Kolb, R (on the application of) v FCC Environment UK Ltd [2013] EWHC 1055 (Admin)

[2013] EWHC 1055 (Admin)

Case No CO/12966/2012

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

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

Date 29 April 2013

Before

MR JUSTICE LINDBLOM

Between

R (on the application of Kenneth Kolb)Claimant

Buckinghamshire County CouncilDefendant

FCC Environment UK LimitedInterested Party

The Claimant in person for in person

Mr David Elvin QC and Mr Richard Turney (instructed by Head of Legal and Democratic Services, Buckinghamshire County Council) for Defendant

Mr James Maurici (instructed by Walker Morris Solicitors) for Interested Party

Hearing Hearing date: 14 March 2013

Judgment

Introduction

[1]The claimant, Mr Kenneth Kolb, challenges the planning permission granted by the defendant, Buckinghamshire County Council (“the County Council”), on 27 July 2012, for the development of an energy from waste facility at Greatmoor Farm, Calvert Landfill Site, Calvert in Buckinghamshire. The intending developer is the interested party, FCC Environment UK Limited (“FCC”). The claimant contends that the planning permission was unlawfully granted, and that, as a result, hazardous waste containing toxic dioxins will be disposed of in an area prone to flooding.

[2]The claim was listed together with another, in which the same grant of planning permission was challenged by Mr Christopher Prideaux (CO/11458/2012). It came before me at a rolled-up hearing, which followed immediately upon the hearing of Mr Prideaux’s claim. Judgment in Mr Prideaux’s case is also being handed down today.

[3]At the hearing the claimant appeared as a litigant in person. Mr David Elvin Q.C. appeared for the County Council, and Mr James Maurici for FCC.

Background

[4]The energy from waste facility is intended to receive all of the residual waste produced by Buckinghamshire’s residents, a population of about 500,000. It is expected to treat up to 300,000 tonnes of waste generated by households and businesses in the county every year. The County Council believes it is urgently needed. It will enable all of the county’s municipal waste to be diverted from landfill.

[5]FCC emerged as the County Council’s preferred bidder after a lengthy waste procurement process. That process began in 2007. It is now close to the point at which a contract is agreed.

[6]When the proposals came before the County Council’s Development Control Committee the planning officers advised (in paragraph 286 of their report) that in their view “… there is no doubt that a facility which recovers energy from waste is required to enable the County Council to properly make provision for the management of the equivalent of its own waste arisings. Without such a facility somewhere in the county, the County Council would not be able to meet the target of doing so by 2016 as set out in Policy 10 of [the Buckinghamshire Minerals and Waste Local Plan 2004-2016] … [The] available evidence points strongly to the need for such a facility and … the application site … is in principle the best location available in the county when considered against the alternatives.”

[7]The facility is an important part of the County Council’s Minerals and Waste Core Strategy. The core strategy was endorsed by the inspector appointed by the Secretary of State for Communities and Local Government to conduct an independent examination of it, in his report of 3 September 2012. It was adopted by the County Council on 22 November 2012. The inspector rejected an argument that another site, at Wapseys Wood, ought to have been preferred to the site at Calvert In paragraph 97 of his report he said this:

“Although Wapseys Wood is well placed to serve the waste management needs of the south of the county and would provide more flexibility to manage waste, its location in the Green Belt and the completion of restoration in the short-term mean that its longer-term role in waste management is not appropriate. Some suggest that Wapseys Wood is a better site than Calvert, but this is not borne out by the detailed assessments. Policy CS14 safeguards the site for its current landfill use, with associated operations, and it would not necessarily be ruled out for waste management in the future under Policy CS13. However, it would be a lower priority and have to demonstrate the very special circumstances needed to justify inappropriate development in the Green Belt. Consequently, there is no compelling reason to allocate Wapseys Wood as a site for a [Strategic Waste Complex] at this time, either instead of, or as well as Calvert.”

[8]The site on which the facility is to be developed is adjacent to an existing landfill site. FCC’s development includes the continued use of an area within that site, known as “Pit 6”. The contours of Pit 6 will be changed, and it will be extended southwards into an area known as “Pit 8”. The use of Pit 6 for landfill had already been authorized by a review of old mineral permissions (“ROMP”) consent, which permits “the extraction of clay and infilling with controlled waste”. The use of Pit 6 for waste disposal is, therefore, both lawful and active. The ROMP consent does not limit the nature of the waste that may be deposited in Pit 6. It could lawfully be used for the disposal of hazardous waste, subject, of course, to any other relevant regulatory controls.

Flood risk assessment and the sequential test

[9]The application for planning permission was accompanied by a flood risk assessment, produced by FCC’s consultants, SLR, in September 2010. This was included in the environmental statement for the project. FCC maintains, and the County Council accepts, that the flood risk assessment was prepared in accordance with the Government’s guidance in PPS25.

[10]The flood risk assessment considered the sequential test in section 2.0. It concluded, in paragraph 2.6, that “there are no other reasonably available sites in areas of a lower probability of flooding that would be appropriate to the type/form of development and meet the wider sustainability objectives set out by [the County Council]”.

