Blewett, R (on the application of) v Derbyshire County Council

MR JUSTICE SULLIVAN: Introduction

In this application for judicial review the claimant seeks a quashing order in respect of a grant of planning permission dated 23rd December 2002 by the defendant to the interested party for "land reclamation by waste disposal with restoration to agricultural, woodland, grassland and nature conservation uses at Smith's void, Former Glapwell Colliery, Palterton Lane, Sutton Scarsdale".

Glapwell Colliery closed in the mid-1970s leaving two spoil tips. Planning permission was granted for a reclamation scheme which involved tip washing, opencast mining of shallow seams under the spoil tips and the replacement of the opencast mine spoil and washed deep mine spoil into a landscaped profile. Smith's void was to be reprofiled as part of these operations but the contractor employed to carry out the coal recovery scheme went into receivership, leaving the scheme incomplete. Voids had been created within the reprofiled spoil tips as part of the reclamation works to facilitate landfills.

Glapwell 1 was the first of the voids to be filled. Over a five year period between 1983 and 1988 it accommodated some 750,000 cubic metres of waste. Planning permission was granted in 1984 for the filling of two further voids, Glapwell 2 and 3. Waste disposal in Glapwell 2 commenced in 1988, and finished in November 2002 after planning permission had been granted in 1995 for additional tipping. No tipping took place in Glapwell 3 (Smith's void) pursuant to the 1984 permission, but that planning permission remains valid until December 2003 (operations were limited to a period of 15 years from the start of tipping). The 1984 planning permission envisaged that Glapwell 3 would have a capacity of about 1 million cubic metres. The present proposal involves tipping around 850,000 cubic metres of domestic, industrial, commercial and inert waste over a period of four years, with the overall operational programme, including restoration to agriculture et cetera, taking six years.

The application site covers about nine hectares and is located within one kilometre of the villages of Glapwell, Palterton, Bramley Vale and Doe Lea. The claimant lives in Bramley Vale. In his witness statement he states that the nearest site boundary of Glapwell 3 is about 800 metres from his home, which is about 200 metres from the nearest site boundary of the existing tipped voids, Glapwell 1 and 2.

The claimant is registered disabled and suffers from chronic bronchitis and also from asthma and angina. He contends that these conditions have been exacerbated by dust and smells from the landfilling operations on Glapwell 1 and 2. He also complains of noise from the landfilling operations, that some of his pet pigeons have been killed by rats living in the landfills, and that he is plagued by the noise and droppings of the many seagulls who are attracted to the landfills. The claimant has actively opposed the grant of planning permission for Glapwell 3. He made representations to the defendant both personally and in his capacity as a member of the "Stop the Landfill Group".

The defendant County Council is both the waste planning authority, and thus responsible for granting planning permission for landfilling operations, and the waste disposal authority for its area. Derbyshire Waste Limited (the interested party) was set up by the County Council, pursuant to arrangements made under section 30 of the Environment Protection Act 1990, to dispose of Derbyshire's waste. The company remains 20 per cent owned by the County Council and disposes of the County's waste under a long term contract with the County Council.

The development proposed in the application for planning permission was a "Schedule 2" development as defined by the Town and Country Planning (Environmental Impact Assessment) (England and wales) Regulations 1999 ("the Regulations"). An environmental statement was required if the development was likely to have significant effects on the environment by virtue of factors such as its nature, size or location. The application was accompanied by an environmental statement which was submitted to the County Council on 8th February 2001.

The defendant's Regulatory Planning and Control Committee first considered the application on 11th March 2002. The defendant's Director of Environmental Services advised members as to the merits of the application in a 55-page report ("the Report"). He recommended that planning permission should be granted, subject to no less than 53 conditions.

On the morning of the meeting the Secretary of State issued an Article 14 direction preventing the defendant from determining the application. Members resolved that had they been in a position to determine the application they would have granted planning permission, as recommended in the Report, subject to a minor amendment to one of the recommended conditions.

Application for permission to apply for judicial review of the Committee's resolution was lodged on 22nd April on a precautionary basis, since at that time it was unclear whether the three month period prescribed by CPR Part 54.5(1)(b) ran from the date of the resolution to grant planning permission or from the date of the permission itself. I adjourned consideration of the application pending the outcome of the Secretary of State's Article 14 direction. In the event, the Secretary of State decided not to call in the application, but the judicial review challenge had by then been overtaken by the decision of the House of Lords in R (Burkett) v Hammersmith & Fulham London Borough Council [2002] 1 WLR 1593. Although the challenge to the resolution to grant planning permission was premature in the light of that decision, the application for permission to apply for judicial review was adjourned to enable the claimant to challenge the grant of planning permission in due course, if so advised. On 4th November 2002 the Committee reconsidered the application for planning permission. In addition to the Report, members were provided with a Joint Report of the County Secretary and Director of Environmental Services. The Joint Report responded to the contentions which were being advanced in the judicial review proceedings. The officers recommended that planning permission should be granted. Members resolved to grant planning permission and permission was granted on 23rd December 2002.

Having considered the amended claim form, Collins J granted permission to apply for judicial review on 29th April 2003.

On behalf of the claimant, Dr Wolfe submitted that the decision to grant planning permission was unlawful on three grounds:

In his submissions before me Dr Wolfe placed ground (3) in the forefront of the claimant's case.

I find it convenient to begin with ground (2), I will then consider ground (1) and finally ground (3).

Schedule 4 to the 1994 Regulations implements certain provisions of Council Directive 75/442/EEC ("the Waste Framework Directive"). Article 4 of the Directive provides:

In any event, the defendant is a competent authority and when it granted planning permission it was discharging a specific function: see paragraphs 1 and 3 and Table 5 in Schedule 4.

