Birch, R (on the application of) v Barnsley Metropolitan Borough Council

This is an appeal against the order dated 4 March 2010 of Lord Carlile of Berriew QC sitting as a Deputy Judge of the High Court in R (Birch) v Barnsley Metropolitan Borough Council and Eric Danforth [2010] EWHC 416 (Admin), allowing the respondent’s claim for judicial review and quashing a planning permission dated 27 February 2009 granted by the appellant to the interested party for the use of land at Bagger Wood Hill, Hood Green, Barnsley ("the site") as a composting facility to receive green waste. The respondent is a local resident. The interested party, who owns the site, has not taken any part in these proceedings.

The planning history is summarised in paragraphs 2 to 7 of Lord Carlile's judgment. The planning permission for the use of land at the site as a composting facility was subject to a number of conditions. Condition 2 provided that:

Condition 2 was imposed "for the avoidance of doubt". The supporting statement described the composting process. Green bin waste collected from residential areas would be delivered to the site. It would be stockpiled, then batches from the stock pile would be shredded and arranged in windrows approximately 30 metres long. After an appropriate time each row would be turned and mixed to ensure that aeration took place. The description of the process concluded:

The supporting statement said that "a separate number of documents had been prepared to accompany this application to provide greater detail on specialist matters". Those documents included a copy of a letter from the architect representing the interested party, Nuttall Yarwood & Partners Limited ("NYP") to the council dated 14 August 2007 and a plan, drawing number 38/3802. That letter said in part:

Plan 38/3802 showed the areas of arable land (53 hectares) and old spoil areas (3 hectares) on which it was proposed that spreading should take place. We have also been provided with a copy of Revision A to that plan, referred to in condition 2(g) in the permission, which shows a reduction in those areas. In particular the northern boundary of the northernmost spreading area was moved southwards, so the spreading area was further from the residential areas to the north.

The respondent had to decide whether the application for planning permission was an "EIA application", ie an application for permission for "EIA development" for the purposes of the Town and Country Planning (Environmental Assessment) Regulations 1999 ("the Regulations").

The application was an application for permission for EIA development if the proposed development fell within one of the descriptions of development in Schedule 1 or Schedule 2 of the Regulations, if in the latter case it was "likely to have significant effects on the environment by virtue of factors such as its nature, size or location" (see Regulation 2). It is common ground that the proposed development did not fall within Schedule 1 to the Regulations.

When preparing a screening opinion for the purposes of the Regulations the responsible officer proceeded on the basis that the proposed development did not fall within one of the descriptions of development in Schedule 2. In answer to the question: "Is the proposal in Schedule 2 (column 1) or similar?", he answered “No”. That continued to be the council's position in its written skeleton argument before Lord Carlile. However, during the course of the hearing before Lord Carlile it was conceded on behalf of the council that, at least arguably, the proposed development fell within paragraph 11(b) of Schedule 2: an "Installation for the disposal of waste ... (where) ... the area of the development exceeds 0.5 hectare".

Before this court the council concedes, in my view correctly, that the application did fall within paragraph 11(b) in Schedule 2. Even if the areas on which it was proposed to spread the composted material are left entirely out of account, the area which was proposed to be used as a composting facility for the delivery of the green waste, its stockpiling, shredding, arranging into windrows, turning and mixing, was at 1.4 hectares, well in excess of the 0.5 hectare threshold. Thus, the screening opinion was in error when it answered "No" to the question: "Does it [the proposed development] exceed criteria in Schedule 2 Column 1…?” (this should refer to column 2) and when it answered “Not applicable” in answer to the question relating to the size of the development "Does it exceed sizes in Schedule 2…?"

It might be thought that these errors in the screening opinion would be sufficient in themselves to fatally flaw the officer's conclusion that "Due to the scale and nature of the proposal it is not considered that an EIA is required". On the face of the screening opinion, the officer who had reached that conclusion had been mistaken as to the nature of the proposal (he did not appreciate that it was an installation for the disposal of waste) and had either been mistaken or had thought it unnecessary to reach any conclusion about its size.

Mr Corner QC, on behalf of the council, submitted that those errors were of no consequence because the officer carrying out the screening opinion, although he wrongly assumed that the proposed development was not Schedule 2 development, had nevertheless "hedged his bets" by carrying out a full screening opinion, taking into account all relevant matters including the scale of the proposal. Since this was Schedule 2 development, the question for the officer was whether by virtue of factors such as its nature, size and location, it was likely to have significant effects on the environment. Given the errors in the screening opinion as to both the nature and the size of the proposal, I find it difficult to see how what was carried out could sensibly be described as a full screening opinion which took all relevant matters into account.

