “It is not appropriate for a person charged with making a screening opinion to start from the premise that although there may be significant impacts, these can be reduced to insignificance as a result of the implementation of conditions of various kinds. The appropriate course in such a case is to require an environmental statement setting out the significant impacts and the measures which it is said will reduce their significance.”[46]

[25]In the same case Sullivan J referred to the delegation of the forming of the screening opinion. Where the responsibility is delegated, there should be “a written statement by the [delegated person] setting out his opinions as to whether the proposed development was or was not EIA development” [36].

[26]An important issue arose in the present case as to whether the material to be taken from the windrows is ‘waste’, and therefore whether the development falls within one of the Schedules to the Regulations. Although it is significant that the proposal was correctly described by the Defendant repeatedly as a waste composting facility, they have not conceded that the material to be placed on the land, after degradation, is waste.

The Claimant’s Submissions

[27]The Claimant submitted that the Defendant has granted permission in breach of Art. 2(1) and 4(2) and Reg. 3(2) because it did not take all the environmental information into consideration. He submitted that there was a requirement for an EIA.

[28]The Claimant emphasised Commission v Italy [2004] C 87/02, where the European Court of

Justice (ECJ) noted:

“44. … whatever the method adopted by a Member State to determine whether or not a specific project needs to be assessed, be it by legislative designation or following an individual examination of the project, the method adopted must not undermine the objective of the Directive, which is that no project likely to have significant effects on the environment, within the meaning of the Directive, should be exempt from assessment, unless the specific project excluded could, on the basis of a comprehensive screening, be regarded as not being likely to have such effects.”

[29]The submission that an EIA is required unless a comprehensive screening opinion concludes that the proposal is not likely to have significant environmental effects is consistent with the earlier ECJ cases of Kraaijeveld v Gedeputeerde Staten [1996] C-72/95and WWF v Autonome Provinz Bozen [1999]

Case C-435/97

[30]The proposal involved not only the receiving into the windrow area of ‘waste’ (not disputed by the Defendant), but also the spreading of waste on the land after its full or part degradation (disputed to the extent that the material was said no longer to be waste). The Claimant, relying on evidence available to all parties, noted that the spread material would or might consist of partly degraded material which as a result would properly be regarded as waste. It takes between 12-20 weeks for green waste to become compost (see e.g. page 32 of the Composting Industry Code of Practice). With only limited space and a condition limiting storage of waste to 125 tonnes for 7 days at a time, the site would reach capacity very quickly. Thus, while the permission provided for a maximum of 4,500 tonnes of waste per annum to be brought onto the site, in practice only a fraction of this amount could lawfully be imported.

[31]Thus the proposal, including the spreading of the material, was for an “Installation for the disposal of waste … which exceeds 0.5 hectare”, and therefore falls within Schedule 2 paragraph 11(1)(b) of the Regulations.

[32]The Claimant submitted that the Defendant’s document of 11 February 2008 entitled ‘Screening Opinion’ was inadequate and failed to meet the required threshold of a “comprehensive” screening opinion as indicated by Commission v Italy [2004].

[33]The Claimant relied upon two alleged flaws: i) In consideration of whether the application fell within an environmentally sensitive area, the Council’s officer erred in law because, notwithstanding that he recognised that the area was within a nature conservation site and a national heritage site, he concluded it was not in a sensitive area because it was not on a list of sensitive areas identified by Circular 02/99 paras 36-40. This was the wrong approach. In fact, the proposed waste site is situated on land designated as both a nature conservation and natural heritage site, and land designated as ‘Penistone upland farmland’ which the Council’s Landscape Character Assessment 2002 recommended be ‘Conserved and Restored’. ii) The Screening Opinion then failed to consider (in sufficient detail) the matters identified in Schedule 3 of the Regulations which requires the screening assessment to be undertaken by considering the scale, nature and location of the proposal in some detail. The officer appeared to have concluded that the size of the development was not applicable, saying it was for “an installation for the disposal of waste” under paragraph 11(b) of Schedule 2 to the Regulations 1999, for which the applicable threshold criteria is 0.5ha, which it did not reach. The officer seemed to consider that no EIA was required simply because of “the scale and nature of the proposal”. This was an insufficient screening assessment which failed to have regard to the broad scope and purpose of the Directive – see for example, paragraph 28 of Ecologistas v Ayunamiento de Madrid [2008]

Case C-142/07

where the ECJ held:

“… The Court has stated on numerous occasions that the scope of Directive 85/337 and that of the amended directive is very wide (see, to that effect, Case C-72/95 Kraaijeveld and Others [1996] ECR I-5403, paragraph 31; Case C-435/97 WWF and Others [1999] ECR I-5613, paragraph 40; and Case C-2/07 Abraham and Others [2008] ECR I-0000, paragraph 32). It would, therefore, be contrary to the very purpose of the amended directive to allow any urban road project to fall outside its scope solely on the ground that the directive does not expressly mention among the projects listed in Annexes I and II those concerning that kind of road. . [28]”

[34]The Claimant submitted too that the Defendant’s planning officer, Mr Woodward, did not have authority to approve the screening opinion. The Defendant’s scheme of delegation reserves such delegated authority to the Assistant Director of Planning and Transportation only. Given that the Defendant contended that the Assistant Director endorsed the screening opinion in the officer’s report of 5 February 2009, the screening opinion became a formal determination at the date of signature (see e.g. para 49 of R (Catt) v Brighton & Hove CC

[2007] EWCA Civ 298

). It should have been published, argued the Claimant, in such a way as to offer interested parties practical information of that decision under, for instance, Article 10a of the EIA Directive 85/337/EC. Unless there was a further written screening opinion undertaken by the Assistant Director, the Defendant’s decision was ultra vires. Further, those errors were compounded by the Defendant’s failure to ensure that the screening opinion was made available to the public by placing it on the planning register as required by Article 4(4) of the Directive.

[35]Finally, the Claimant argued, the screening opinion should have been reviewed (but was not) when later concerns/comments had been received by the Defendant following the deferral. There was nothing to suggest in the report of 5 February 2009 that any further formal review for the purpose of EIA was carried out. This is incompatible with the Regulations.

[36]If a comprehensive EIA screening assessment had been carried out properly, the Claimant contended that it would have been clear that the development was EIA development. As it was, the Council did not have a complete understanding of the significant environmental effects that were likely to arise from the proposal. In so submitting the Claimants relied on the following:- i) The lack of biodiversity impact assessment. This point was raised by Natural England in a letter of 3 February 2009 including that the application was not supported by an appropriate ecological survey, that known records for great crested newts were not available, that the presence of two natural heritage sites were not identified; and there had been no assessment of the impact on local biodiversity. Following the Defendant’s objections to these comments in such express terms, Natural England, in a later letter of 20th February 2009 expressed them in more general terms but did not retract them. ii) That there had not been adequate assessment of the potential effect from bioaerosols. The Claimant argued that it was insufficient for the Defendant to rely upon the fact that the Environment Agency had made no objections to the proposal. The Defendant ought to have itself properly considered the likely health impact arising out of the waste. iii) Further, the Council had provided no explanation and confirmation that the concerns highlighted in its decision of June 2008 have been overcome.

[37]The Claimant submitted that if the Council had carried out a comprehensive screening assessment it could only have reasonably concluded that, given the nature, size and location of the proposal, it was EIA development. That is, the nature is a waste operation which may often give rise to odour, other health problems and potential harm to the local ecology and environment. The size they claimed to be a large operation of very much more than 0.5 hectare, taking into account the spreading of degraded material, with a central waste processing plant and surrounding area for spreading the partially matured waste.

[38]In short, said the Claimant, the waste operator will require planning permission for the spreading of partially matured waste. This should have been considered as it was part of the cumulative effect see e.g. para 43 of Abraham v Region Wallone

[2008] ECR I-0000

[39]The Defendant had failed to comply with its EIA obligations and had, in effect ‘sliced up’ the proposed waste site into(a) operations that it considered do require planning permission and

(b) those that it believed do not. This offends the principle in R v Swale BC ex p RSPB

[1991] 1 PLR 6

that if a developer was engaged in the process of slicing up a substantial development proposal into smaller components so as to defeat the object of the EIA Regulations by piecemeal development proposals, the development as a whole should be considered. This was affirmed recently in Ecologistas.

[40]The Claimant contended further that the conditions limiting waste on the site were unworkable, not least because there is no planning permission to spread the partially rotted compost (which the Claimant asserted is waste) on land.

[41]There were further issues relating to the maximum height of the windrows. Condition 10 of the permission allows windrow heights to be up to 4 metres, which is higher than generally recommended - and likely to lead to odour and other pollution problems. Complaints of significant odour problems have arisen at other sites with windrow heights in excess of 3 metres: the relevant Technical Guidance suggests that height in excess of 2.5 metres may cause high temperatures and consequent odours. With a proposed windrow width of 5 metres at the Bagger Wood Hill site, it is likely that any windrows above 2.5 metres in height were likely to cause problems.