Paragraph 4 in Schedule 4 sets out the relevant objectives in relation to the disposal or recovery of waste. They include:

The nature of the obligation imposed by paragraphs 2 and 4 of Schedule 4 was considered by the Court of Appeal in R (Thornby Farms Ltd) v Daventry District Council; R (Murray) v Derbyshire County Council [2002] QB 503 [2002] EWCA 31. Having reviewed the authorities, Pill LJ, with whom the other members of the court agreed, concluded in paragraph 53 of his judgment:

Thus, the question is whether the Committee kept the objective, of avoiding causing nuisance through noise or odours, in mind when deciding to grant planning permission. It is common ground that, in the absence of any evidence to the contrary, members approached these issues on the basis set out in the Report and Joint Report.

The Report said this under "Noise":

Under the heading "Odour" the Report said this:

The Joint Report responded to the contention in the application for permission to apply for judicial review that the defendant had failed to give effect to the relevant Waste Framework Objectives in these terms:

The officers recommended conditions in relation to noise and odour control which were included in the planning permission, as follows:

"Olfactory assessment" was dealt with in condition 22:

In my judgment it is plain from these references that the Committee, when granting planning permission, did keep the relevant objectives in mind. The objective is not to avoid noise or odours altogether. Such an objective would be wholly unrealistic in the context of a waste disposal operation. The objective is to avoid "causing nuisance through noise or odours". Thus, an approach which seeks to reduce the impact of noise and smells so that they will not cause a nuisance is in accordance with the objectives. Dr Wolfe drew a distinction between an approach which merely sought to reduce noise below a threshold, and an approach which sought to minimise the impact of noise or smell. Provided the threshold is set with the objective of avoiding the creation of a noise or smell nuisance, I can see no objection to the former approach. That is the objective of the noise limits recommended in MPG 11, which was referred to in the Report. In effect, conditions 19 and 20 impose the noise limits recommended in MPG 11. Dr Wolfe points to the fact that MPG 11 explains that the recommended limits are not intended "to become the norm at which operations work. Operators are asked to take any reasonable steps they can to achieve quieter working wherever this is desirable and technically feasible having regard to the principle of BATNEEK [(Best Available Techniques Not Entailing Excessive Cost)]" (paragraph 31). He contrasts condition 20, which follows this advice - "noise levels from temporary operations shall be minimised as far as practicable" - with condition 19 which contains no such requirement, merely an upper limit of 55dB(A)Leq (1hr). The difference between the two conditions is readily explained by the fact that noise levels at the upper limit set by condition 20 would be perceived as very noisy indeed. The purpose of the high upper limit is to enable such operations as the construction of baffle mounds around the perimeter of a landfill site. Temporary inconvenience is the price residents will have to pay for long term benefits (paragraph 61 of MPG 11). It is reasonable to expect that an operator will try to minimise such high levels of noise as far as practicable.

As explained in paragraph 34 of MPG 11, the lower limit in condition 19 "is roughly equivalent to a noise made by a person talking normally, and is generally thought to be a tolerable noise level; above this level, continuous noise could well cause annoyance". Limiting the noise of operations to such a threshold is wholly in accordance with the objective of not causing noise nuisance. Moreover, even if condition 19 was deficient in this respect, because it should have incorporated a requirement to minimise the noise levels arising from operations as far as practicable, the deficiency would not mean that members had not kept the objective in mind when deciding to grant planning permission. The fact that a decision taker has not imposed the most effective condition that might (with the benefit of hindsight) have been devised does not mean that he failed to keep the relevant objective in mind.

The original claim form in these proceedings, to which the Joint Report responded, criticised the Report's treatment of noise and odour issues, but did not suggest any amendment to the proposed conditions. Nor is any such criticism made in the replacement claim form challenging the grant of planning permission on 23rd December 2002.

So far as odour control is concerned, it is difficult to see what more could reasonably have been done by the defendant. It was submitted that the scheme required by condition 22 merely provided for monitoring, but that is clearly wrong. The scheme must cover not merely the monitoring but also the "control of smells", and "shall include ... what would trigger remedial action" and "details of remedial action that would be taken".

In his skeleton argument Dr Wolfe referred to a "proof of the pudding test". Applying such a test, the proof of the pudding under ground (2) is that the claimant has not cast any doubt on the conclusions in relation to noise and smell in the Report, and has not suggested any better conditions, save for the addition of a general requirement to reduce noise below the threshold set in condition 19. By no stretch of the imagination could such an omission indicate that there had been a failure to keep the relevant objectives in mind. Accordingly, I reject ground (2) of the challenge.

As mentioned above, the application for planning permission was accompanied by an environmental statement. The environmental statement was a lengthy document comprising 15 chapters and 7 technical appendices. It is not suggested that the environmental statement failed to mention the potential impact of the proposed development on groundwater and human health, rather it is submitted that the manner in which these issues were dealt with was inadequate. In summary, the assessment of likely impact and the description of the necessary mitigation measures were left over for subsequent determination.

Where there is a document purporting to be an environmental statement, the starting point must be that it is for the local planning authority to decide whether the information contained in the document is sufficient to meet the definition of an environmental statement in Regulation 2 of the Regulations:

The local planning authority's decision is, of course, subject to review on normal Wednesbury principles: see R v Cornwall County Council ex parte Hardy [2001] JPL 786, per Harrison J at paragraph 65, applying R v Rochdale Metropolitan Borough Council ex parte Milne [2001] Env LR 416 at paragraph 106.

Information cable of meeting the requirements of Schedule 4 to the Regulations must be provided: see Hardy (ibid) and R v Rochdale Metropolitan Borough Council ex parte Tew [1999] 3 PLR 74 at 95G.