But there is in my view a more fundamental difficulty with the approach that was adopted in the screening opinion. Although the application sought planning permission for the composting facility and not for the subsequent spreading of the composted material, the supporting statement referred to in Condition 2 of the permission and the documents referred to in that statement (see above) made it clear that, unsurprisingly, the composting process was not being proposed as an end in itself. It was also proposed to spread the material composted on the site over defined spreading areas.

When deciding for the purposes of the screening opinion whether the proposed development was likely to have significant effects on the environment, the officer had to consider not merely the characteristics of the development itself but also its characteristics having regard to "the cumulation with other development": see paragraph 1(b) in Schedule 3 to the Regulations, which sets out the selection criteria for screening Schedule 2 development.

This obligation to consider cumulative effects mirrors the obligation to consider such effects when an environmental statement is being prepared (see paragraph 4 of Schedule 4 to the Regulations). The requirement is reflected in the screening opinion dated 11 February 2002 prepared by the officer in this case. Under the subheading "Characteristics of the Development ... The cumulation with other development" there are the questions whether “the proposal will be undertaken in conjunction with other development? Will there be any cumulative impact?" The officer’s answer to these questions was “No”.

The appellant's skeleton argument explains that the screening opinion did not consider the likely impact of the spreading operation because "the council did not consider that this operation would involve development and since that operation was not included in the scope of the development in respect of which planning permission had been sought". At the heart of Mr Corner's submissions to us was the proposition that the officer was neither required nor entitled to assume that the composted material which would be spread would still be waste. If the material was no longer waste, then spreading it would be an agricultural use of land which would not amount to development. In effect, the council was entitled to rely on the presumption of legality. The interested party would not carry out the spreading operation in an unlawful manner.

On behalf of the respondent Mr Hyam submitted in his supplemental skeleton argument that "development" in the Regulations must be interpreted having regard to the broad purpose of Environmental Impact Directive 85/337/EC ("the Directive") which the Regulations transpose into domestic law. The Directive requires the environmental assessment of "projects" and the ECJ has made it clear that a broad purposive approach must be adopted in considering what is the ambit of a project for the purposes of the Directive. He submitted that the spreading of the composted material was plainly a part of the project (the composting process was not an end in itself, unless the composted material was spread then the site would rapidly fill up) and if it was to be disregarded because it was not development as defined in section 55 of the Town and Country Planning Act 1990 ("the Act"), then the Regulations would not have effectively transposed the Directive.

For my part, I do not consider that it is necessary to decide that issue. I readily accept the council's submission that the officer was not bound to assume that the composted material which would be spread would still be waste, so that its spreading would amount to development. But equally, I do not accept that the author of the screening opinion was entitled to proceed on the assumption that the spreading of the composted material would not amount to development. It is common ground between the parties that the spreading would not amount to development for the purposes of the Act if the material which was to be spread had ceased to be waste. Once the composted material had ceased to be waste, its spreading would not be the use of land for the disposal of waste but the use of land for agricultural purposes, which is deemed not to be development by virtue of section 55(2)(e) of the Act. Thus the spreading of the composted material could be ignored for the purposes of the screening opinion (assuming, but not deciding, that the Regulations do, effectively, transpose the Directive) if and only if conditions were proposed which would ensure that the quality of all of the composted material to be spread would be of such a high quality that it would have ceased to be waste.

There is no suggestion in the screening opinion as to how this might be achieved. The screening opinion recognised that there was a "potential" for pollution/nuisance to be caused and that such impacts would be "potentially" significant. It went on to say that the impacts "should be controllable", but did not say how. Although reliance is now placed on the Environment Agency's “Quality Protocol for the production and use of quality compost from source-segregated biodegradable waste”, September 2008 ("the Protocol"), this postdated the screening opinion. The applicant had not suggested in his application that any particular quality of composted material was to be spread, and no minimum standard is ensured by any of the conditions that were imposed upon the planning permission. The permission does not prescribe , whether by reference to the Protocol or to any other criterion, what must be the minimum quality of the composted material that is to be spread. Nor, according to the two officers' reports to members, would a minimum standard such as to ensure that the composted material would have ceased to be waste necessarily have been imposed by the Environment Agency using its powers. The first report said:

The second report dealt with this aspect of the matter in a little more detail saying:

The fact that an exemption licence is required does not of course mean that the material to be spread would not be waste. It merely means that it would be a type of waste or method of disposal which can be exempted from the full panoply of controls that normally govern the disposal of waste. Thus the officer's proposition to the members was not that all of the composted material would be of such a quality that it would have ceased to be waste, but that it would possibly be of such a quality, and to the extent that it did not achieve the requisite quality an exemption licence would be required (because the composted material would continue to be waste).