[11]Three further passages in the flood risk assessment bear on matters that are contentious in this claim. These are in paragraphs 3.1.1 and 4.5.1 and section 7.0:

“3.1.1 Flood Zone Map The EA’s Flood Zone Map shows the site to be primarily within Flood Zone 1 with only sections of … Pit 6 within Flood Zone 3a associated with the Muxwell Brook … . It is understood that the [Environment] Agency’s fluvial flood zone maps do not take into account the hydraulic flow constrictions associated with culvert structures that convey the Muxwell Brook under the railway embankment, nor do they take account of the potential impoundment of out of bank flows caused by the presence of the railway line embankment. It is also apparent that the [Environment Agency] flood zone maps do not take into account the historic flow diversion from the point along the Muxwell Brook just downstream of the culvert outlet beneath the railway line, where the Muxwell Brook dog legs and runs adjacent to Pit 6 along its original alignment of the Muxwell Brook. From site observations and discussions with WRG [now FCC], prior to taking ownership of the site the Muxwell Brook had been diverted from its point of entry onto the northern site boundary, immediately downstream of the railway culvert. This diversion extends around the periphery of the application area. This diversion channel (referred to as the ‘mega ditch’) generally comprises a channel cut into the ground surface in excess of 3m deep with a top width of more than 10m (as shown in Figure 3-1). All water from the brook is diverted into this channel just downstream of the railway culvert via a penstock type structure placed at the upstream face of the culvert feeding into the original alignment of the Muxwell Brook where it runs parallel with Pit 6 (as shown in Figure 3-2). … 4.5.1 Fluvial Flooding The primary fluvial flood risk posed to the application site is associated with the Muxwell Brook. Information detailed in Section 3.1.1 confirms that the Muxwell Brook has been diverted around the site in a drainage channel referred to as the mega ditch. The [Environment Agency] has confirmed that the current published flood zone maps do not take account of the diversion channel and therefore are out of date. … 7.0 CONCLUSIONS This Flood Risk Assessment has considered all potential sources of flooding to the proposed development and the potential impacts of the development on flood risk to others. The principal potential flood risk to the site was identified as fluvial flooding from Muxwell Brook. The Flood Zone Maps published by the EA indicated that the EfW and access road are within Flood Zone 1 with the Pit 6 extension within Flood Zones 1, 2 and 3a. However, the flood zone maps are out of date as they do not consider the Muxwell Brook diversion channel which routes flow around the eastern perimeter of the application site. Preliminary hydraulic modelling indicates that the majority of this channel has adequate capacity to retain in bank the design flood flow (100 year event with allowance for possible long term climate change). Thus, the majority of the site, including Pit 6, has been shown to lie in Flood Zone 1. …”

. The EA’s Flood Zone Map shows the site to be primarily within Flood Zone 1 with only sections of … Pit 6 within Flood Zone 3a associated with the Muxwell Brook … . It is understood that the [Environment] Agency’s fluvial flood zone maps do not take into account the hydraulic flow constrictions associated with culvert structures that convey the Muxwell Brook under the railway embankment, nor do they take account of the potential impoundment of out of bank flows caused by the presence of the railway line embankment. It is also apparent that the [Environment Agency] flood zone maps do not take into account the historic flow diversion from the point along the Muxwell Brook just downstream of the culvert outlet beneath the railway line, where the Muxwell Brook dog legs and runs adjacent to Pit 6 along its original alignment of the Muxwell Brook. From site observations and discussions with WRG [now FCC], prior to taking ownership of the site the Muxwell Brook had been diverted from its point of entry onto the northern site boundary, immediately downstream of the railway culvert. This diversion extends around the periphery of the application area. This diversion channel (referred to as the ‘mega ditch’) generally comprises a channel cut into the ground surface in excess of 3m deep with a top width of more than 10m (as shown in Figure 3-1). All water from the brook is diverted into this channel just downstream of the railway culvert via a penstock type structure placed at the upstream face of the culvert feeding into the original alignment of the Muxwell Brook where it runs parallel with Pit 6 (as shown in Figure 3-2). … The primary fluvial flood risk posed to the application site is associated with the Muxwell Brook. Information detailed in Section 3.1.1 confirms that the Muxwell Brook has been diverted around the site in a drainage channel referred to as the mega ditch. The [Environment Agency] has confirmed that the current published flood zone maps do not take account of the diversion channel and therefore are out of date. … This Flood Risk Assessment has considered all potential sources of flooding to the proposed development and the potential impacts of the development on flood risk to others. The principal potential flood risk to the site was identified as fluvial flooding from Muxwell Brook. The Flood Zone Maps published by the EA indicated that the EfW and access road are within Flood Zone 1 with the Pit 6 extension within Flood Zones 1, 2 and 3a. However, the flood zone maps are out of date as they do not consider the Muxwell Brook diversion channel which routes flow around the eastern perimeter of the application site. Preliminary hydraulic modelling indicates that the majority of this channel has adequate capacity to retain in bank the design flood flow (100 year event with allowance for possible long term climate change). Thus, the majority of the site, including Pit 6, has been shown to lie in Flood Zone 1. …”.

[12]In July 2011 SLR produced an addendum to the flood risk assessment. Paragraph 2.1 of this document stated:

“At the planning application stage, the initial FRA screening and scoping studies were based upon the EA Flood Zone Maps derived using large scale flood modelling techniques. Mapping indicated that the proposed EfW site was located within Flood Zone 1, although areas of the site are shown to be located within Flood Zone 3a, which in terms of the proposed development, principally affect just the site of the proposed APC Monocell. However, the Flood Zone Maps are out of date as they do not consider the Muxwell Brook diversion channel which routes flow around the eastern perimeter of the application site. In order to assess the impact of the diversion of the original Muxwell Brook into the Mega Ditch feature, SLR undertook floodplain modelling work to inform the FRA in relation to the distribution and extent of flooding associated with the main watercourses within the site, which include the Muxweel Brook and the diversion channel known as the Mega Ditch.”

Paragraph 2.2, under the heading “Confirmation of Fluvial Flood Risk: On-Site: Perimeter Roa, IVC and EfW” confirmed that the “[Environment Agency’s] technical audit of SLR’s hydraulic model concluded that it was precautionary and that the baseline model provided a suitable basis for informing the site specific FRA”, and that “[following] consideration of the [Environment Agency’s] FRDM comments, it has been concluded that the modelled outline is not overly conservative, and that it is in fact a reasonable representation of the extent of flooding within the site”.