Part I of Schedule 4 requires the environmental statement to provide "a description of the likely significant effects on the environment ..." (paragraph 4) and "a description of the measures envisaged to prevent, reduce and where possible offset any significant adverse effects on the environment". Part II of Schedule 4 requires:

Dr Wolfe referred to the speech of Lord Hoffmann in Berkeley v Secretary of State for the Environment [2001] 2 AC 603 at pages 615 to 616, which, he submitted, "emphasised the absolute nature of the requirement to produce an environmental statement in the correct form and to comply with the procedural requirements". Lord Hoffmann's speech must be considered in its context. Berkeley was a case where there had been no environmental statement. Even in such a case the House of Lords was prepared to accept that "an EIA by any other name will do as well. But it must in substance be an EIA" (see page 617). If an application for planning permission has been accompanied by a document purporting to be an environmental statement, can it be said that that document falls outside the definition of environmental statement in Regulation 2 (so that the local planning authority is unable to grant planning permission: see regulation 3(2)) because it has failed to describe a likely significant effect on the environment subsequently identified by the local planning authority, or a particular mitigation measure thought necessary by the local planning authority? The omission might have been due to an oversight on the part of those preparing the environmental statement, or to a deliberate decision because it was not considered by the author of the environmental statement that a particular environmental effect was likely, or, if likely, that it was likely to be significant, or because the author of the environmental statement was unfamiliar with the particular mitigation technique, or because he considered that mitigation was unnecessary.

In my judgment, the fact that the local planning authority's consideration of the application leads it to conclude that there has been such an omission does not mean that the document is not capable of being regarded by the local planning authority as an environmental statement for the purposes of the Regulations.

The Regulations envisage that the applicant for planning permission will produce the environmental statement. It follows that the document will contain the applicant's own assessment of the environmental impact of his proposal and the necessary mitigation measures. The Regulations recognise that the applicant's assessment of these issues may well be inaccurate, inadequate or incomplete. Hence the requirements in Regulation 13 to submit copies of the environmental statement to the Secretary of State and to any body which the local planning authority is required to consult. Members of the public will be informed by site notice and by local advertisement of the existence of the environmental statement and able to obtain or inspect a copy: see Regulation 17 of the Regulations and Article 8 of the Town and Country Planning (General Development Procedure) Order 1995.

This process of publicity and public consultation gives those persons who consider that the environmental statement is inaccurate or inadequate or incomplete an opportunity to point out its deficiencies. Under Regulation 3(2) the local planning authority must, before granting planning permission, consider not merely the environmental statement, but "the environmental information", which is defined by Regulation 2 as "the environmental statement, including any further information, any representations made by any body required by these Regulations to be invited to make representations, and any representations duly made by any other person about the environmental effects of the development".

In the light of the environmental information the local planning authority may conclude that the environmental statement has failed to identify a particular environmental impact, or has wrongly dismissed it as unlikely, or not significant. Or the local planning authority may be persuaded that the mitigation measures proposed by the applicant are inadequate or insufficiently detailed. That does not mean that the document described as an environmental statement falls outwith the definition of an environmental statement within the Regulations so as to deprive the authority of jurisdiction to grant planning permission. The local planning authority may conclude that planning permission should be refused on the merits because the environmental statement has inadequately addressed the environmental implications of the proposed development, but that is a different matter altogether. Once the requirements of Schedule 4 are read in the context of the Regulations as a whole, it is plain that a local planning authority is not deprived of jurisdiction to grant planning permission merely because it concludes that an environmental statement is deficient in a number of respects.

Ground 1 in these proceedings is an example of the unduly legalistic approach to the requirements of Schedule 4 to the Regulations that has been adopted on behalf of claimants in a number of applications for judicial review seeking to prevent the implementation of development proposals. The Regulations should be interpreted as a whole and in a common-sense way. The requirement that "an EIA application" (as defined in the Regulations) must be accompanied by an environmental statement is not intended to obstruct such development. As Lord Hoffmann said in R v North Yorkshire County Council ex parte Brown [2000] 1 AC 397, at page 404, the purpose is "to ensure that planning decisions which may affect the environment are made on the basis of full information". In an imperfect world it is an unrealistic counsel of perfection to expect that an applicant's environmental statement will always contain the "full information" about the environmental impact of a project. The Regulations are not based upon such an unrealistic expectation. They recognise that an environmental statement may well be deficient, and make provision through the publicity and consultation processes for any deficiencies to be identified so that the resulting "environmental information" provides the local planning authority with as full a picture as possible. There will be cases where the document purporting to be an environmental statement is so deficient that it could not reasonably be described as an environmental statement as defined by the Regulations (Tew was an example of such a case), but they are likely to be few and far between.

It would be of no advantage to anyone concerned with the development process - applicants, objectors or local authorities - if environmental statements were drafted on a purely "defensive basis", mentioning every possible scrap of environmental information just in case someone might consider is significant at a later stage. Such documents would be a hindrance, not an aid to sound decision-making by the local planning authority, since they would obscure the principal issues with a welter of detail.

Against this background, I turn to the manner in which this environmental statement dealt with the impact of the proposed development on groundwater and human health. Chapter 13 referred to human health in two paragraphs as follows:

It is submitted on behalf of the claimant that the environmental statement did not provide any assessment of the potential health impacts arising out of the proposal. On the contrary, it is plain from paragraph 13.4.36 that the authors of the environmental statement considered that there were not likely to be any significant effects on human health. It was therefore unnecessary for them to describe mitigation measures in any detail. Those who disagreed with this assessment had an opportunity to put their views to the local planning authority in the consultation process. The Report summarised the responses of consultees. They included the North Derbyshire Health Authority, which raised no objection:

The Director dealt with "Health, Perception of Risk and the Living Environment Considerations" as follows:

This was an eminently reasonable response to fears expressed by objectors which, while they did not raise any likely significant effect, nevertheless raised a possibility of risk to human health which "cannot entirely be dismissed".

