Surringer, R (on the application of) v Vale of Glamorgan Council & Ors

INTRODUCTION

The claimant challenges the decision of the defendant council (“VoG”), made on 4 September 2015, to grant full planning permission to the Interested Party (“Brown”) for the construction of a facility for the recycling of incinerator bottom ash (“IBA”). The recycling process produces incinerator bottom ash aggregates (“IBAA”) for use in road construction, and also allows the recovery of metals. The site to which the application related is at Wimborne Road in Barry (“the site”).

On 3 December 2015, Collins J gave the claimant permission to make this application. At that time, there were five grounds. Grounds 1 and 2 concerned the categorisation of the IBA; Ground 3 was concerned with the consultation process; and Grounds 4 and 5 related to the potentially harmful effects of dust from the site. The claimant now seeks to introduce a sixth ground, which is loosely connected to the categorisation issue at Grounds 1 and 2.

In giving permission, Collins J said:

“While I recognise the force of the matters raised in the Acknowledgement of Service, the elaborate and lengthy arguments do not persuade me that the claim is unarguable. The categorisation of the waste and the effects of the dust are highly material and it seems to me to be arguable that the officer’s report did not adequately inform the committee of all that was needed.”

I propose to deal with the issues that arise in this case as follows. In Section 2, I deal briefly with the plant where the incineration occurs. In Section 3, I set out the history of the planning application. In Section 4, I deal with the decision. In Section 5, I set out the relevant legal principles. In Section 6, I make some general observations about the grounds of challenge before, at Sections 7-12 inclusive, addressing each of the specific grounds. There is a summary of my conclusions in Section 13 below. I am very grateful to both counsel for the excellence of their written and oral submissions.

THE TRIDENT PLANT

In 2010, Viridor Waste Management Limited were granted permission to build and operate an incinerator at a site at Trident Park in Cardiff. There were references to Viridor’s Lamby Way tip and I was told at the hearing that this was part of the same site. The granting of that permit was controversial, in part because of the IBA produced as a result of the incineration operation. In the decision document granting the permit, the Environment Agency said:

“The Environment Agency recognises that most incinerator bottom ash (IBA) is likely to be classified as non-hazardous waste. However, IBA is classified on the List of Wastes as a ‘mirror entry’ which means it could potentially be categorised as a hazardous waste if it is found to possess a hazardous property.”

It appears that, at that time, a site was identified in Cardiff, close to Trident Park, for the recycling of the IBA. It was decided for environmental reasons that that site was unsuitable.

The evidence provided on behalf of the claimant makes repeated references to the alleged problems created as a result of Viridor’s incineration operation at Trident Park and the tip at Lamby Way. In particular, Mr Wallis, a retired mathematician and scientist, who is a member of Barry and Vale Friends of the Earth and who has provided almost all the evidence relied on by the claimant, makes a number of references to this other site in both his responses to the consultation and in the evidence before the court.

In my view, the evidence in respect of the Trident Park site is of very limited relevance to the issue before me. There is nothing to suggest that the incineration operation run by Viridor is not continuing generally in accordance with the terms of its permit. The fact that the battle against that permit was lost may have coloured the environmental opposition to the current grant of planning permission (Footnote: ¹), but it is important to ensure that this application focuses on the decision to grant permission for the site in Barry, and does not get sidetracked by the (long lost) battle over Trident Park.

THE PLANNING APPLICATION

The application for planning permission in respect of the Barry site was made by Brown on 27 March 2015. It was accompanied by a large suite of documentation. This included the Environmental Statement (“ES”). At paragraph 3, under the heading ‘IBAA and its Use’, the ES said:

“The site will process Incinerator Bottom Ash (IBA) produced at the Trident Park Energy Recovery Facility in Cardiff. The ERF plant will burn 350,000 tonnes of waste a year. This will result in the production of 75,000 of IBA which equates to just over 20% of the burnt waste. This rate of production is expected to continue for the foreseeable future, although it could fluctuate. The IBA is non-hazardous and suitable for processing to produce recycled aggregates. The Barry facility would produce approximately 67,500 tonnes of recycled aggregate and therefore be a major source of recycled material in South Wales, contributing towards meeting the planned requirements as an alternative to Land 1 materials.”