[13]Section 3.0 of the addendum provided further detail on the application of the sequential test. Paragraph 3.4 stated:

“… The Calvert site has been characterised in flood risk terms via a detailed site specific quantitative flood risk assessment that clearly demonstrates that sufficient land (.4ha) is available within Flood Zone 1, which is unaffected by all other sources of flooding. Therefore, the Calvert site meets the over-arching requirements of the PPS25 Sequential Test as defined within the BCC Level 2 SFRA. Following application of the Sequential Test it is concluded … that at the time of application (and based upon subsequent published data), there are no other reasonably available sites that are confirmed as being in an area of lower probability of flooding than the development proposed in the planning application, that would be more appropriate to the type/form of development and meet the wider sustainability objectives for provision of a Strategic Waste Complex.”

[14]Flood risk was considered in the course of the core strategy process. The core strategy inspector dealt with sequential assessment in paragraph 88 of his report, where he said this:

“There is some concern that the site was not subject to a full sequential assessment at the site-selection stage in terms of flood risk. However, [the County Council] confirms that all potential sites were subject to sequential assessment during the plan-making process. Work undertaken as part of the Sequential Test report confirms that Calvert passed the sequential test, subject to mitigation conditions, and that there are no available alternative sites entirely within Flood Zones 1 or 2 (as confirmed in the latest proposed change … ); most of the site lies within Flood Zone 1 and there is sufficient developable land for a [Strategic Waste Complex] to be located within this area … . [The Environment Agency] is broadly satisfied with this approach, subject to clarification in the Sequential Test report … .”

Pit 6

[15]At the hearing the claimant told me that Pit 6 is often flooded. He showed me photographs to illustrate this. But his assertions about flooding were not accepted by the County Council and FCC. Mr Elvin and Mr Maurici said that the inundation to which the claimant had referred was only rainwater. Also in dispute was the claimant’s assertion that Pit 6 lies within the flood plain, and therefore required a separate sequential assessment. The County Council and FCC insist that this is not so. Pit 6 is no longer within the flood plain because the mega-ditch has been constructed. Mr John Plant, FCC’s Director of Projects, says in his witness statement of 6 February 2013 that this has been accepted by the Environment Agency. In paragraphs 18 and 46 of his witness statement Mr Plant says this:

“18.Pit 6 is shown on the published [Environment Agency] maps as being within the flood plain, largely perhaps because it is an excavated pit below the water table. However, an updated flood risk assessment and revised surface water management scheme for the whole site was carried out by our planning consultants for the purposes of the planning application. This demonstrated that Pit 6 is no longer within the predicted flood plain because the [Environment Agency’s] flood risk mapping does not take account of the ‘megaditch’[,] a very large site perimeter ditch constructed in the 1980’s by the previous operator of the Site. … 46. Clearly the considerations in the paragraph above related primarily, if not exclusively to the Site itself, rather than the monocell. However, the latter was dealt with in the planning officer’s report to the DCC of 17th April 2012 … .”

The Environment Agency’s letter of 23 December 2011

[16]The Environment Agency withdrew its objection to the proposed development in a letter to the County Council dated 23 December 2011. In that letter the Environment Agency said this:

“… Sequential Test … You will need to make the decision as to whether the sequential test is passed based on the findings and conclusions of the sequential test details submitted with [the] application. … Note to council … The site is shown on our Flood Map as being at risk of flooding. In order to establish whether the Mega Ditch would contain all flood water, the applicant undertook a hydraulic modelling exercise prior to the planning application being submitted. This demonstrated that flood water would overtop the Mega Ditch at an existing low point and would flow through the site along the line of the original route of the Muxwell Brook. This flow is shown on drawing ref. FRA 5. This confirmed that the site would be at risk of flooding during both a 1 in 20 year event (Flood Zone 3b) and a 1 in 100 year event (Flood Zone 3a) The Energy from Waste facility (EfW) itself and the landfill areas are proposed to be located outside of this floodplain and are therefore not a risk of flooding themselves and would not increase flood risk to the surrounding area. However, we wish to draw to the council’s attention … the fact that three areas associated with the development flood, however we do not believe the risk will be increased as a result of the development: 1. Flooding of the access road near the A41 2. Flooding of the perimeter road running parallel with mega ditch 3. Flooding of the IVC area …”

. Sequential Test Note to council

The County Council’s consideration of the proposals

[17]The proposals first came before the County Council’s Development Control Committee on 14 February 2012. On that occasion the committee deferred its consideration of the application. The application came back before it on 17 and 20 April 2012.

[18]In paragraph 22 of their report to the committee the County Council’s planning officers explained the process by which fly ash and other particulate matter in the air pollution control residues used in the energy from waste facility would be treated before being put into Pit 6:

“… The exhaust gases would then be filtered through a bag type filter which traps fine particulate matter including the fly ash, reaction products and excess reagents. In this way heavy metals would be removed that are adsorbed onto particulate matter. These residues are known collectively as air pollution control (APC) residues and represent 3% of the mass of the waste input. The APC residues would be removed from the filters to external enclosed silos and treated by adding phosphoric acid to neutralise the alkaline pH, chelate heavy metals to the insoluble phosphate form and stabilise the material before passing via an enclosed screw conveyor to an enclosed humidifier unit where it would be sprayed with phosphoric acid to achieve an output of dampened residue prior to removal by tipper lorry for final disposal in the proposed hazardous waste monocell in Pit 6 … .”

