Treagus, R (on the application of) v Suffolk County Council & Anor

The Claimant applies for judicial review of the decision of the Defendant, Suffolk County Council, dated the 2 June 2011. In that decision the Defendant granted planning permission to the Interested Party, The Denham Estate, for the construction and operation of an anaerobic digestion plant on the Estate, at Barrow Road, Denham.

The application was made with the permission of the Court given previously, on 3 grounds, as follows (using the numbering taken from a longer list of potential grounds):

Following consideration on the papers by Robin Purchas QC (sitting as a Deputy High Court Judge) and a renewed permission hearing before Coulson J, and following an unsuccessful appeal by the Claimant to the Court of Appeal. I neither need nor propose to refer further to those earlier proceedings.

It is necessary to give a short description of the development. An anaerobic digestion plant is designed to produce energy in the form of heat and electricity through the breaking down of organic material by bacteria, in the absence of air. The process produces methane, which is then burnt in a heat and power plant. In this case some of the electricity is intended to be used on the Estate, and the surplus exported to the National Grid. The process also produces a solid and liquid residue, called substrate, which can be spread as fertiliser, and in this case would be spread on the Estate as part of agricultural activity.

An essential part of the development is a sealed, underground slurry tank. This is required to store pig slurry, which is used to trigger the anaerobic digestion process. The pig slurry would be delivered in sealed tankers and discharged directly into the slurry tank.

The original screening decision treated the development as Schedule 2 development under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (the EIA regulations). Consequently the Defendant Council had to decide whether the development was likely to have significant effects on the environment. If so, an EIA would have to be carried out. The opinion adopted by the Council concluded that an EIA was not required. In August 2010 the Claimant’s solicitors wrote to the Council asserting that as a consequence of failing to give reasons, there had been non-compliance with EU Directive 85/337/EC and the implementing EIA regulations. They also told the Council that its handling of the EIA screening had failed to follow Council policy, because the Council failed to consult with relevant statutory bodies (such as the Environment Agency (EA) and the District Council) as required by the Suffolk Waste Local Plan [WLP].

An EIA is required of those projects which fall within Schedule 2 of the EIA Regulations and are likely to have significant effects on the environment: Regulation 2. Where EIA is carried out, an Environmental Statement has to be submitted by the developer. That Statement will, amongst other matters, provide a description of the development, explain the likely significant effects of the development on the environment and ‘a description of the measures envisaged to prevent, reduce and where possible offset any significant adverse effects on the environment’: Schedule 4, Part I, paras 1, 4 and 5.

The Claimant submitted that the question of whether mitigation measures can be used as a reason to not require EIA is contentious. The Claimant’s approach was that, as mitigation is part of the matters to be set out in the Environmental Statement with the hope of preventing significant effects from arising, the determination whether significant effects are likely has to be made without regard to the mitigation. It was submitted on her behalf that the Council’s approach to mitigation was contradicted by the decided cases.

The Claimant’s counsel Mr Harwood QC reminded the Court that in R (Lebus) v South Cambridgeshire District Council [2003] JPL 466, Sullivan J held:

“[49] [Council officers] concluded that the potential impact of the development would be insignificant given proper planning conditions and management enforceable under s 106.

[50] It must have been obvious that with a proposal of this kind there would need to be a number of non-standard planning conditions and enforceable obligations under s 106. It is precisely those sort of controls which should have been identified in a publicly-accessible way in an environmental statement prepared under the Regulations.

[51] Thus the underlying approach adopted by Mr Hussell was in error. In so far as one can discern the Council's reasoning, it was erroneous on the two grounds set out above: it was no answer to the need for an EIA to say the information would be supplied in some form in any event, and it was not right to approach the matter on the basis that the significant adverse effects could be rendered insignificant if suitable conditions were imposed. The proper approach was to say that potentially this is a development which has significant adverse environmental implications: what are the measures which should be included in order to reduce or offset those adverse effects?”