Further, there was an Ecological Assessment which, amongst other things, addressed the possible consequences of the proposed recycling development for the Cadoxton Wetlands, the closest Site of Importance for Nature Conservation (SNCI). The SNCI is sometimes referred to in the documents as the Dow Corning Nature Centre. In the Ecological Assessment, the authors noted:

“8.1.3

Dust will be managed according to best practice under a dust management plan. No adverse impact is therefore predicted either on site or on adjacent sites…

8.2.1

The closest non-statutory site, the Cadoxton Wetlands SNCI is within 50 metres at the closest point. It is concluded that there will be a negligible impact on the site…

10.1.3

The development will not affect the only area of semi-natural vegetation and the impact on the site is considered to be negligible. There is not considered to be any greater effect on adjacent land including Cadoxton Wetlands SNCI on the grounds of direct impact, dust, disturbance and hydrology.”

Because of the proposal to store the IBA at the site, there was a Dust Assessment. This was a relatively lengthy document which included, as an appendix, a dust emission assessment and control scheme. The Dust Assessment itself said in respect of the proposed operations:

“IBA is produced from the incineration of municipal waste and as such is highly variable in composition and typically consists of a mixture of glass, ceramics, brick and cement, as well as ash and clinker (e.g. nodules of coke and slag).

Raw IBA has a high pH and a relatively high moisture content. The IBA conditioning process is exothermic and steam can rise from the windrows, especially in cold weather. A salty odour can derive from the IBA during conditioning.

There is a range of methods for producing IBAA from IBA; most involve ‘dry’ treatment which involves mechanical processing of the IBA such as size reduction, screening and ferrous/non-ferrous metals separation.

Prior to screening, IBA is naturally aged (i.e. weathered) in stock piles outdoors for several weeks. This stabilises the material by utilising the pozzolanic (cement-like) properties of the incinerator ash and allowing a range of chemical processes to take place, including oxidation, carbonation, hydration and hydrolysis.

The IBA aging process reduces the pH of the resultant IBAA to below 10, with a typical pH of 9.5-9.8. Stock is rotated so that the IBA is aged sufficiently before processing and weekly tests are undertaken to determine the pH with the IBAA.

The chemical composition of the IBA varies widely according to source material but can comprise common elements such as silicon, iron and calcium. Less abundant elements include lead (Pb) and Cadmium (Cd). The proportions of the elements found in IBA are likely to vary between incinerators and within the same incinerator over time due to the changeable composition of waste disposed.”

Dealing with dust propagation, the Dust Assessment said:

“Dust propagation at source depends on particle size, wind energy and other mechanical disturbance activity. Large dust particles generally travel shorter distances than small particles. It is often considered that particles greater than 30UM will largely deposit within 100 metres of sources; those between 10-30UM to travel up to 250-500 metres and particles less than 10UM to travel up to 1km from sources.”

Section 6.2 of the Dust Assessment comprised a detailed assessment of the dust risk. Amongst other things it stated:

“Secondly, in relation to wind-blown dust, table 2 shows that less than 10% of the winds blow in an arc from north-east to south-west at speeds above 6m/s. Therefore, from figure 4, there is a low likelihood of propagation of wind-blown dust towards residential receptors along Dock View Road and Hillary Road.

As previously, figure 5 indicates that the magnitude of any dust impact at Dock View Road and Hillary Road would be negligible.

Consequently, from figure 6, there is also a near-zero risk of dust impact from wind-blown dust at residential receptors from the proposed operation. Again, because table 2 shows that the frequency of dry winds is similar to that for all winds, there is both a near zero risk of dust propagation in dry weather conditions as well as in all weather conditions at the residential receptors along Dock View Road and Hillary Road from the proposed operation.

With regard to ecological impact on environmental receptors (such as the Dow Corning Nature Centre) recent guidance for demolition and construction sites can be adapted to consider the sensitivity of such receptors to dust. The key table from this guidance is reproduced at table 4…

Given that the Down Corning Nature Centre is more than 50 metres from the proposed operations at the IBAA facility, this guidance suggests that it could be considered to have Low sensitivity to dust.”