[19]In paragraph 32 of their report the officers described the proposed construction of the mono-cell in Pit 6: “The existing Pit 6 would be extended south-westwards to include part of what is currently Pit 8 from which clay would be excavated for engineering purposes at the landfill site. It is proposed to construct a mono-cell in the southern section of this revised Pit 6 area which would be used for the disposal of the APC residues which are defined as a hazardous waste. The Landfill Directive requires that a hazardous waste landfill cell is constructed with a separate liner and leachate and landfill gas monitoring systems. The details of its construction would be controlled by an Environmental Permit issued by the Environment Agency. The nature of the APC residues is such that landfill gas would not be generated. The mono-cell would have a very slow input of material and would be developed and filled in phases. A separation bund would be provided between it and the non-hazardous landfill cells and this would be finished and seeded to protect its exposed slopes from weathering and erosion. …”.

[20]In paragraph 8 of their report the officers noted that the site lies within Flood Risk Zones 1, 2 and 3, and that the “staff access road” passes through Flood Risk Zones 2 and 3. In paragraph 61 the officers said that a flood risk assessment had been provided as part of the environmental impact assessment of the project. As to the sequential test in PPS25, the officers said this (ibid.): “… [It] is concluded that there were no other reasonably available sites that are confirmed as being in an area of a lower probability of flooding than the development proposed in the application, that would be more appropriate to the type/form of development and meet the wider sustainability objectives for the provision of a Strategic Waste Complex”.

[21]The officers told the members, in paragraph 105 of their report, that the Environment Agency had said the County Council would need to decide whether the sequential test was passed. However, the Environment Agency had no objections to the proposals provided certain conditions were imposed on the planning permission. These conditions were set out.

[22]In the section of their report headed “The Water Environment”, in paragraph 243, the officers considered the information that had been provided on the sequential test:

“… Policy NRM4 supports the sequential approach to development in flood risk areas set out in PPS25 that inappropriate development should not be permitted in flood zones 2 and 3, areas at risk of surface water flooding or areas with a history of groundwater flooding or where it would increase flood risk elsewhere, unless there is an over-riding need and absence of suitable alternatives … . The suitability of locations subject to flooding will … need particular care. PPS25 provides guidance on development and flood risk. Paragraph 10 of PPS25 states that flood risk assessment should be carried out to the appropriate degree at all levels of the planning process, to assess the risks of all forms of flooding to and from development taking climate change into account and to inform the application of the sequential approach. Paragraph 16 states that Local Planning Authorities allocating land for development should apply the sequential test to demonstrate that there are no reasonably available sites in areas with a lower probability of flooding that would be appropriate to the type of development or land use proposed.”

[23]The officers continued, in paragraph 244:

“The applicant has also carried out a detailed Flood Risk Assessment and sequential test for the specific application proposals. The Flood Risk Assessment demonstrates that the proposed EfW facility buildings and the tipping proposed to Pit 5 and the revised Pit 6 area would lie in Flood Zone 1 and so would not be at risk of flooding and would not increase flood risk to surrounding areas. The proposed access road is crossed by watercourses at various places and so is partly at risk of flooding. It is concluded that subject to mitigation measures, the application site would not result in an unacceptable flood risk and that it meets the requirements of the site Sequential Test. A range of measures are set out in the application description … including a Sustainable Urban Drainage Scheme, the provision of an overflow channel essentially re-instating the Muxwell Brook and silt and oil interceptors to protect the water environment. The Environment Agency has reviewed the application and confirmed that subject to a number of conditions set out above, it has no objection to the application on flood risk or any other grounds. I am therefore satisfied that the sequential test insofar as this specific application is concerned has been met and that there would be no unacceptable flood risk or other impact on the water environment associated with the development provided the conditions required by the Environment Agency are attached to any planning permission which may be granted. The development would also be subject to an Environmental Permit issued by the Environment Agency which would control any potential pollution of the water environment. I therefore consider that the application is in accordance with the development plan policies and national policies and guidance set out above.”

[24]In paragraph 205 of their report the officers discussed a suggested alternative site for the development, at Wapseys Wood in the Green Belt. In paragraph 205 they said this:

“The applicant has carried out an assessment of alternative sites. This has concentrated on the existing waste management sites at Wapseys Wood in the south of the county and the Rookery Pit site in Bedfordshire. The applicant concludes that the application site is environmentally the better option. I also consider that the evidence base carried out for the MWCS is a relevant material consideration in that it has been carried out in accordance with locational guidance provided in PPS 10, has appraised nearly 200 sites against a range of environmental criteria and has also concluded that a Strategic Waste Complex including a facility for the recovery of energy from residual waste should be located at the Calvert Landfill site.”

[25]When the committee met on 14 February 2012 officers reported the claimant’s assertion that the proposals did not comply with PPS25. The claimant spoke at the meeting. He contended that a sequential test had not been carried out, that the flood survey was inadequate, and that hazardous waste would be introduced into a flood zone. Having heard representations both in favour of and against the proposals, the committee decided not to make its decision on the application at that stage.