Turning to the effect of the proposed development upon groundwater, the assessment of operational impacts and mitigation in chapter 12 of the environmental statement has to be considered against the background of the description of the proposals given in chapter 4. Under "Engineering", paragraph 4.5 of the environmental statement said:

Figure 11 contained diagrams of a typical basal liner, typical capping liner, typical leachate collection point, and typical internal bund.

Chapter 12 dealt with the effects of the proposed development under the heading of "Geology, Hydrogeology and Hydrology ".

Under "Introduction" paragraphs 12.1 and 12.2 said:

The Environment Agency was one of the consultees. It raised a number of matters in a letter dated 24th April 2001. The interested party sought to address the Environment Agency's concerns in an addendum report dated July 2001. This gave further information in relation to the geological and hydrogeological setting of the proposal. The proposed development was described in paragraph 2.3:

Chapter 4 described the historical contamination of the site and paragraph 4.2 described the remediation options available:

The Addendum Report concluded in paragraph 5.0:

The Environment Agency responded to the Addendum Report in a letter dated 3rd July 2001. That said, in part:

The Addendum Report and the Environment Agency's response were part of the environmental information considered in the Report. The claimant's solicitors had argued that the environmental statement was deficient in its treatment of the impact of the proposal on human health and hydrology. The Director commented in his report:

The claimant's concerns in relation to groundwater and human health were also addressed in the Joint Report. Under the heading "Groundwaters" the Joint Report said this:

So far as conditions are concerned, the defendant accepted the Environment Agency's suggestions. Under "Water Resources and Pollution Prevention" condition 29 provided:

It is against this background that the claimant submits that the assessment of the impact of the proposed development on groundwater was impermissibly left over to another decision maker (the Environment Agency) after the grant of planning permission, and that the environmental statement did not adequately describe the mitigation measures, because it left significant matters over for subsequent determination and proceeded on an assumption that remedial measures, whatever they might be, would work.

In advancing these submissions Dr Wolfe relied on two decisions of the Court of Appeal: Smith v Secretary of State for the Environment [2003] EWCA Civ 262 and Gillespie v Secretary of State for the Environment [2003] EWCA Civ 400. In Smith, Waller LJ distilled a number of principles from the authorities which he set out in paragraph 24 of his judgment. The first and second principles in paragraph 24 relate to the grant of outline planning permission. The planning permission in the present case, for engineering operations, is a detailed permission. The third and fourth principles are as follows:

In Gillespie there was no environmental statement and Richards J quashed a planning permission granted by the Secretary of State on the basis that he had erred in concluding that no environmental statement was required. Part of the site was a former gas works, which was extensively contaminated. The Secretary of State had relied upon the imposition of a condition (condition (VI)) which required a detailed site investigation to be carried out. That investigation would have proposed a remediation scheme. Pill LJ rejected a submission that the Secretary of State, in deciding whether an environmental statement was required, was obliged to shut his eyes to the remediation scheme. In paragraph 37 he said this:

The facts of the present case are very different. Here there was an environmental statement which did contain a description of the effect of the operation of the landfill upon groundwater: the potential impacts of uncontrolled discharge of landfill leachate were described as "low to medium". With the implementation of the mitigation measures described in the environmental statement the residual impact was described as "low".

The description was relatively brief, but it was open to the claimant and others to challenge it as inaccurate and/or inadequate in the consultation process. It is significant that having received the Addendum Report, the Environment Agency raised no objection. The environmental statement did describe the proposed mitigation measures. The claimant complains that the description was brief, and that the proposals are in effect purely standard, providing for no more in terms, for example of the permeability of the proposed lining system in the cell, than would be required by the Landfill (England and Wales) Regulations 2002 in any event.

That may well be so, but it was open to the claimant to argue that more stringent mitigation measures should be adopted. Although criticisms have been made in general terms of the adequacy of the mitigation measures proposed in the environmental statement, no alternative mitigation measure, let alone a more effective mitigation measure, was advanced on behalf of the claimant during the consultation process.

The measures were described in sufficient detail to enable informed criticism of them to be made. Dr Wolfe placed reliance on the words "The appropriateness of the lining system and the site design will be assessed ... as part of the PPC permit application" in support of his submission that the defendant had left over questions relating to the effectiveness of mitigation. That submission takes the words out of context. Reading the environmental statement and the Addendum Report as a whole, it is plain that a particular cell design, which is not in the least unusual, and a lining system were being proposed. The details of that system could be adjusted as part of the IPPC authorisation process. This case falls squarely within Waller LJ's fourth principle (above). The defendant had placed constraints upon the planning permission within which future details had to be worked out. Condition 6 provided:

The claim form did not criticise condition 29 (above). In his skeleton argument and submissions Dr Wolfe contended that the condition (which is concerned with the existing contamination on this former site) left over a significant environmental impact for future assessment and was, in this respect, similar to condition (VI) relied upon by the Secretary of State in the Gillespie case. It is clear from the letter dated 3rd July 2001 that the Environment Agency was initially concerned that existing contamination had not been adequately addressed in the environmental statement. The Addendum Report was the response to this concern. Having considered the Addendum Report the Environment Agency acknowledged that the issue had been discussed but said that "no final remediation strategy had been proposed" (my emphasis).

If the Environment Agency had had any concern in the light of the geological and hydrogeological information provided in the Addendum Report as to the remediation proposals contained therein, then it would have said so. Against this background the defendant was fully entitled to leave the detail of the remediation strategy to be dealt with under condition 29.

I therefore reject ground 1 of the challenge.