As noted above, appendix 1 dealt with the dust control scheme, which referred (amongst other things) to the proposed process for importation and loading; handling and stockpiling; the spraying of the windrows with water; and the dust suppression system. And finally, section 8 of the Dust Assessment itself dealt with the residual effects, that is to say those impacts that could not reasonably be mitigated by the measures in appendix 1. The conclusion was that:

“Likewise, for visible dust, from the assessment undertaken and the nature of the operations proposed, there is very little potential for site operations to cause adverse annoyance impact at off-site receptors.”

All of these documents were sent out for consultation. There was a lengthy list of those who were consulted, including Natural Resources Wales (“NRW”), who had, by then, taken over the responsibility of the Environment Agency in Wales. Public Health Wales (“PHW”) were also consulted. 38 representations were received which raised a number of issues (all summarised subsequently in the relevant Officer’s Report), although neither NRW nor VoG’s ecology officer had any adverse comments to make about the application.

In July 2015, during the consultation exercise and in response to queries, Brown provided some further information in respect of the proposed production process at the site. At the hearing, this was called “the July Information”. It included this paragraph:

“The IBA is the result of the burning of processed waste in a furnace at over 800°c. At this temperature some fusion occurs and any combustible materials are burnt off. The ERF Permit required that unburnt shall not exceed 2%. The residual IBA, which has reduced by 80% by weight from input, is then quenched in a pit at the ERF before being placed in stockpiles at Trident Park prior to dispatch to the recycling site by lorry. At this stage the material is classified as non-hazardous waste (As agreed through the Energy Services Agency (‘ESA’) Protocol).”

The ESA Protocol to which Brown referred related to IBA. It said that it contained “guidance on how to develop a plant-specific sampling plan” which ensured that various requirements were met. There was a section in the Protocol on sampling and a separate section entitled ‘Classification Assessment Procedure’. Under the sub-heading ‘Hazardous assessment and classification of IBA from the plant’, the Protocol said:

“The second step in the assessment scheme is to use the standards defined in the protocol to judge whether or not the plant’s IBA waste stream, as represented by the samples, should be deemed hazardous or non-hazardous.

The classification procedure in the Protocol, as approved by the Environment Agency, is based upon a 90^th percentile standard. This means that for the IBA to be non-hazardous, the threshold concentration should be exceeded for no more than 10% of the time.

The Protocol requires the plant operator to judge compliance with the 90^th percentile by counting the number of samples that exceed the WM2 thresholds…

Although 10% equates to 2.4 exceedances in every 24 samples, in practice even a compliant IBA process may experience as many as 6 exceedances over a single year due to random sampling variations. For that reason up to 6 exceedances are allowed which thereby ensures that the risk of complaint IBA being mistakenly classified as hazardous waste is limited to 5%.”

On 24 August 2015, Mr Wallis emailed VoG’s planning officer. It is plain from his email that he had seen the July information, which had been uploaded onto the VoG website. He referred to the ESA Protocol and said:

“The document promises routine testing under the ESA protocol to check the IBAA ‘remains non-hazardous’; yet that protocol checks only twice-monthly samples and disregards many that come over the ‘hazardous waste’ threshold, up to 5 exceedances in 24 samples, 2 in a row, or exceedance 4 times over the threshold (s2.1of the ESA protocol). It tests the full 15 hazard characteristics including H14 ecotoxicity once a year. It does not isolate samples which exceed the standard but investigates causes for repeated breaches or a 4 times exceedance. Nor does it propose to isolate IBA that should be called as ‘hazardous waste’ under EU rules, pending tests that take weeks, preparatory to returning it to Viridor.”

Mr Wallis’ response led to a supplementary page of information, from Brown, dated 27 August 2015. This explained the classification of IBA in greater detail. Of the ESA Protocol, it said:

“The protocol was derived looking at performance over a long period of time and showed IBA to be non-hazardous, consistent with that similarly produced in the rest of Europe and elsewhere in the world…Most of the hazardous properties are not relevant for IBA and so full assessments are carried out less frequently (annually). Those properties that are pertinent to IBA are assessed twice monthly from a restricted suite of analysis.”

This was referred to at the hearing as “the August information”.

At the same time as the consultation process was ongoing, NRW granted Brown a permit to carry out the recycling operation at the site. The permit was dated 13 August 2015, numbered EPR/LP3239AW. One of the relevant activities was described in the permit as the “storage of wastes” pending recycling. The limit on this activity was described as “the receipt, handling, storage and treatment of non-hazardous incinerator bottom ash of the types of waste listed in table 2.2”. Table 2.2 made plain that hazardous wastes “shall not be accepted.”