Correctly, counsel also drew my attention to the decision of the Court of Appeal in Gillespie v First Secretary of State and Bellway Urban Renewal Southern Limited [2003] 2 P & CR 236. There, Pill LJ stated:

“[36] When making his screening decision, the Secretary of State was not, in my judgment, obliged to shut his eyes to the remedial measures submitted as a part of the planning proposal. That would apply whatever the scale of the development, and whether (as in British Telecommunications) some harm to the relevant environmental interest is inevitable, or whether (as is claimed in the present case) the development will actually produce an improvement in the environment. As stated in Bozen, it is the elements of the specific project that must be considered, and all the elements of the project relevant to the EIA. In making his decision, the Secretary of State is not required to put into separate compartments the development proposal and the proposed remedial measures and consider only the first when making his screening decision. If the judges in the cases cited took a contrary view, I respectfully disagree, although it appears to me that both Sullivan J in Lebus, and Richards J in the present case, did not require all remedial or mitigating measures to be ignored.

[37] The Secretary of State has to make a practical judgment as to whether the project would be likely to have significant effects upon the environment by virtue of factors such as its nature, size or location. The extent to which remedial measures are required to avoid significant effects on the environment, and the nature and complexity of such measures, will vary enormously, but the Secretary of State is not, as a matter of law, required to ignore proposals for remedial measures included in the proposals before him when making his screening decision. In some cases, the remedial measures will be modest in scope, or so plainly and easily achievable, that the Secretary of State can properly hold that the development project would not be likely to have significant effects upon the environment, even though, in the absence of the proposed remedial measures, it would be likely to have such effects. His decision is not, in my judgment, predetermined either by the complexity of the project or by whether remedial measures are controversial, although, in making the decision, the complexity of the project and of the proposed remedial measures may be important factors for consideration.”

Laws LJ expressed his reasoning succinctly at paragraph 46:

“Where the Secretary of State is contemplating an application for planning permission for development that, but for remedial measures, may or will have significant environmental effects, I do not say that he must inevitably cause an EIA to be conducted. Prospective remedial measures may have been put before him whose nature, availability and effectiveness are already plainly established and plainly uncontroversial, although I should have thought that there is little likelihood of such a state of affairs in relation to a development of any complexity. But if prospective remedial measures are not plainly established, and are not plainly uncontroversial, then, as it seems to me, the case calls for an EIA. If the Secretary of State were then to decline to conduct an EIA, it seems to me that he would pre-empt the very form of enquiry contemplated by the directive and regulations, and, to that extent, he would frustrate the purpose of the legislation.”

Arden LJ agreed with both judgments, saying at paragraph 49:

“However, I would make it clear that, in my view, the question of whether, in a case such as this, the Secretary of State can, in making his screening decision, take into account proposed conditions to be attached to the grant of permission turns not on the complexity or controversiality of the development as such but on the nature of the remedial measures contemplated by such conditions. Such measures can be taken into account if, fairly considered, they are, of themselves, unlikely to have significant effects upon the environment because, for example, they are of limited impact or well established to be easily achievable within the process of the development.”

In R(Catt) v Brighton and Hove City Council [2007] LGR 331, Pill LJ followed his reasoning in Gillespie:

“[33] Developments come in all forms and the approach to the screening opinion must have regard to the development proposed. There will be cases, such as Gillespie's case, where the uncertainties present, whether inherent or sought to be resolved by conditions, are such that their favourable implementation cannot be assumed when the screening opinion is formed.

[34] On the other hand, there will be cases where the likely effectiveness of conditions or proposed remedial or ameliorative measures can be predicted with confidence. There may also be cases where the nature, size and location of the development are such that the likely effectiveness of such measures is not crucial to forming the opinion. It is not sufficient for a party to point to an uncertainty arising from the implementation of the development, or the need for a planning condition, and conclude that an EIA is necessarily required. An assessment, which almost inevitably involves a degree of prediction, is required as to the effect of the particular proposal on the environment, and a planning judgment made. ...

[35] ... Laws LJ was considering the facts in Gillespie's case and I do not consider he was asserting a general principle that, only when remedial measures are 'uncontroversial', can they be taken into account when giving a screening opinion.

[37] When forming a screening opinion, the council were not required to ignore either the conditions proposed to limit the scope of the development or the conditions providing for ameliorative or remedial measures. The consequences of providing the additional seating, and other changes, could not be predicted with certainty but, as Collins J noted, the council had extensive knowledge and experience, supported by surveys, of the impact of existing football league and cup matches upon the environment. On the basis of that, and the studies into future impact, they were entitled to assess the likely impact of the additional capacity proposed in the context of the continuing ameliorative measures also proposed and to form the screening opinion they did.”