[26]Before the committee met again in April 2012 the officers had written a supplementary report. This addressed, among other things, the objections made by the claimant. It explained that, in the light of the assessment provided on behalf of FCC, Pit 6 was not in a flood risk zone. The Environment Agency had accepted that conclusion. The approach adopted was considered to comply with the relevant guidance in the National Planning Policy Framework (“the NPPF”). There was no requirement to carry out a sequential test for Pit 6. The relevant part of the supplementary report states:

“58.Paragraph 243 of the previous report advises that the application is considered to be in accordance with the development plan policies and national plan policies and guidance in relation to ground and surface water drainage issues and flood risk. 59. The County Council has, however, received an objection to the proposal principally on the basis that the sequential test has not been applied to all of the development. The sequential test was set out in PPS25 and required planning authorities, when determining planning applications, to direct development away from areas of flood risk in the first instance. If proposals include development within areas of high flood risk, planning authorities are required to consider whether these could be located in areas of lower risk. Permission should, therefore only be granted for development in areas of high flood risk where there is no better alternative location taking account of other planning considerations. 60. The objector is of the view that the proposed disposal of the Incinerator Bottom Ash, which is classified as Hazardous Waste and would be in Pit 6 is within an area of higher flood risk according to the [Environment Agency’s] flood risk maps. The objector, therefore, considers that a sequential test should have been carried out which would have concluded that this waste should be disposed of elsewhere, out of the area of higher flood risk. 61. The applicants undertook a flood risk assessment which took account of the change to a local watercourse by the construction of the “megaditch”

. This change has not been registered on flood risk maps. The Flood Risk Assessment has concluded that because of the change in the location of the [watercourse], Pit 6 is no longer in an area of flood risk. The Environment Agency agrees with this conclusion and has no objection to the disposal of the Incinerator Bottom Ash in Pit 6. In the circumstances, there was no requirement to carry out a sequential test in relation to this part of the development. PPS 25 has now been replaced by the National Planning Policy Framework. The Technical Guidance accompanying the NPPF makes clear that the sequential test need not be applied where a Flood Risk Assessment has concluded that the development will not be in an area of flood risk because of physical changes since the production of flood risk maps.The objector also considers that the hazardous waste should, for the purposes of the Flood Risk Assessment, be regarded as a hazardous substance. If this were the case, more stringent requirements of where this should be located would apply. The NPPF, however, treats hazardous substances and hazardous waste separately for the purposes of flood risk assessment. There is no text in the NPPF to suggest that hazardous waste should be treated as a hazardous substance.” (my emphasis).

[27]At the meeting on 17 April 2012 the claimant addressed the committee again. Once again he contended that part of the development site was located in Flood Zone 3 and that this had been overlooked.

[28]At the meeting on 20 April 2012 one of the County Council’s officers amended paragraph 61 of the supplementary report, to advise the members that the site was large enough for a Strategic Waste Complex to be located in Flood Zone 1. The minutes record the amended paragraph:

“The applicants undertook a flood risk assessment which took account of the change to a local watercourse by the construction of the “megaditch”

. This change has not been registered on flood risk maps. The Flood Risk Assessment has concluded that because of the change in the location of the [watercourse], Pit 6 is no longer in an area of flood risk. The Environment Agency agrees with this conclusion and has no objection to the disposal of the Air Pollution Control residues in Pit 6. PPS25 has now been replaced by the National Planning Policy Framework. A strategic flood risk assessment was carried out to inform the preparation of the MWCS. A sequential test report was carried out following that flood risk assessment, and concluded there was sufficient developable area for a strategic waste complex to be located in Flood Zone 1. That sequential test report has been completed to the satisfaction of the Environment Agency. Therefore the policies [sic] requirements set out in the NPPF and the associated technical guidance have been met.” (my emphasis).

[29]The minutes also record the discussion of the issues relating to flooding. The committee was reminded that the Environment Agency had withdrawn its objection to the proposals but had advised the County Council to satisfy itself that the sequential test had been carried out. Then this discussion is recorded: “A member asked if it was correct that from the introduction of the NPPF on 27 March there was no requirement for a sequential test. The Flooding Consultant stated that in accordance with PPS25 and prior to the introduction of the NPPF there was a requirement for a sequential test. In accordance with PPS25 this test was conducted in support of the MWCS. A member challenged this and suggested the Committee was [misinformed] when it was informed that a second test was not needed. The Planning Officer said there was no need for a site specific test to be carried out because a strategic sequential test had been carried out. Another member referred to paragraph 61 and said they had been told there would be no hazardous waste on the site. That member was informed this related to the hazardous waste to be stored in Pit 6 from the EfW [plant] and not imported hazardous waste. It concerned the application to the EA for a waste management licence relating to Pit 6 for disposal of air pollution control residue. A member asked for clarity on the statement that a site specific test was not needed because a strategic flood assessment had been carried out. The Flooding Consultant said sequential testing had been done at landfill location level and therefore there was no separate requirement to do a site specific test. The site had been separately tested against other options that had been considered and the MWCS separate requirement for flood risk assessment and latest information was used to conduct the test. In answer to a member’s question about whether a flood risk assessment had been undertaken where Pit 6 was located, it was noted that it had been undertaken and had been reassessed as Flood Zone 1. The Planning Officer confirmed that Pit 6 was now in Flood Zone 1 because the megaditch has diverted the water around the site and as a consequence the flood risk level has changed. …”.

[30]At the meeting on 20 April 2012 the committee resolved to grant planning permission, subject to conditions that included the controls requested by the Environment Agency.

The issues for the court

[31]The claimant argued that in the selection of the site at Calvert the County Council had failed to follow the sequential approach prescribed in national policy on development and flood risk. At no stage, he said, had a proper sequential test been undertaken, conforming to the Government’s guidance in PPS25. And, he submitted, the failure to apply a site-specific sequential test to the project meant that there was now “a real prospect of dangerous hazardous waste being stored in an area of high flood risk”. The County Council had failed to assess this risk, as it was required to do by the Hazardous Substances Act 1990. The committee had been unaware of the true position when it came to make its decision.

[32]The claimant’s grounds divide into five main issues:(1) whether the County Council erred in law, in that its committee was wrongly told that no site-specific sequential testing was required under the guidance in the NPPF;

(2) whether the County Council erred in relying on the flood risk assessment submitted on behalf of FCC, which assumed that the area where the hazardous waste cell was to be created was not in a zone at risk of flooding;

(3) whether, given the change in the officers’ advice on flood risk, those who would have wished to make representations about the changed advice were unfairly denied the opportunity of doing so;

(4) whether the County Council’s committee was given wrong and misleading information about the risk of flooding; and

(5) whether the County Council misled itself in applying, or in failing to apply, the relevant requirements of the Hazardous Substances Act 1990.