On 2 September 2015, Mr Wallis sent VoG a further email. This was the day before the meeting of the relevant planning committee. This belatedly raised a number of issues about the dust at the Lamby Way site; a history of other dusty operations on the site in Barry; and paragraphs under a heading ‘IBA dust contains toxic metals etc’. This said that Brown’s Dust Assessment “ignores the toxicity to health”. This was the first express reference to health in any of the responses to the consultation. This point was then summarised in the Officer’s Report as “IBA ash is toxic and its proximity to residential houses”.

THE DECISION

At the meeting of the planning committee on 3 September 2015, there were no oral objections to the application. The committee had before them, not only Mr Wallis’ late email, but also a lengthy Officer’s Report. It would be unnecessarily wearisome to set out large parts of that Report in this Judgment. The Report reflected the application documentation, noting that “the bottom ash is classified as non-hazardous.” It identified the relevant planning policies and guidance. On waste policy, the Report said:

“To this end, the proposal is complying with the general principles of waste strategy set out in the national documents by recycling 100% of the bottom ash material that would be produced by the ERF plant in Cardiff. In essence, this would recycle a non-hazardous waste material that would otherwise be sent to landfill, but also produces a usable secondary aggregate product that could reduce the need for quarried stock material for both aggregate and cement production.”

The Report also dealt with ecology (noting that, as part of the consultation, VoG’s ecology officer had been consulted and that she had stated that she had no concerns with respect to ecology issues), and the Dust Assessment. The Report recommended that the planning application be approved, subject to conditions.

Following a lengthy debate, summarised in Mr Goldsworthy’s witness statement, the planning committee decided to grant full planning permission, subject to conditions. Their decision was confirmed the following day, 4 September 2015.

THE RELEVANT LEGAL PRINCIPLES

Not a Challenge on the Merits

It is not the role of this court, on an application of this kind, to test the ecological and planning judgments made in the course of VoG’s decision-making process. Assessing the nature, extent and acceptability of the effects that a development will have on the environment is always – apart from the limited scope for review on public law grounds – exclusively a task for the planning decision-maker: see paragraph 130 of the judgment of Lindblom J (as he then was) in R (Prideaux) v Buckinghamshire County Council [2013] EWHC 1054 (Admin).

Judges have repeatedly warned that general public law principles cannot be used as a vehicle for challenging the merits of legitimate planning judgments: see paragraph 21 of the judgment of Lang J in R (Hayes) v Wychavon District Council [2014] EWHC 1987 (Admin). In her judgment, Lang J cites the well-known warning of Sullivan J (as he then was) in Newsmith v Secretary of State for the Environment, Transport and the Regions [2001] EWHC 74 (Admin):

“In any case, where an expert tribunal is the fact finding body the threshold of Wednesbury unreasonableness is a difficult obstacle for an applicant to surmount. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he or she is reaching a series of planning judgments…Moreover, the Inspector's conclusions will invariably be based not merely upon the evidence heard at an inquiry or an informal hearing, or contained in written representations but, and this will often be of crucial importance, upon the impressions received on the site inspection. Against this background an applicant alleging an Inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgment, faces a particularly daunting task.”

Lang J observed that, although Newsmith was concerned with an application to quash under s288, the judge’s cautionary observations were also directly relevant to judicial review claims challenging decisions by planning authorities which, as here, have exercised planning judgment in the light of local knowledge.

The Relevance of the Permit

In his written submissions, dealing with the extent to which a planning decision-maker was entitled to have regard to the permit and the role of a specialist regulator (NRW in the present case), Mr Hercock relied on a number of authorities, including R v Bolton MBC ex parte Kirkham [1998] Env LR 719 at page 725; Gateshead MBC v Secretary of State for the Environment [1995] Env LR 37 at page 48; Ardley Against Incineration v Secretary of State for Communities and Local Government[2012] JPL 268 at paragraph 66 onwards; and R (Frack Free Balcombe Residents Association) v West Sussex County Council [2014] EWHC 4108 (Admin) at paragraphs 25-40.