The EA was consulted by the Council, as is required. In their consultation response dated 15 December 2009 they objected to the application on the basis that the site is located within a drinking water source protection zone. The EA concluded at that stage:

“In this instance the proposed development includes an underground storage of slurry which would threaten potable water supplies drawn from the chalk aquifer. Any leakage of the slurry tank would cause pollution of groundwater.”

The EA responded further on 21 January 2010 saying, in particular:

“Groundwater and Contaminated Land

A scheme will need to be agreed incorporating some or all of the measures proposed in the Renewable Zunkunft correspondence, in order to ensure that the proposal does not cause pollution of groundwater.”

Consequently the EA recommended that conditions including that:

“The development hereby permitted shall not be commenced until such time as details of construction of the underground slurry tank have been submitted to and approved by the local planning authority.”

Ultimately no condition was imposed in those terms. Condition 3 required compliance with various drawings including ‘Denham Estate Slurry Tank,’ which showed the dimensions of the tank. Condition 7, under the heading ‘Working Scheme’, required ‘a revised scheme of working’ to be submitted and approved. That scheme would make provision for, amongst other matters, ‘construction of the underground slurry tank’.

The EA’s further response on EIA screening dated 27 April 2011 concluded that for the matters within its remit ‘the development does not require, albeit marginally, an EIA’. They said that the source protection zone was environmentally sensitive:

“This development has the potential to give rise to significant adverse environmental impacts to groundwater and surface water quality. The proposed development includes the underground storage of slurry which has the potential to threaten potable water supplies drawn from the underlying chalk aquifer.”

The EA advised:

“Because we consider this to be a marginal case, the Council should however be satisfied that prospective ameliorative measures are enforceable by standard planning conditions appended to any planning permission granted. On this point ... the Council may wish to exercise judgment on whether the applicant has provided sufficient information on the construction of the lagoon, notably material to be used for lining, and the design of the drainage system, as discussed in previous correspondence.”

The EA’s reasons for not seeking an EIA were that ‘significant adverse environmental impact on groundwater quality could be avoided by the careful design of the development and by the application of Best Available Techniques’. The EA proposed the inclusion of conditions. The EA said this was a marginal case, dependent upon whether the Council considered that prospective ameliorative measures were enforceable by standard planning conditions.

The Claimant complains that the planning application and the material submitted in support of it and made available for consultation does not explain what the ameliorative measures would be. The screening opinion relies on the EA’s reference to the use of Best Available Techniques without having any description as to what they are.

It was submitted on behalf of the Claimant that the general approach of the screening opinion is to rely on generalised measures it describes as “standard design, good management practices and handling techniques” to “address such issues”; and that this is not adequate as the proposed controls required testing through EIA .

It was submitted that the design details, mitigation measures and techniques relied upon to avoid potential significant environmental effects are therefore entirely unknown. The Council could not rely on their being successful or avoiding other environmental effects. Those are matters that should have been considered in an EIA. Therefore as with, for example, Gillespie, reliance on these measures in deciding not to have EIA was unlawful. It was argued that the case is quite different to Catt where mitigation had been carried out for years and the details of the scheme were clearly established.

It was also argued on behalf of the Claimant that the Council had insufficient information relating to the design of the requisite lagoon; and that the Council failed to have regard to issues raised concerning the lagoon, misconstrued or misunderstood the EA’s advice, and failed to take matters material to the lagoon into account in determining whether an EIA was required.

Mr Stinchcombe QC for the Council referred to their fresh screening opinion of the 26 May 2011. The Council concluded that an EIA was not required because the development would not give rise to significant environmental effects. In relation to the underground slurry tank, the Council stated as follows:

“Drainage and Ground Water Source Protection

The site overlies a major aquifer used for public drinking water supply abstractions and is within an Environment Agency Groundwater Source Protection Zone 2. Any pollutants entering the groundwater beneath the site could potentially contaminate the drinking water supply within 400 days. The Environment Agency has indicated that the development has the potential to give rise to significant adverse environmental impacts to groundwater and surface water quality. However, importantly, the Environment Agency went on to say that these impacts could be avoided by careful design and the application of Best Available Techniques (BAT)….

The design of the facility would, indeed, incorporate the necessary measures to address the management of both existing and surface water systems and would ensure that such impacts are not likely to arise. This will be secured by conditions which were requested by the Environment Agency to be attached to the grant of planning permission for the proposed development, pursuant to which the Agency raised no objection to the planning application for the proposal.”