I have dealt with it in some detail because it does illustrate a tendency on the part of claimants opposed to the grant of planning permission to focus upon deficiencies in environmental statements, as revealed by the consultation process prescribed by the Regulations, and to contend that because the document did not contain all the information required by Schedule 4 it was therefore not an environmental statement and the local planning authority had no power to grant planning permission. Unless it can be said that the deficiencies are so serious that the document cannot be described as, in substance, an environmental statement for the purposes of the Regulations, such an approach is in my judgment misconceived. It is important that decisions on EIA applications are made on the basis of "full information", but the Regulations are not based on the premise that the environmental statement will necessarily contain the full information. The process is designed to identify any deficiencies in the environmental statement so that the local planning authority has the full picture, so far as it can be ascertained, when it comes to consider the "environmental information" of which the environmental statement will be but a part.

Under the heading "Planning Considerations" the Report explained that planning policies were developed at national, regional and local levels. Having reminded members of the obligations imposed by sections 70(2) and 54A of the Town and Country Planning Act 1990 identifying the plans comprising the Statutory Development Plan, the report stated that "It is also necessary to have regard to Government Policy on waste issues, planning guidance at national and regional level and objectives and requirements obtained in relevant EC Directives. The Report mentions Council Directive 1999/31/EC on the landfill of waste (The Landfill Directive) and refers to Waste Strategy 2000:

Under "National Planning Policy Guidance" reference is made to PPG10:

Under the heading "Regional Policy" reference is made to RPG8, which advises that waste planning authorities should adopt the targets for waste recycling and reduction set out in Waste Strategy 2000. Under "Local Policy" the report states that the Derby and Derbyshire Joint Structure Plan:

The Report also refers to a non-statutory policy document, Derbyshire Waste Management Strategy (DWMS). That in turn refers to BPEO and the Report states that:

Having identified the relevant policies, the Director then set out his own Policy Assessment. He considered that the issues to be addressed included the relationship of the application to the policies in the Structure Plan, in PPG10 and in Waste Strategy 2000 for England and Wales.

The applicant for planning permission had claimed that there was a shortfall in final disposal capacity in Derbyshire for non-inert wastes of approximately 4.1 million cubic metres for the remainder of the plan period in the DWMS to 2011. Perhaps as a consequence, the environmental statement did not address BPEO in terms. Under the heading "Need for the Development", it was said in paragraph 3.2.1 that:

The Director's planning conclusions were:

The minutes of the meeting of the Planning and Control Committee on 11th March 2002 state that:

In the original claim form in the judicial review proceedings one of the grounds of challenge was that there was no proper BPEO assessment. The Joint Report responded as follows:

It would appear from the defendant's summary grounds of opposition to the claim and from Mr Evans' skeleton argument on its behalf that the words "the Courts have held" were a reference to the dicta of Carnwath J (as he then was) in R v Bolton Metropolitan Borough Council ex parte Kirkman [1998] JPL 787 at page 799, which were followed by Richards J in R v Leicestershire County Council ex parte Blackfordby & Boothorpe Action Group [2001] Env LR 2, see paragraphs 46 to 49, whose dicta were in turn followed by Maurice Kay J in R v Derbyshire County Council ex parte Murray [2001] Env LR 26, see paragraphs 13 to 15.

Since Murray went to appeal, it is curious that reference was not made in this context to the conclusions of Pill LJ in paragraph 53 of his judgment given on 22nd January 2002 (see above).

It is submitted on behalf of the claimant that the approach to be BPEO in the Report and the Joint Report - "BPEO is an objective to which local planning authorities should have regard as a material consideration. It is for local planning authorities to decide how much weight to attach to it" - does not accord with Pill LJ's conclusion that an objective is more than a factor to be taken into account, since it is an objective which is obligatory it must always be kept in mind when making a decision.

It is further submitted that the weight to be given to BPEO has increased since the government implemented the 1999 Landfill Directive by making the Landfill (England and Wales) Regulations 2002, which came into force on 15th June 2002. It should be noted that Thornby Farms was an incinerator, not a landfill, case and that the decision in Murray predated the implementation of the Directive, and did not consider Waste Strategy 2000 which had been published in May 2000. The pre-Landfill Directive position, which was that considered by the Court of Appeal in Murray, was as follows. The relevant objectives in paragraph 4 of Schedule 4 to the 1994 Regulations included: "(b) implementing so far as material any plan made under the plan making provisions." Paragraph 1, as amended, defines the plan making provisions as follows:

Waste Strategy 2000 for England and Wales is the national waste strategy prepared for the purposes of section 44A (see paragraph 5.1 of the document). Thus, the defendant in the present case was obliged to keep in mind the objective of implementing, so far as material, the provisions of the strategy. BPEO is dealt with in the strategy as follows. Under the heading "Delivering Change" the second bullet point in the introduction to Chapter 4 states:

The three "key considerations", namely the waste hierarchy, the proximity principle, and self-sufficiency are set out in paragraph 4.5. Paragraph 4.13 is concerned with the obligations of waste planning authorities. It says:

Having referred to the fact that the strategy is a waste management plan for the purposes of the Framework Directive and section 44A of the 1990 Act, paragraph 1.8 says:

Chapter 3 describes the decision-making framework in considerable detail. I do not propose to extend this already lengthy judgment by extensive citations from the chapter. Suffice it to say that paragraph 3.2 states in part:

The proximity principle - which suggests that waste should generally be disposed of as near to its place of origin as possible - is then amplified. A step by step approach is suggested:

Annex A deals with "Major Waste Facilities in England and Wales" and includes the following advice in paragraph A3:

It is submitted on behalf of the claimant that while the Report mentions BPEO on a number of occasions, and indeed sets out the Royal Commission on Environmental Pollutions definition, it does no more, in effect, than pay lip service to the principle when it comes to applying it to the particular circumstances of this application for planning permission. BPEO could not have been kept in mind by the Committee because there was nothing recommending a step-by-step analysis of the kind recommended in Waste Strategy 2000.