Issue (1): the sequential approach

[33]The claimant submitted that the County Council was reluctant to face the choice between the Calvert site and the alternative site at Wapseys Wood. The only tender for its waste contract had come from FCC, and FCC was only interested in developing the site at Calvert. The procedure set out in PPS25 would inevitably have led to the selection of Wapseys Wood because it was the site with the lower risk of flooding. The County Council did not follow that procedure. It chose to avoid using the sequential test. Otherwise, it would have been left without a suitable tender. The claimant alleged that a “secret” site selection exercise had been carried out in 2007, and that the County Council had refused to say whether a sequential test was applied at that stage. But in any case the approach taken by the County Council’s committee in determining FCC’s application was unlawful. The committee was told that a site specific sequential test was not required under the new policy regime in the NPPF, and that was wrong. The officers’ advice on the sequential approach was inaccurate. The relevant guidance in PPS25 and in the NPPF was not followed. The members did not have the reassurance of any proper strategic sequential test. And, in the absence of a site specific sequential process for this project, there was a real prospect of hazardous waste being stored in an area of high flood risk.

[34]I do not see any force in those submissions.

[35]I cannot accept the allegation that the County Council carried out a “secret” selection exercise in 2007, and that it has been unforthcoming about the sequential testing, if any, undertaken at that time. This assertion finds no support in any evidence before the court.

[36]I also reject the suggestion that the County Council deliberately avoided carrying out a sequential test to make sure the Calvert site was chosen. There is no evidence to support that idea either. Nor do I think it can be argued in a claim for judicial review that the choice of the site at Wapseys Wood was the inevitable outcome of a sequential assessment. In their report to committee the officers explained (in paragraph 205) why Wapseys Wood could not be regarded as a suitable alternative to the application site.The advice they gave the members on that point was in my view legally unimpeachable. A similar conclusion can be seen in paragraph 97 of the core strategy inspector’s report.

[37]The submission that a sequential test was not carried out at the strategic level is incorrect. A sequential test was carried out for the development of the application site as a strategic waste site, including an energy from waste facility, during the core strategy process. In the course of that exercise it was concluded that there were no sequentially preferable sites available. This was confirmed in paragraph 88 of the core strategy inspector’s report. All of the areas on which the energy from waste buildings were to be erected and in which landfilling was to take place had been assessed as falling within Flood Zone 1. A flood risk assessment accompanied the planning application, in the environmental statement. This provided a site specific assessment of flood risk, taking account of the physical features of the site, including the mega-ditch. Thus, in the context of the specific proposals in the planning application, the flood risk associated with this particular development on this particular site had been assessed.

[38]I do not see how it can be said that the relevant policy at national level was ignored or misapplied. When FCC’s application was determined by the County Council’s committee the relevant national policy was contained in the NPPF, which had by then replaced PPS25. Paragraph 101 of the NPPF states the aim of the sequential test:

“to steer new development to areas with the lowest probability of flooding”

. It says that “[development] should not be allocated or permitted if there are reasonably available sites appropriate for the proposed development in areas with a lower probability of flooding”. The approach adopted by the County Council’s officers, and in turn the members, was not at odds with that principle. The site proposed for the energy from waste facility and the landfill pits were within an area classified as having the lowest probability of flooding. Parts of the application site had a higher flood risk. But that is not inconsistent with the conclusion of the sequential test undertaken in the course of the core strategy process that no sequentially preferable site was available for the development. Paragraph 103 of the NPPF indicates that site-specific flood risk assessments should demonstrate that, “within the site, the most vulnerable development is located in areas of lowest flood risk unless there are overriding reasons to prefer a different location”. That, as I understand it, is exactly what has been done in this case. Paragraph 104 of the NPPF states that “[for] individual developments on sites allocated in development plans through the Sequential Test, applicants need not apply the Sequential Test”. In the light of that advice, given that in this case an up-to-date sequential analysis had been undertaken at the strategic level, it was in my view reasonable for the County Council to conclude that a site-specific sequential test was not required for development consistent with the allocation supported by the strategic exercise. This, therefore, was not a case in which it was necessary for an “Exception Test” to be applied. The decision to grant planning permission for the proposed development was consistent with the sequential approach.

[39]When one reads the relevant passages in the officers’ report and their supplementary report and the record of the advice they gave when flooding issues were discussed at the committee meeting on 20 April 2012, it is, I think, impossible to find any error in the interpretation and application of national policy relating to development and flood risk. The officers understood both the general principles of the policy and the specific advice given on the sequential approach, and the guidance they gave the members on those matters was in my view appropriate. So far as I can see, the policy was properly applied to the facts. The members were not misled. They were advised about the sequential approach and how it related to this development. The policy context as it was in February 2012 was accurately explained to them in paragraphs 243 and 244 of the report the officers had prepared for the meeting on 14 February. When the application was before the committee again in April 2012 the officers summarized the relevant policy considerations in the NPPF in their supplementary report – in the amended paragraph 61 – and in the oral advice they gave at the meeting. Not only did the committee have the benefit of the officers’ advice; it also knew that the Environment Agency had been consulted and did not object to the proposals. The officers’ conclusions on the sequential approach were, in my view, perfectly clear. It is not the task of the court to scrutinize those conclusions beyond applying to them normal principles of public law. And it is not for the court to substitute its own judgment for that of the committee. I am entirely satisfied, however, that, in substance, the relevant policy principles were lawfully applied in this case.