After the final EIA screening opinion described above, the planning permission itself was granted, subject to extensive conditions, on 2 June 2011. Those conditions included:

“a condition preventing any soil stripping until a scheme making provision for, inter alia, construction of the underground slurry tank had been submitted to and approved by the Council (condition 7)”

Mr Stinchcombe submitted that the EIA process is intended to be an aid to decision-making in certain cases; it is not intended to be an obstacle course: reference was made to R (Jones) v Mansfield District Council [2004] 2 P&CR 233, paragraph 58 per Carnwath LJ.

In the present case, the Council formed the view that the development was development of a kind falling within the material regulations (i.e. it was an installation for the disposal of waste) and that potentially the relevant threshold was exceeded (i.e. the area of the development exceeded 0.5 hectare).

Accordingly, the question arising for the Council was whether the development was likely to have significant effects on the environment. In particular, the issue for the Council was whether it was likely that the underground slurry tank would leak. If it was likely that the underground slurry tank would leak, then the development was likely to have significant effects on the environment. If it was not likely that the underground slurry tank would leak, then the development was not likely to have significant effects on the environment.

It was submitted that the Council’s decision on this issue can only be challenged on traditional Wednesbury grounds: (R (Jones) v Mansfield District Council [2004] 2 P&CR 233, paragraphs 14-18 per Dyson LJ).

In essence, the Council had to decide whether the underground slurry tank would be designed and constructed in such a way that meant that it was not likely to leak. This was a matter for the Council’s judgment, a judgment that was to be formed in the light of all the information available to it, including the expert advice received from the EA (see R (Jones) v Mansfield District Council [2004] 2 P&CR 233, paragraph 17 per Dyson LJ). In this respect, the Council did not have to have before it every detail (see Jones, paragraph 39 per Dyson LJ).

The expert advice from the EA was that, if the underground slurry tank was designed and constructed in accordance with “Best Available Techniques”, then it was not likely that it would leak. This advice was based on “confidence, knowledge and experience”. In particular, the EA was clear that it had been appraised of all the information necessary to give such advice, which was expressly guided by the decision of the Court of Appeal in the Catt case.

This was a matter before a rural county council with experience of large numbers of agricultural and related applications, including a substantial number of slurry tanks and the like. The Council was entitled to rely upon the expert advice provided by the EA. In particular, the weight to be attached to the EA’s expert advice was a matter for the Council, as is clear from Jones, paragraph 54 per Dyson LJ; R (Hart District Council) v Secretary of State for Communities and Local Government [2008] 2 P&CR 302, paragraph 49 per Sullivan J; R (Akester) v Department for the Environment, Food and Rural Affairs [2010] Env LR 33, para 112 per Owen J).

The Claimant had suggested that this was a case where there were too many contingencies and uncertainties surrounding the question of whether the underground slurry tank was likely to leak. However, this was not so. As noted above, the EA’s expert advice was:

“…the potential significant adverse environmental impacts discussed in this letter and in previous correspondence, can be addressed by ameliorative measures that, based on confidence, knowledge and experience of the use of Best Available Techniques which incorporate systems designed to prevent damaging emissions, would reduce the impacts to a level that would not give rise to harm.”

Accordingly, there was nothing uncertain or contingent about the expert advice provided by the EA, despite its earlier use of the term ‘marginal’. On the contrary, that advice was expressed with confidence. Further, there was no material before the Council which would have required it to doubt the expert advice provided by the EA.

Therefore it was submitted that this is not a case where “the uncertainties [were] such that, on the material available, a decision that a project is unlikely to have significant effects on the environment could not properly be reached” (see Gillespie, paragraph 41 per Pill LJ; see also paragraph 46 per Laws LJ). On the contrary, this is a case where the likely effectiveness of the design and construction of the underground slurry tank could “be predicted with confidence” (see Catt, paragraph 34 per Pill LJ).

On the lagoon issue, the Defendant argued that the main arguments raised in this action by the Claimant focused on the slurry tank and that they should not be permitted to raise the lagoon point as an afterthought; and that in any event the Claimant had misconstrued and misunderstood what the EA had said about the lagoon in a letter dated the 27 April 2010.