The Defendant’s Submissions

[42]The Defendant Council submitted essentially that they were a responsible planning authority as concerned as any other for the provision of sustainable green waste disposal not involving landfill. This was one such scheme on a small scale. They had followed all necessary planning and procedural requirements.

[43]The Defendant argued that the application for the Development was approached on the basis that the material which it will produce will be compost meeting the standards set out in the Environment Agency’s Compost Quality Protocol. As such, it will not be waste. Consequently, the spreading operation will not constitute development. Rather, it will involve an agricultural operation, which does not require planning permission. Insofar as the spreading operation will not involve development, it did not require to be assessed together with the planning application, either for the purpose of determining that application, or for the purpose of determining whether it involved an application for EIA development. Consequently, the decision to grant planning permission was entirely lawful.

[44]They argued that the screening opinion remained on the planning register for some two to three weeks before planning consent was granted on the 27 February 2009, albeit that the opinion had been in existence and not on the register for the best part of a year beforehand. The public had the opportunity to comment.

[45]On delegation they pointed to the judgment of Ouseley J in Younger Homes (Northern) Ltd v First Secretary of State and Another

[2003] EWHC 3058 (Admin)

. That was a planning case in which there had been no formal procedure in delegating the responsibility for provision of a screening opinion from one local government officer to another. His Lordship said:

“I am quite satisfied that the true issue is not precisely how or whether it was signed by Mr Raper; that would be an unduly formalistic response to the real issue, however wise it would have been for the sheet to be so signed. The real issue is whether or not in fact Mr Raper had the necessary authority in the light of the decisions in Cheshire and Provident Mutual. It seems to me on the evidence that there was authority given to Mr Raper and other senior officers because that is what Mr Raper says. What he says also accords with common practice, as he says, and as Cheshire illustrates. … A certain amount of realism is called for in judging the probability of such authority having been given.”

[46]Counsel for the Defendant argued that, notwithstanding the absence of any formal resolution to delegate, this was a similar case. Delegation had clearly taken place, was a matter of practice, and it was plain that the screening opinion had been signed off by the senior officer required.

[47]As Counsel Ms Busch put the case to me, it was accepted that the whole process had been predicated by the Defendant on the basis that the material to be spread was not ‘waste’ within the necessary statutory definitions referred to earlier in this judgment. Thus, in the approvals schedule issued by the Council in February 2009 (page 254 of the trial bundle) the application was referred to thus:

“It was concluded that, due to its scale and nature, an Environmental Impact Assessment procedure was not required for the proposed development.”

[48]The Defendant submitted that they took all material matters into account, and reached a legitimate conclusion on a full assessment of the site.

[49]It was argued that the delay in placing the screening opinion on the planning register was immaterial: local residents knew of it, requested and responded, and the point was an afterthought and makeweight for the purposes of these Judicial Review proceedings.

[50]In all, the Defendant Council had exercised its discretion lawfully within the relevant legal principles.

Applying the Law to the facts

[51]In my judgment there is nothing of substance in the delegation point. Although the delegation lacked formal perfection, this is a matter of substance not form, and clearly delegation had taken place and was exercised in good faith. Further, there was sufficient oversight of a formal nature.

[52]Nor is there sufficient substance to make any difference to the outcome in the complaint about late placement on the register. It is an important part of the democratic process that screening opinions should be placed on the register in a timely fashion, which did not happen here. However, there was just sufficient time for comment to be made. In this case there were 780 objections including that of the local Member of Parliament Mr Clapham, and those wishing to deal with the screening opinion.

[53]However, I have concluded that there was a serious error in the Defendant’s uncritical assumption throughout that, because the windrows into which the waste was received were of less than 0.5 hectares in area, this was not a development within Schedule 2 of the Regulations. The development may or may not be within the Schedule, but the point was well made by the objectors and should have been considered: if the material spread (after degradation in the windrows) is correctly described as ‘waste’ as asserted by the Claimant and others, the conclusion as to whether an EIA was required is likely to have been different. Plainly it was a matter requiring detailed consideration within the context of the preparation of the screening opinion, but such consideration simply was not given in any structured way. The ultimate conclusion as to whether the development is permitted may or may not be the same thereafter, but the failure to give any real consideration to the point is a very serious error – sufficient in my judgment to render the decision unlawful so as to be quashed.

[54]The effect of a failure to consider properly whether this was Schedule 2 development had the further consequence that the environmental impact questions set out in the screening opinion flow chart used by the Defendant Council were never asked. Whatever the answers, these questions would have had to be asked and answered if the correct approach had been taken to Schedule 2.

[55]In all the circumstances I find for the Claimant on the limited grounds described above, and quash the decision.