Both at the stage of the screening opinion and even at the later stage when the planning officers were reporting to members, the question whether the composted material to be spread would or would not have ceased to be waste was left entirely open. Mr Corner conceded, fairly, that the council simply could not know whether the spreading of the composted material would or would not amount to development in those circumstances. He submitted, however, that the council could and indeed had to assume that the interested party would act in accordance with the law. Since planning permission was neither sought nor obtained for the spreading operation, spreading the composted material other than as an agricultural operation would amount to unlawful development in respect of which the council could issue an enforcement notice. In carrying out a screening operation the council was not required to consider unlawful development which might occur. If such development was to occur, then the council had ample powers under the Act to bring it to a halt.

The submission is ingenious and was presented attractively, but in my judgment it is flawed. Of course, as a matter of generality, a local planning authority faced with an application for an apparently lawful development is not required to speculate as to what might be the environmental effects if further unlawful development were to be carried out. In the present case, however, it was plain from the documents accompanying the application, which were incorporated into the planning permission itself by Condition 2, that the proposal involved not merely the composting of the material, but also its spreading. Spreading could lawfully be carried out either without planning permission if it was merely an agricultural operation or with the benefit of a further planning permission if it amounted to the disposal of waste. Thus this part of the proposal could be ignored as one of the cumulative effects of the development only if the council could be confident that the spreading would not amount to development. Whether it would amount to development was critically dependent on there being a means of ensuring that the quality of the composted material was such that it was no longer waste. In the absence of adequate controls, there would be cumulative effects which could not be ignored. The approach adopted in the screening opinion, which merely stated that the impacts "should be ... controllable" was not merely inadequate, it was contrary to the underlying purpose of the Regulations (see R(Lebus) v South Cambridgeshire District Council [2002] EWHC 2009 (Admin) at paragraph 45 and Bellway v Gillespie [2003] EWCA Civ 400 per Laws LJ at paragraph 46.

An EIA was required so that the proposed controls could be identified and their adequacy thoroughly tested through the EIA process. In the absence of a condition in the planning permission prescribing, perhaps by reference to the Protocol, some minimum standard for the material to be spread, it would necessarily be a question of fact and degree whether the material which was being spread was still waste or had ceased to be waste. The Protocol would certainly be relevant for the purpose of answering that question and might well be adopted by the decision-maker as the relevant standard. But not having been expressly incorporated into the planning permission, it could not be assumed that it would necessarily be determinative.

It is precisely this kind of issue -- what controls or conditions are necessary in order to ensure that there will be no cumulative impact -- that should have been considered in an EIA. I would also accept Mr Hyam's submission that the council's "wait and see, and serve an enforcement notice if necessary” approach is the very antithesis of the precautionary principle which underlies the Directive. Recital 1 to the Directive is in this terms:

There is a further answer to the council's submission that its enforcement powers would be sufficient to avoid any possible breach of planning control. In the present case it is known that spreading will be required. It is not known whether planning permission will be required for that spreading operation. If planning permission is required, then, when it comes to deciding whether to grant planning permission in respect of the spreading operation, either as an alternative to issuing an enforcement notice or when the Secretary of State comes to consider an appeal against such an enforcement notice on the ground that planning permission ought to be granted, the decision-maker would have to have regard to the fact that planning permission had already been granted for a composting facility, which would be entirely useless unless permission was also granted for the spreading of the composted material. The planning permission already granted would be a most material consideration. In effect, the pass might well have been sold; precisely the kind of circumstance that the Regulations seek to avoid by requiring consideration of the cumulative effects of any proposed EIA development at the outset of the application process.

In its grounds of appeal the council made a number of criticisms of Lord Carlile's reasoning. It is unnecessary in my judgment to consider those criticisms because, for the reasons set out above, I am entirely satisfied that the judge reached the correct conclusion.

For my part I would dismiss this appeal.

I agree.

I also agree.