Although the Claimant sought to rely upon Gillespie, in my judgement the facts of that case were very different from this one. In particular, in Gillespie it had not even been possible to conduct a proper investigation of the relevant site, never mind ascertain what measures might be required in order to remediate any contamination discovered as a result of such an investigation, and the need for a substantial future site investigation was crucial to the decision whether an EIA was required (see Catt, paragraph 27 per Pill LJ). Even in such circumstances, however, Pill LJ declined to hold that it was a case where it was inevitable that the uncertainties were such that a decision that the project was unlikely to have significant effects on the environment could not properly have been reached (see Gillespie, paragraph 41 per Pill LJ).

I have concluded that in the present case the Council lawfully took into account all relevant considerations and lawfully concluded, as an exercise of judgement, that the proposal did not constitute EIA development for which an EIA would be required. The relevant statutory consultee the EA had confirmed that incorporation of the necessary measures to address the management of both existing and surface water systems would ensure that the development would not lead to any significant adverse environmental impacts.

In my judgement the Council was reasonably entitled to conclude that the development was not likely to have significant effects on the environment and, therefore, the screening opinion was not unlawful. To act as they did was not Wednesbury unreasonable nor otherwise unlawful.

This applies to the points concerning the lagoon as well as the slurry tank.

In these circumstances, the Claimant’s ground 1 fails.

The Claimant submitted that the Defendant Council failed to have regard to material considerations or had regard to material considerations in that they failed to require a bio-aerosol risk assessment (as required by their own policy) or give reasons for departing from that policy or for not carrying out such an assessment.

Bio-aerosols are naturally occurring bacteria and chemicals found in the air, produced when organic matter, particularly compost, decomposes. They can also be found in high quantities in woodland and damp buildings. Their significance is that, although most people are unaffected by bio-aerosols at normal environmental levels, they are thought to cause respiratory problems, nausea, headaches and fatigue in some people. There is some evidence that high levels of bio-aerosols are found in greater concentrations in industrial-scale composting as large amounts of vegetation breaks down.

The Suffolk WLP required that an applicant submit a bio-aerosol risk assessment in connection with an anaerobic digester. WLP 13 provided as follows:

“Proposals for anaerobic digestion facilities will not be approved unless they are accompanied by a site-specific risk assessment based on clear independent evidence which shows that the bio-aerosol levels can be maintained at appropriate levels at dwellings or workspaces within 250m of a facility.”

Whilst this policy was current the applicant (the Interested Party) failed to submit a bio-aerosol risk assessment and this health risk issue was not covered in the applicant’s environmental summary or the air quality assessment. The Council’s Committee Report quoted this requirement (at paragraph 196) but failed to address the failure to comply with it.

Following committee consideration but prior to the issue of the planning permission the WLP policies were replaced by the Waste Core Strategy [WCS]. Bio-aerosols are not identified in the WCS but are included within the impacts that have to be assessed under (amongst other documents) WCS1 Aim 4 and Objective 6.

It was submitted that the change (post-committee) to a more general policy did not invalidate the science behind the specific requirement which was contained in the policy.

The Council’s 2010 pre-action response to this point was that the properties ‘outside the Applicant’s ownership all exceeded 250m’ and ‘taking into account the distances between the proposed facility and properties outside of the Applicant’s ownership’ amongst other matters (para 5.42) no assessment was required. That response pre-dated the issue of the planning permission and the revocation of WLP13. It was contrary to policy WLP13 which required an assessment for anaerobic digestion facilities of levels at dwellings or workspaces within 250 metres. Since the policy is concerned with health it does not make a distinction between properties owned by the applicant and those owned by others. The residents and workers on the Denham Estate are entitled to as much protection as anyone else.

The 2011 pre-action response also relied on the ownership point:

“6.29

... However, residents and workers on the Denham Estate are protected by normal health and safety legislation and the Applicant’s duties under the same.

6.30

Accordingly, and taking into account the distances between the proposed facility and properties outside of the Applicant’s ownership, the Environment Agency Guidance and the enclosed nature of the anaerobic digestion process, it was the professional opinion of expert officers that a risk assessment was not in this case necessary.”

No explanation was ever put before the committee and so no justification for failing to follow the policy was adopted by the Council. The explanation now given did not appear to be contemporaneously documented. The Health and Safety at Work Act 1974 imposes duties on employers to protect their employees (section 2) and persons not in their employment (section 3). In the present case the section 3 duty would extend to the Estate’s residents who are not employed by the Estate (including partners and dependents of Estate workers) and residents of non-Estate properties.