Having concluded that there was sufficient landfill space in the North-East Derbyshire Sub-Area and the plan area as a whole up to the end of the Structure Plan period in 2011, the Committee should have been invited to consider whether landfill at the application site was the best option to meet the objectives which this particular application was intending to meet.

The objectives were not identified in any systematic way, but once it was acknowledged that there was sufficient capacity in the county as a whole and in the north-east of the county, they clearly included the objective of meeting an imminent shortage of landfill space in the south-east of the county. Whether landfill was the best option for such a waste stream, having regard to the waste hierarchy, and if it was whether landfill in the north-east of the county would be in accordance with the proximity principle, were not examined. The defendant was obliged to adopt the, not a, BPEO. There is considerable force in these criticisms of the way in which the Report and the Joint Report dealt with BPEO.

I turn to consider the status of Waste Strategy 2000 post the Government's implementation of the Landfill Directive.

The background to the making of the Directive is set out in the recitals. Recital (18) explains:

DEFRA has published a note explaining how the main requirements of the Landfill Directive have been transposed in the 2002 Regulations. Under the heading "Conditions of the permit" the note explains that the requirement in Article 8B of the Landfill Directive "has already been transposed in the PPC Regulations 2000 through the duty placed on the Environment Agency not to issue a permit to any waste management activity unless it has already obtained planning permission". Thus, it is clearly intended, at least by DEFRA, that local planning authorities will not grant planning permission for a landfill project unless they are satisfied that it is "in line" with Waste Strategy 2000.

On behalf of the defendant, Mr Evans, whose submissions were adopted by Mr Barrett on behalf of the interested party, submitted that the combined effect of the Landfill Directive and Waste Strategy 2000 did not alter the approach to BPEO that was required to be taken by the local planning authority. It had to keep BPEO in mind as an objective. Both Mr Evans and Mr Barrett submitted that the strategy was merely advisory, no more than a material consideration to which the defendant was required to have regard as members were advised in the Joint Report. It was for the local planning authority to decide what weight to give to the Strategy, both in general and insofar as it gave advice in relation to BPEO in particular.

So far as Article 8 of the Landfill Directive is concerned, Mr Evans submitted that the duties relating to issuing landfill permits were imposed by the 2002 Regulations upon the Environment Agency, not the local planning authority. Thus, the local planning authority was not under any duty to ensure that a planning permission was "in line" with the Strategy.

He fairly accepted that this approach had two consequences. Firstly, if the local planning authority was not under any obligation to ensure that a grant of planning permission was in line with the Strategy, it might well be too late to recover the position when the Environment Agency came to consider the issue of a permit under the 2002 Regulations. That might cause the United Kingdom to be in breach of the Landfill Directive. Secondly, whatever may be the respective roles of the local planning authority and the Environment Agency, the practical effect of the submissions of the defendant and the interested party is that no greater weight need be placed by the decision taker upon the relevant waste management plan that has been drawn up pursuant to Article 7 of the Waste Framework Directive as implemented by section 44A.

I am unable to accept Mr Evans' and Mr Barrett's submissions in this respect. In 1975 the Waste Framework Directive addressed all forms of waste management, including reduction, re-use, recycling, energy recovery and disposal (see Articles 3 and 4). Since it required member states to prepare waste management plans it could reasonably be expected that, once those plans had been prepared, arrangements would be made for them to be given additional weight in the decision-making processes of member states.

The 1999 Landfill Directive is concerned with a particular method of waste disposal, landfill, which is at the bottom of the waste hierarchy (that is to say, all other things being equal, it is the least preferred option). The purposes of the Landfill Directive included encouraging the prevention, recycling and recovery of waste and obviating the wasteful use of land (Recital (3)), and ensuring that, in future, only safe and controlled landfill operations should be carried out (Recital (2)). In short, it sought to discourage the unnecessary use of landfill as a method of waste disposal.

To this end, Article 8 of the Landfill Directive is more prescriptive than the Framework Directive as implemented by paragraphs 2 and 4(1)(b) of the 1994 Regulations. In ordinary language an obligation to be satisfied that a proposed development is "in line with" a waste management plan, is more stringent than an obligation to keep the objective of implementing the plan, so far as material, in mind. The difference in wording between the two directives, requiring greater weight to be placed upon the waste management plan, is deliberate, having regard to the purposes of the later directive. The words "in line with" admit of some flexibility. They are perhaps less prescriptive than "in accordance with". Moreover, given the complexity of the subject matter and the many factors that may have to be taken into account when taking individual waste disposal decisions, the waste management plan itself may well allow for a further degree of flexibility. Mr Evans submitted that, in this respect, the Strategy was no different from earlier policy guidance, which also referred to BPEO such as that contained in PPG10. He referred to paragraph 1.8 in Part 2 (above) and to the advice in paragraph A3 in Annex A to the Strategy.

This is to take these paragraphs out of context. Both parts 1 and 2 of the Strategy must be read as a whole. It is true that it is an important source of guidance which must be taken into account by local planning authorities. But on its face it professes to be more than that: it "implements ... the requirement within the Waste Framework Directive ... as incorporated into law by section 44A of the Environmental Protection Act 1990" (see paragraphs 1.4 and 1.5).