It is, I think, unnecessary to set out lengthy extracts from each of those cases. The better course is to go to Balcombe, in part because it is the most recent; in part because it sets out in detail the current approach to the inter-relationship between the planning application and the existence of a permit; and in part because Ms Hutton did not raise any points in respect of that decision and its applicability to the present case. Gilbart J’s summary includes the following paragraphs:

“25.

Planning control is but one of the statutory regimes which can affect the carrying out of a development, or its use. At paragraph 4 above I have set out the various statutory regimes in play here. They do not all operate in the same way. Thus, while a planning permission cannot be revoked or modified by the minerals or local planning authority (as the case may be) without giving rise to a liability to compensation (see s 97-100 TCPA 1990) (and such revocations or modifications are therefore extremely rare) a permit from the EA can be modified by the EA to reflect changes in circumstance or knowledge without a right to compensation – see Regulation 20 of the Environmental Permitting (England and Wales) Regulations 2010. (A planning permission may only be changed without there being an entitlement to compensation where the owner proposes the change, and then only so far as its conditions are concerned - see s 96A TCPA 1990 as amended).

26.

Plainly, while the effect of an activity on the environment is a material consideration, so too is the existence of a statutory code or codes which address(es) the effect(s) being considered. Thus, the generation of airborne emissions or the potential for contamination of groundwaters are matters falling squarely within the purview of the EA permit regime: similarly, well integrity falls within the purview of DECC and of the HSE, and so on. Some fall within the remit of more than one statutory body.

27.

It is therefore sensible that where one has a statutory code to address some technical issue, one should not use another statutory regime as an alternative way of addressing the issue in question.

28.

It has been the stated policy of the First Secretary of State and his predecessor Secretaries of State for many years that while the effects of emissions to air or water generated by an installation are a material planning consideration, yet the planning system should recognise that the judgments on the acceptability of those emissions in pollution control terms are to be made by the pollution control authorities/regulators, whose judgments should then be accepted by the planning system. That has been extended to the interrelationship between planning control and other statutory codes.

…

34.

It can thus be seen that the Court of Appeal endorsed what was then the approach in national policy, and remains so, as "sound common sense." The Gateshead approach has been followed ever since. In Cornwall Waste Forum St Dennis Branch v Secretary of State for Communities and Local Government[2012] EWCA Civ 379 [2012] Env LR 34 a challenge was made to a grant on appeal of planning permission for an "energy from waste" plant. The Inspector and Secretary of State had relied upon an EA permit as showing that there was no need for an appropriate assessment of the permission – the main issue being emissions into the air. Carnwath LJ accepted that approach, stating at paragraphs 30, 34 and 38:

"30.

…there was no misdirection. The inspector was not saying that the emissions were irrelevant to the planning decision, but was simply following the well-established principle, approved by this court in Gateshead MBC v Secretary of State (1971) 71 P. & C.R. 350 (citing the then current policy guidance, which is reflected in similar guidance today) that:

"It is not the job of the planning system to duplicate controls which are the statutory responsibility of other bodies… Nor should planning authorities substitute their own judgment on pollution control issues for that of the bodies with the relevant expertise and the responsibility for statutory control over those matters."

…

34.

…He observed correctly that the control of such emissions in this case was a matter for the Environment Agency. Although the overall planning judgment was one for the Secretary of State, he was entitled to be guided on this issue by the agreed position of the two specialist agencies. That was entirely consistent with the familiar approach approved in cases such as Gateshead. Mr Wolfe was right not to put this point at the forefront of his case.

38.

By the same token, in so far as the possibility of harm to those interests arose from stack emissions, he was entitled – in either capacity – to be guided by the expertise of the relevant specialist agencies, the Environment Agency and Natural England. It would be only if their guidance was shown to be flawed in some material way that his own decision, relying on that guidance, would become open to challenge for the same reason."”

Information, Inquiries and Consultation

The general approach to inquiries, consultations and the like was summarised by Lang J in her judgment in Hayes. She said:

“29.

The Claimant correctly submitted that a planning authority (acting through its planning officer) is under a duty to take all reasonable steps to acquaint itself with the information relevant to the decision in order to be able to arrive at the correct decision, citing Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1997] AC 1014 and R v Secretary of State for the Home Department ex p Iyadurai [1998] Imm AR 470, per Lord Woolf MR at 475. As a general principle, that is uncontroversial, but plainly the scope and content of the duty will vary according to the context.