[40]It follows that, in my view, there was no unlawful failure to apply the sequential approach to the project. So this premise for the claimant’s submission that there arose a real prospect of dangerous hazardous waste being stored in an area of high flood risk is not made good.

[41]I therefore reject this part of the claim.

Issue (2): the flood risk assessment

[42]The claimant said that, in the flood risk assessment submitted on behalf of FCC it had been wrongly assumed that the land on which a hazardous waste cell was to be created was not in a zone at risk of flooding. Developing this submission, he made four points:(1) that it is not permissible to redefine flood zones on the Environment Agency’s flood maps to allow for man-made flood defences;

(2) that in this case there was a basic error in that the flood risk assessment assumed the relevant flood map had not taken account of the presence of the mega-ditch;

(3) that the land in question is prone to flooding and often is flooded; and

(4) that the flood risk assessment was flawed, depending, as it did, on further work being done to enable the flood zones to be re-assessed, whereas the planning decision-maker ought to consider the proposals against the existing zoning. The consequence of all this, the claimant submitted, was that if government policy in the NPPF had been correctly applied the development of the mono-cell should not have been permitted.

[43]I do not accept those submissions.

[44]Mr Elvin and Mr Maurici said the claimant was attempting to use his claim for judicial review as an extension of his objection to the proposals on their merits. But, they submitted, his argument on this issue was not merely impermissible in a public law challenge; it was also wrong as a matter of fact. I agree.

[45]I shall not repeat what I have already said about the advice the members were given about government policy in the NPPF. But what I have said about that is relevant here as well.

[46]This part of the claim has to contend with the difficulty that the Environment Agency did not object to the proposed development on the grounds urged by the claimant. Mr Elvin and Mr Maurici emphasized that there is no evidence – as opposed to the claimant’s assertion – that the landfill site, including Pit 6, is at risk of flooding. And, they submitted, the notion that the proposed development has been approved in a “high flood risk area” is misconceived. Pit 6 is an old clay pit, with an impermeable base in which rainwater collects. It is no longer in an area of flood risk. It is protected by the mega-ditch. The Environment Agency clearly accepted that. It was not anxious about flooding in Pit 6.

[47]I do not think the criticisms the claimant made of the flood risk assessment are well founded. It seems clear that the Environment Agency’s flood maps do not take account of the mega-ditch. Despite having had the opportunity to do so, the Environment Agency did not dispute the conclusions in the passages of the flood risk assessment where this matter is dealt with – in particular paragraphs 3.1.1 and 4.5.1 and section 7.0.In view of what the Environment Agency said in its letter of 23 December 2011,I see no reason to doubt that it accepted the analysis underpinning those conclusions. And I cannot accept that the Environment Agency’s flood maps displace the conclusion, based on SLR’s hydraulic modelling, that Pit 6 is not in an area at risk of flooding.

[48]As Mr Elvin and Mr Maurici submitted, therefore, this ground of the claim reduces to a challenge to the rationality of the expert judgment presented in the flood risk assessment, a judgment not contradicted by the Environment Agency and ultimately accepted both by the County Council’s officers and by its members. In my view, that argument cannot succeed.

Issue (3): fairness

[49]The claimant said that when the committee met on 20April 2012 the officers’ advice on flood risk changed, but objectors were not given sufficient notice of this and were unable either to consider the new advice or to make representations about it to the members. The claimant submitted that the “notice requirements” and “other requirements of the Local Government Act” were not met.

[50]I do not see any force in those submissions. I do not accept that any unfairness to the claimant, or to anyone else, arose from the officers correcting their written advice to the committee. They were entitled to do that. Indeed, they might have been criticized if they had not done it. What the claimant is really contending for is the chance to have the last word on issues he had already tackled in both written and oral representations. He suffered no unfairness. His objection was considered by the officers. He was not prevented from putting his views before the members. He had two opportunities to address the committee, first at its meeting on 14 February 2012 and then again at the meeting on 17 April 2012. I was told that on the second occasion he spoke for about 10 minutes. There is no evidence that the members did not understand his objection or that they overlooked it. His grievance is not about any change in the proposals themselves, or in any measures relevant to the avoidance of flood risk. The proposals did not change. What happened was that the officer reporting on the proposals to the committee clarified the advice he was giving. There was no requirement in any statutory provision, or in basic fairness, for the claimant to be given yet another opportunity to address the committee at that stage.

[51]In my view, this ground of the claim is untenable.

Issue (4): wrong and misleading information

[52]The claimant submitted that wrong and misleading information was given to the County Council’s committee on the issues relating to flood risk and flooding. He did not elaborate on this ground beyond the submissions he had already made on the other issues. I do not accept it. I do not see anything factually inaccurate or misleading in the information presented to the committee. Nor do I see any public law error in the members’ assessment of the material before them. Their conclusions were informed by the relevant considerations to which the officers drew their attention, and reached in the light of representations made by objectors, including the claimant.

[53]This ground of the claim must therefore fail.

Issue (5): the Hazardous Substances Act 1990

[54]The claimant submitted that the Hazardous Substance Act 1990 applied to the material described as “fly ash”, which, he said, comprises air pollution control residues. He submitted that the “specific applications required by [the Hazardous Substances Act] have not been implemented”. This, he submitted, had led to a failure on the part of the County Council “to properly defend against serious toxic contamination in the event of flooding and indeed possibly in the normal process of waste handling in normal non-flood conditions”. He said the committee was given information that was “misleading about the application of these requirements”.

[55]I cannot accept that argument.

[56]In my view it does not recognize the division of responsibilities between the County Council as a planning authority and the Environment Agency when determining an application for an environmental permit. Planning does not need to duplicate controls in other legislation, and generally should not.