Fairly read, as a whole, the policies relating to BPEO in Waste 2000 are, and are intended to be, more prescriptive than earlier policy guidance. To give but a few examples from the extracts cited above: "Decisions on waste management, including decisions on suitable sites ... for disposal should be based on a local assessment of the BPEO"; "The right way to treat particular waste streams cannot be determined simply. The objective is to choose the BPEO in each case"; "The Government ... look(s) to Waste Planning Authorities to take full account of the policies described in this Strategy, in particular ... the importance of establishing the BPEO"; "When taking waste management decisions on suitable ... sites ... local authorities must follow the framework set out below". As mentioned above, the framework describes how to determine the BPEO: "The process that should be used for considering the relative merits of the various waste management options in a particular situation is the BPEO".

On a fair reading, the Strategy does not simply maintain the status quo in policy terms, leaving local planning authorities free to give such weight as they choose to BPEO. One of the main objectives of the Strategy is to "deliver change" by placing greater emphasis on the need to choose the BPEO when making waste management decisions.

It is true that Chapter 3 in Part 2 of the Strategy applies to waste management decisions by local authorities generally, but contrary to the advice given to members in the Joint Report (above) it applies with no less force to waste planning authorities when they are taking decisions on planning applications for waste disposal. Under the 2002 Regulations the Environment Agency is concerned at the landfill permit stage with the detailed regulation of landfilling operations that will already have been granted planning permission. It is for waste planning authorities when deciding whether or not to grant planning permission for landfill proposals to ensure that they are "in line" with Parts 1 and 2 of the Strategy.

Mr Evans submitted that such an obligation might conflict with the waste planning authority's duty under section 54A: to determine an application for planning permission in accordance with the development plan unless material considerations indicate otherwise. Policies in the development plan might conflict with those in the Strategy. Since the Strategy will be a material consideration for local planning authorities when reviewing their development plans, the scope for conflict should reduce as policies in development plans "catch up" with those in the Strategy. Any conflicts in the short term should not present a practical difficulty because the policies in the Strategy will, at the very least, be material considerations for the purposes of section 54A which may indicate that an application for planning permission should be determined otherwise than in accordance with the (conflicting) policies in the development plan.

Mr Barrett conceded that the Government might well have wished local planning authorities to give greater weight to the policies in the Strategy including BPEO, but he submitted that its intention was that this should be achieved through the incorporation of those policies into statutory development plans, thus giving them the added force of section 54A. He relied upon paragraph A3 of Annex A to the Strategy, but his submission ignores the concluding words of the paragraph A3 which make it clear that the Strategy is to be taken into account in both plan making and development control.

For these reasons, I conclude that the defendant's approach to the status of the policies relating to BPEO in Waste Strategy 2000 was erroneous in principle because the Joint Report effectively relegated BPEO to a material consideration to be taken into account but to be given such weight as the defendant thought fit. Such an approach did not accord with Pill LJ's pre-Landfill Directive and Waste Strategy 2000 dicta in Murray. There was no recognition of the defendant's duty, post the publication of the Strategy and the implementation of the Landfill Directive, not to grant planning permission unless the proposed development was "in line with" the policies relating to BPEO in Waste Management 2000.

But the defendant's consideration of BPEO was seriously flawed, regardless of the weight that should have been attributed to the policies in the Strategy. Mr Evans and Mr Barrett pointed to the number of places in the Report where BPEO was mentioned. I accept that there are frequent references to BPEO in the Report, but merely repeating the acronym, however frequently, and whether or not accompanied by the Royal Commission's definition, is not an adequate consideration of the issues raised by BPEO. If a material consideration is to be taken into account it must first be properly understood. What matters is not the letters BPEO, but the analysis of the issues raised by the concept: the application of the three key elements - the waste hierarchy, the proximity principle and self-sufficiency to the particular waste stream(s) which the development is intended to serve. So long as there was both a local (in the North-East Derbyshire Sub-Area) and county-wide shortage of capacity, it was relatively easy to see how the proximity principle might be met. It would appear that this must have been the assumption underlying the environmental statement, since it contained no discussion of BPEO whatsoever. However, once it had been concluded that there was capacity both locally and county-wide up to 2011, the question whether this particular application site would be the BPEO for meeting a shortage of landfill space in the south-east of the county had to be addressed in terms of the three key considerations, including the proximity principle. Beyond referring to the application site's good road connections, and stating that the Director was "mindful of the imminent shortage of landfill space" in the south-east of the county, the report did not address this issue at all. It may well be that this is why the Director did not feel able to conclude that the site was the BPEO in accordance with criterion 1 in Waste Management Policy 1 in the Structure Plan, merely that it was "a BPEO for the disposal of waste".

I accept that officers' reports should not be read in a legalistic or pedantic manner. If there had been a reasonable attempt to grapple with the issues raised by BPEO in the light of local spare landfill capacity and capacity county-wide for the structure plan period, the use of the indefinite rather than the definite article might well have been of little consequence, and reference to it dismissed as mere pedantry. Its use in this Report is, in my judgment, a reflection of the defendant's muddled approach to the BPEO issue. Unfortunately, the muddle was compounded, rather than clarified, by the advice given to members in the Joint Report as to the weight that they ought to give to BPEO. Given the importance attached to choosing the BPEO for a particular waste stream in Waste Strategy 2000, this was a significant flaw in the decision-making process.

The defendant's failure to deal adequately with BPEO, whether it is regarded as a breach of its obligation to ensure that the grant of planning permission was in line with Waste Strategy 2000, or whether it is viewed more simply as a failure to have regard to a material consideration, does not mean that the planning permission must be quashed. The court has a discretion and I have anxiously considered whether it would be right in all the circumstances to exercise that discretion, given the two-fold justification for the development in the environmental statement: to reclaim a despoiled site and to facilitate the disposal of wastes arising in the area. It is clear from the Report and from the Minutes of Meeting on 11th March 2002 that the Director placed considerable weight upon the first justification: "there was no realistic likelihood of an appropriate restoration being achieved without the importation of waste in the manner proposed". However, it was for members to determine the application. The minutes record that they "generally considered that there were not any substantial planning grounds for refusal of the application. It was felt that the site was in need of improvement but that it would be unlikely to regenerate in a satisfactory manner on its own."