30.

Where a public body has to conduct an inquiry, pursuant to statutory powers and duties, it is entitled to decide upon the extent of the inquiry, subject only to the supervisory jurisdiction of the court. The principles were helpfully explained by Laws LJ in R (Khatun) v London Borough of Newham[2004] EWCA Civ 55[2005] QB 37, at [35]:

“…it is for the decision-maker and not the court, subject again to Wednesbury review, to decide upon the manner and intensity of inquiry to be undertaken into any relevant factor accepted or demonstrated as such. This view is I think supported by the judgment of Schiemann J in R v Nottingham City Council, Ex p Costello (1989) 21 HLR 301, to which Mr Luba referred us. That case concerned the degree of inquiry which an authority was obliged to undertake into issues of priority need and intentional homelessness. Schiemann J said, at p 309:

"In my view the court should establish what material was before the authority and should only strike down a decision by the authority not to make further inquiries if no reasonable council possessed of that material could suppose that the inquiries they had made were sufficient."

This approach is lent authoritative support by the decision of this court in R v Kensington and Chelsea Royal London Borough Council, Ex p Bayani (1990) 22 HLR 406, which was concerned with the authority's duty of inquiry in a homelessness case. Neill LJ said, at p 415:

"The court should not intervene merely because it considers that further inquiries would have been sensible or desirable. It should intervene only if no reasonable housing authority could have been satisfied on the basis of the inquiries made."

31.

In my judgment, similar principles apply where a planning authority conducts an inquiry into a planning application within the statutory framework of the TCPA 1990 and the relevant national and local planning policies. Where it is alleged that the planning authority failed in its duty to make sufficient inquiry, the question to be asked is whether the inquiry made by the planning authority was so inadequate that no reasonable planning authority could suppose that it had sufficient material available upon which to make its decision to grant planning permission and impose conditions.”

In the current case, Ground 3 raises a particular issue regarding Regulations 2 and 19 of the EIA Regulations. The issue is whether the July information and the August information amounted to “any other substantive information relating to the environmental statement” which should have been published and consulted upon. Counsel were agreed that this in turn gives rise to the need for the court to resolve a potential difference of approach between Bean J (as he then was) in Jenkins v Gloucestershire County Council [2012] EWHC 292 (Admin) and Lewis J in R (Corbett) v Cornwall Council [2013] EWHC 3958 (Admin). I deal with that debate in Section 10 below, where I address Ground 3.

The Officer’s Report

I was referred to a number of cases in which the nature status and effect of the Officer’s Report have been considered. I take them chronologically.

In R v Mendip District Council [2000] 80 P&CR 500, Sullivan J (as he then was) said:

“Whilst planning officers' reports should not be equated with inspectors' decision letters, it is well established that, in construing the latter, it has to be remembered that they are addressed to the parties who will be well aware of the issues that have been raised in the appeal. They are thus addressed to a knowledgeable readership and the adequacy of their reasoning must be considered against that background. That approach applies with particular force to a planning officer's report to a committee. Its purpose is not to decide the issue, but to inform the members of the relevant considerations relating to the application. It is not addressed to the world at large but to council members who, by virtue of that membership, may be expected to have substantial local and background knowledge. There would be no point in a planning officer's report setting out in great detail background material, for example, in respect of local topography, development planning policies or matters of planning history if the members were only too familiar with that material. Part of a planning officer's expert function in reporting to the committee must be to make an assessment of how much information needs to be included in his or her report in order to avoid burdening a busy committee with excessive and unnecessary detail.”

In R (Morge) v Hampshire County Council [2011] UKSC 2, Baroness Hale said at paragraph 36:

“Democratically elected bodies go about their decision-making in a different way from courts. They have professional advisers who investigate and report to them. Those reports obviously have to be clear and full enough to enable them to understand the issues and make up their minds within the limits that the law allows them. But the courts should not impose too demanding a standard upon such reports, for otherwise their whole purpose will be defeated: the councillors either will not read them or will not have a clear enough grasp of the issues to make a decision for themselves. It is their job, and not the court's, to weigh the competing public and private interests involved.”