It was argued that the pre-action response therefore contains an error of law in distinguishing between those categories and in seeking to rely on Health and Safety legislation. The WLP quite rightly did not draw a distinction between employees (who would be left to the 1974 Act) and other persons who might be affected by bio-aerosols. The Council’s policy chose to require assessment of these matters. The Council erred in law in its construction of WLP13 and approach to health and safety in failing to consider the effect of the development on residents because of who their landlord was.

The Defendant Council submitted that the WLP was not relevant to this action. The WLP had been superseded by the Suffolk Waste Core Strategy with effect from 17 March 2011, over two months before the planning permission was granted. Policy WLP13 of the Suffolk Waste Plan was not replicated in the WCS when it replaced the WLP. The WCS makes no reference at all to bio-aerosol assessments.

Accordingly, regardless of the merits or otherwise of the Claimant’s ground 2 the simple fact is that even if the Council’s decision were quashed and the application for planning permission remitted for redetermination, there would be no policy requirement to carry out the bio-aerosol assessment that the Claimant complains was lacking. Further, as the witness Ms Moys explained in paragraph 10 of her witness statement (which was admitted in evidence by agreement) the development is a “closed” system in respect of which a bio-aerosol assessment is simply unnecessary.

Accordingly, even if the Claimant were to succeed on her ground 2, it would be pointless to grant any remedy.

On the issue of giving reasons, the Defendant argued that the Claimant’s submissions were founded on an incorrect premise. In particular, underlying the Claimant’s argument that the Council was required to apply policy WLP13, or to give reasons for not applying it, is the premise that the Council was required to give discrete consideration to policy WLP13. However, pursuant to section 70(2) of the Town and Country Planning Act 1990, the Council was required to have regard to relevant provisions of the development plan and, pursuant to Planning and Compulsory Purchase Act 2004, section 38(6), to decide the application for planning permission in accordance with the plan unless material considerations indicated otherwise.

In the present case, at the time of the resolution to grant planning permission the development plan consisted of the East of England Plan, the Suffolk Waste Local Plan, and the Replacement St Edmundsbury Borough Local Plan.

The requirement to determine applications in accordance with the development plan is a requirement to determine them in accordance with the plan “as a whole”. It does not require proposed development to comply with all of the policies in the development plan, which may well pull in different directions. The proposition that if there is a breach of any one policy in a development plan, a proposed development cannot be said to be “in accordance with the plan” is untenable (see R v Rochdale MBC, ex parte Milne (No 2) [2001] Env LR 22, paras 45-50; R (Cummins) v Camden LBC [2001] EWHC 1116 (Admin), paras 162-163; Stop Pyestock Blot Act Today (SPLAT) v Secretary of State for Communities and Local Government [2010] EWHC 1520 (Admin)).

The Council’s obligation in relation to the giving of reasons was that laid down by art 31(1)(a) of the Town and Country Planning (Development Management Procedure) Order 2012 (SI 2010 No 2184):

“(a)

Where planning permission is granted, the notice shall-

(i)

include a summary of their reasons for the grant of permission;

(ii)

include a summary of the policies and proposals in the development plan which are relevant to the decision to grant permission; and

(iii)

where the permission is granted subject to conditions, state clearly and precisely their full reasons for each condition imposed, specifying all policies and proposals in the development plan which are relevant to the decision”

Accordingly it was submitted:

This was what the Council did, and the Claimant has not suggested otherwise.

Further, even assuming that the Claimant could argue that the Council was required to have regard to policy WLP13 (when it was no longer part of the development plan at the time when planning permission was granted), an argument that the Council failed to have regard to that policy is unsustainable. In particular, the report to the Council’s Development Control Committee, when policy WLP13 was extant, specifically referred to bio-aerosols and to policy WLP13 in paragraphs 194-196.Further, policy WLP13 was recorded in the Council’s summary of reasons for granting planning permission as one of the policies to which regard had been had.

Similarly, it was submitted that an argument that it was irrational for the Council to grant planning permission when there had not been a bio-aerosol assessment, is equally unsustainable because:

I have concluded that the Council were in error in considering the interests of the occupiers of premises on the Interested Party’s land differently from other occupiers nearby. Tenants, who may include employees of a landlord, may be in particular need of protection, and reliance on generic health and safety at work legislation may be insufficient.