Given the manner in which BPEO was addressed in the Report and Joint Report it is not surprising that members concluded that there were no substantial planning grounds for refusing planning permission. Since there had been no proper BPEO analysis it is not possible to say whether there would or would not have been a substantial planning objection on this ground, for example because of failure to comply with the proximity principle. Thus it is simply not possible to tell what members' attitudes might have been if there had been a proper analysis of the BPEO issue, including both the weight to be given to, and the content of, the policies relating to BPEO in Waste Strategy 2000. In particular, Waste Management Policy 2 in the Structure Plan gives preference to waste disposal proposals that assist in the reclamation of derelict or despoiled land, "where waste disposal activities are justified" (see above). In deciding whether waste disposal activities are justified a BPEO assessment is, for the reasons set out above, a most material consideration.

For these reasons, the application succeeds on ground (3) and the planning permission dated 23rd December 2002 must be quashed.

MR PURCHASE: My Lord, I would ask for our costs from the defendant in this matter. The claimant has been funded by the Legal Services Commission so I would ask for the order to be the usual order in that regard and for an assessment of our publicly funded costs as well.

MR JUSTICE SULLIVAN: Do you resist that, Mr Evans?

MR EVANS: I cannot resist the principle of it. I think the most I can say, and I do say, is that perhaps 50 per cent of the time of the court was taken up on the BPEO point. It was one ground of three but I fairly recognise that it took up at least half the time of the court. So I would invite the court to make an order for costs against us but limited to 50 per cent of the costs incurred by the claimant.

MR JUSTICE SULLIVAN: In effect, you say you should not have to pay for the time spent on considering the objectives and the IEI point?

MR EVANS: That is effectively it, my Lord.

MR JUSTICE SULLIVAN: The position is as I described in the judgment. There is no doubt that whilst BPEO was ground 3 in Dr Wolfe's skeleton, in his oral submissions before me he placed it in the forefront of those submissions, and certainly it probably took about half the time rather than just a third of the time, if that is a reasonable estimate. On that basis what do you want to say, Mr Purchase?

MR PURCHASE: My Lord, on that basis I would say that we would ask for our full costs, that being the principal issue before the court.

MR JUSTICE SULLIVAN: Yes. Thank you very much.

I am satisfied that the defendant ought to pay part of the claimant's costs. I say "part of the claimant's costs" because a significant part of the court's time was occupied with the two quite discrete issues on which the claim has failed. Although the BPEO issue was third in order in the skeleton argument, it is true, as I indicated in the judgment, that Dr Wolfe placed it at the forefront of his oral submissions. Thus it would not be fair simply to apportion one third of the costs to each of the three grounds. I accept Mr Evans' submission that the proper apportionment, doing the best I can, would be to apportion 50 per cent of the costs to the BPEO point and I therefore order that the defendant pays the claimant 50 per cent of its costs, those costs to go for detailed assessment.

You have asked for the usual order. You can have it.

MR EVANS: My Lord, I would like to ask for permission to appeal on the BPEO ground, my Lord, simply on the basis that there would be a real prospect of success in relation to the issue of principle, although I have heard what your Lordship has said in relation to the factual position in any event, but, my Lord, I do ask for permission on that ground.

MR JUSTICE SULLIVAN: You say that it can fairly be said that it is an important issue for waste planning authorities generally?

MR EVANS: My Lord, yes.

MR JUSTICE SULLIVAN: Yes. Do you want to say anything about that, Mr Purchase? I very much suspect that if it had gone the other way there might have been a similar application from you pointing out how important this issue was, I do not know.

MR PURCHASE: Indeed.

MR JUSTICE SULLIVAN: I will not pry.

MR PURCHASE: All I will say is that I am not really in a position to resist that now. My clerk did speak to your Lordship's clerk yesterday about this point and your Lordship did seem minded to accept that perhaps written submissions on appeal would be appropriate given that Mr Wolfe has dealt with the case up until this time and I have had little time to be familiar with the issue.

MR JUSTICE SULLIVAN: Yes. I did give that indication but I was cautious to do so in such a way as to not give any indication as to who might succeed and who might fail.

MR PURCHASE: My Lord, yes.

MR JUSTICE SULLIVAN: Certainly had you been in the position of having to apply for permission to appeal then I would have adjourned the matter for further submissions for you to have the opportunity to consider the matter further. Since the boot is, as it were, on the other foot, I think it is right to deal with that matter today. I appreciate that you may feel that it is difficult to assist a great deal further, but do you have anything more you wish to say?

MR PURCHASE: My Lord, all I would say is that while we cannot deny that this is an important point of principle, we would say there is no reasonable prospect of success against your Lordship's reasoning on the facts.

MR JUSTICE SULLIVAN: Yes. Do you want to say anything, Mr Barrett, or are you just keeping your head down?

MR BARRETT: I would support the application made by Mr Evans for the very simple reason that it is a very important point of law that your Lordship has addressed in the course of the judgment in respect of whether BPEO, as a concept, is an elevated concept in the context of a planning application.

MR JUSTICE SULLIVAN: I am satisfied that it is appropriate to grant permission to appeal not necessarily upon the first ground of real prospect of success, because it does seem to me that the facts are problematical, to say the least, from the defendant's point of view, but on the second limb there are other exceptional reasons, that is to say the relevance of the BPEO principle for waste planning authorities, and indeed for those involved in the process of waste disposal both as objectors and as applicants for permission. So I do give permission on the second limb. It is obviously for counsel to consider, in the light of my judgment on the facts, the realistic prospects of success.