[57]As I have said, there is no evidence to disprove the finding that Pit 6 is not in a flood risk zone and not liable to flood. The Environment Agency did not contest that finding. It should also be remembered that the existing approvals for landfilling on the site do not restrict the type of waste that can be deposited in Pit 6. However, as the County Council’s officers explained in paragraph 32 of their report, the proposed construction of a mono-cell in the southern section of Pit 6 and its use for the disposal of air pollution control residues – which are defined as a hazardous waste – will require an environmental permit. Objectors concerned about the nature of the waste that is to be deposited in Pit 6 will have an opportunity to make their views known through the permit process. The Environment Agency will have to be satisfied that no risks of contamination arise. And it is, I think, inconceivable that an environmental permit would be granted if the Environment Agency believed the development might cause “serious toxic contamination”, whether in the event of flooding or in normal conditions.

[58]The claimant did not identify any specific provisions of the Hazardous Substances Act that he thought would be breached. That statute is concerned with the prevention and management of risks posed by the storage and use of hazardous substances, a separate regime from the one governing the disposal of hazardous waste. The disposal of hazardous waste is controlled by the Environment Agency through environmental permits. The court may assume that the Environment Agency will not exercise its power to grant or refuse an environmental permit in such a way as to expose local residents, or others, to the risk of contamination from the proposed development.

[59]This ground too is unarguable.

Delay

[60]Both Mr Elvin and Mr Maurici submitted that permission to apply for judicial review ought to be refused in any event because of the claimant’s delay. The claim was lodged five weeks after the time limit of three months in CPR 54.5. This was “undue delay”. The claim could only proceed if the court was satisfied that time should be extended under CPR 3.1(2)(a). And it was not necessary for an opposing party to show prejudice resulting from the delay. There was no good reason here for extending time. Mr Elvin and Mr Maurici invoked the well-known jurisprudence on delay in proceedings for judicial review, including Finn-Kelcey v Milton Keynes Borough Council [2009] Env. L.R. 17 (in the judgment of Keene L.J. at paragraphs 20 to 27). Relying on the evidence of Mr Darl Sweetland, the County Council’s officer in charge of the procurement process, in his witness statement of 20 December 2012,and that of Mr Plant in his witness statement of 6 February 2013, Mr Maurici submitted that FCC would suffer substantial hardship if, despite the claimant’s delay, the claim were allowed to go ahead and ultimately succeeded. This, submitted Mr Maurici, was a clear case for the court to exercise its power to refuse permission under section 31(6) of the Senior Courts Act 1981.

[61]The claimant sought to excuse his delay. He said the County Council had failed to deal with a complaint in which he had been trying to resolve the matters that ultimately had to be brought before the court in his claim for judicial review.

[62]As Mr Elvin pointed out, however, the claimant had made that complaint in March 2012, about a month before the decision to grant planning permission was taken and four months before the permission was actually issued. In his complaint the claimant had alleged that the County Council had denied him a fair opportunity to make representations about the proposals. The complaint did not go to the substance of the decision to grant planning permission. Mr Elvin said the County Council’s complaints process could never have led to the planning permission being quashed, which was the relief the claimant had sought in his claim. As Keene L.J. had held in Finn-Kelcey (at paragraph 27), sending a letter before action is no substitute for actually lodging a claim. Mr Elvin submitted that the same might be said of a complaint such as the claimant had made here. In this case, however, there had been no clear warning that a claim attacking the planning permission was going to be launched. On 6 December 2012 the County Council was told that the claimant was going to seek “Judicial Review or other external review” of its handling of his complaint.

[63]The claimant countered those submissions. He said he had sought to resolve his concerns through the County Council’s complaints procedure. He accused the County Council of “extensive procrastination” in the handling of his complaint. He had been waiting a long time – 299 days by the time he submitted his skeleton argument on 26 February 2013 – for an answer to a simple question about the sequential test. He gave several examples of the County Council’s tardiness. Each phase in its three-phase complaints process should have taken only 28 days. But the first two took five months and three weeks, and the third, which began on 18 September 2012, had still not been completed by the time the claim was filed in Birmingham on 8 November 2012 – only two weeks out of time. The claimant said he had not known about the three months time limit for issuing a claim for judicial review. But in any case the late submission of the claim was not his fault. It was the County Council’s. The County Council had not complied with its own complaints procedure, nor explained why it was taking so long. Further delay had been caused when the case was transferred to London. Nor was there any real prejudice either to the County Council or to FCC. Mr Prideaux’s claim for judicial review was still live. Natural England was going to have to decide whether to grant a derogation licence for works affecting great crested newts. And it was plainly in the public interest that the important issues raised in this claim should come before the court.

[64]I accept the submissions of Mr Elvin and Mr Maurici. There clearly has been undue delay in this case. The claimant was of course entitled to pursue his complaint against the County Council – which is not to say that I think the complaint itself was justified. Perhaps the County Council did not deal with that complaint as swiftly as it might have done. But the complaints procedure was not a potential source of the remedy the claimant has sought in these proceedings. What he is asking for in his claim for judicial review is an order to quash the planning permission. The complaints procedure was never going to achieve that. The claimant could and should have lodged his claim much sooner than he did, even though his complaint was still with the County Council. Ignorance of the time limit is no excuse. Nor is the fact that another claim for judicial review had been made, in which the same planning permission was impugned. Even if there were no question of any prejudice either to FCC or to the County Council, I would regard the claim as having been brought too late. And I see no good reason for extending time.

[65]Therefore, as well as concluding that there is no real substance in the claimant’s grounds, I think it would have also been right to refuse permission because of his delay.

Conclusion

[66]The claim is not properly arguable on any of the grounds advanced by the claimant in his written and oral submissions, and has in any event been brought too late. Permission to apply for judicial review is therefore refused.