However, in this case, that error notwithstanding it is inappropriate to provide relief by way of judicial review. First, the evidence does not support the proposition that the alleged bio-aerosol risk was real – quite the contrary. Secondly, overall it was given proportionate consideration and advice obtained. Thirdly, by the time the permission was granted the material considerations had changed so that WLP 13 was no longer extant. Fourthly, the provision of relief would be an entirely otiose exercise, as the Council would simply follow the current requirements which plainly do not require a bio-aerosol assessment.

Therefore I refuse relief under Ground 2.

The Claimant asserted that Condition 11 unlawfully enables the Council to relax restrictions on the geographical area within which feedstock for the Anaerobic Digestion plant can be collected

Condition 11(i) provides that feedstock ‘shall originate from locations within a 30 mile radius of the Anaerobic Digester facility unless otherwise approved in writing by the Waste Planning Authority.’ This restriction was justified by reference to Policy WDM2 of the Waste Core Strategy and Planning Policy Statement 10. The condition allows this limitation to be relaxed or dispensed with entirely without a formal statutory process. The ability to change is not limited to immaterial alterations but may allow a substantial increase in travel distances and consequential harm to sustainability.

It was argued, therefore, that the ability to relax the geographical limits is unlawful: reference was made to R(Midcounties Co-operative Ltd) v Wyre Forest District Council [2009] EWHC 964 (Admin) at 66-72 per Ouseley J and R(Halebank Parish Council) v Halton Borough Council [2012] EWHC 1889 (Admin), [2013] J.P.L. 57 at 94-103 per HH Judge Gilbart QC.

It was argued that this tailpiece can be severed from the planning permission.

The Council argued that it had previously pointed out that, even if the final ten words of condition 11(i) were unlawful, those words are both textually and substantively severable from the rest of the condition, and that would be the appropriate remedy (such an approach was adopted in Midcounties Co-operative, paragraphs 71-74, and in R (Warley) v Wealden DC [2012] Env LR 4, paragraph 91). Given that the Claimant’s skeleton argument apparently accepted this proposition, any flaw in condition 11 should not lead to the planning permission being quashed.

Nevertheless, it was argued that this case is very different from the Midcounties Co-operative case. In that case, the condition in question enabled the local planning authority to vary the permitted floor space of a retail development. As Ouseley J noted (at paragraph 70), that condition:

“…on its face does enable development to take place which could be very different in scale and impact from that applied for, assessed or permitted and it enables it to be created by means wholly outside any statutory process. It undermines the effect of specifying floorspace limits. I do not consider that a public document such as a planning permission should contain such a provision…. The floorspace limits are of central importance”

Thus in Midcounties Co-operative, the condition in question therefore went to the heart of the development: it was, as Ouseley J put it, “of central importance”. The same cannot be said of a condition which enables a variation in the geographical area from which feedstock for the development can be obtained. A variation in that respect would not result in a development that was different in scale and impact from that permitted, and it would not enable a “key element” of the development to be changed: in this context my attention was drawn to R (Salford Estates (No 2) Ltd) v Salford City Council [2011] EWHC 2097 (Admin), para 38 per HHJ Waksman QC sitting as a Deputy High Court Judge. There the learned Judge said:

“This is not a Midcounties case. [The] condition .. is not concerned with any aspect of the permitted superstore at all. It is rather concerned with ancillary highway works. Mr Tucker accepts that the facts in Midcounties are different from those in this case, but says that its underlying principle applies here nonetheless. I disagree because there is no sense in which this condition operates to subvert the planning process by allowing for a key element to be changed without the formality of a formal application or application to vary.”

This case is much nearer to Salford Estates than Midcounties. Condition 11 cannot lawfully be applied arbitrarily or without proper and proportionate consideration or reasoning, as any such application would render the Council liable to Judicial Review. Further, and centrally, the condition does not allow for a key element of the planning consent for the anaerobic digestion plant to be changed at all. Nevertheless it has not been suggested by the defendant that the tailpiece was supported by any clear reasoning: indeed, the evidence was that the 30 mile radius was reached after appropriate consultation with other planning authorities.

In my judgement the appropriate Order under this aspect of the Claim is that relief be granted to the extent that the words ‘unless otherwise approved in writing by the Waste Planning Authority’ be severed from the consent.

To that limited extent I grant relief in this case.