Finally, in Hayes Lang J adopted the following principles in respect of officer’s reports:

“a)

A report is not addressed to the world at large but to council members, who, by virtue of that membership, may be expected to have substantial local and background knowledge including local development plan polices.

b)

It is not necessary for the report to set out development plan policies as it is reasonable to anticipate that the members will be familiar with that material.

c)

The report should not contain excessive and unnecessary detail.

d)

Reports do not (and should not) seek to be exhaustive.

e)

The report by a planning officer to his committee is not and is not intended to provide a learned disquisition of relevant legal principles or to repeat each and every detail of the relevant facts to members of the committee who are responsible for the decision and who are entitled to use their local knowledge to reach it.

f)

The report is not susceptible to textual analysis appropriate to the construction of a statute or the directions provided by a judge when summing a case up to the jury.

g)

The courts should not impose too demanding a standard upon such reports, for otherwise their whole purpose will be defeated.

h)

An application for judicial review based on criticisms of the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the Planning Committee before the relevant decision is taken.

i)

It is the job of the Council, and not the court's, to weigh the competing public and private interests involved.”

THE GROUNDS OF CHALLENGE: GENERAL OBSERVATIONS

The six grounds of challenge are as follows:

The claimant does not yet have permission to raise Ground 6; it is the subject of a late application to amend. In order to save time, I allowed the parties the opportunity to argue about both the amendment and the merits of Ground 6 at the hearing. I set out my views on Ground 6 in Section 9 below.

Ms Hutton and Mr Hercock both addressed Grounds 1, 2 and 6 first. This is because those three grounds are all concerned, in one way or another, with the classification of the IBA and the alleged risk to health that it may pose. I regard this issue, and therefore these Grounds, as the most important topic raised by this application. It requires a careful consideration of the planning process undertaken by VoG, and the role of NRW.

The other three questions are a miscellaneous group. For the reasons set out in detail in Section 10 below, I consider that Ground 3 is entirely technical and of no substantive merit. And as set out in Sections 11 and 12 below, I consider that Grounds 4 and 5 raise issues which were properly considered during the decision-making process. They are far removed from any sort of cogent Wednesbury argument.

GROUND 1: THE CLASSIFICATION OF IBA AS NON-HAZARDOUS

Waste such as IBA is classified under the List of Wastes or European Waste Catalogue. It is known as a ‘mirror’ entry waste, which means that it must be assessed for hazardous properties to identify which EWC code should be assigned to it, and whether it is a hazardous waste, subject to the hazardous waste regulations. As noted in paragraphs 5 and 19 above, most IBA is likely to be classified as non-hazardous but, if it is found to possess a hazardous property, it would be categorised as hazardous waste.

On that basis, the claimant maintains that the statement in the Officer’s Report (“the bottom ash is classified as non-hazardous”) was misleading and amounted to a fatal flaw in the decision-making process in this case.

I do not accept that proposition for a number of reasons.

First, it is I think common ground between the parties that, rather than referring to the properties of IBA in general, the officer was referring to the particular IBA that was going to be brought to this site; stored at this site; and subjected to the recycling process at this site. On that basis, this was an accurate categorisation. The entirety of the planning application was based on the premise that the IBA taken to, stored and used on this site would be non-hazardous. That was the express basis of the Environmental Statement (paragraph 9 above). Accordingly the Officer’s Report was not misleading: it reflected, as the planning committee would have known that it reflected, the specific proposal for this particular site.

Secondly, the fact that the IBA brought to, stored and used on this site was non-hazardous, was reflected in the relevant permit granted by NRW (paragraph 20 above). The permit made plain, not only that non-hazardous IBA would be received, handled, stored and treated at this site, but that hazardous waste (including, therefore, hazardous IBA) “shall not be accepted”. The Officer’s Report therefore reflected the permit: that only non-hazardous waste would be brought to site. On that basis, too, the Officer’s Report was not misleading: it confirmed what the planning committee would already have known.

Thirdly, applying the principles set out in Section 5.4 above, it would be excessively legalistic, and would ignore the knowledgeable readers to whom the report was addressed, to say that the officer should instead have said: “IBA is generally classified as non-hazardous, but may sometimes be classified as hazardous. However this application and the relevant permit are both limited to non-hazardous IBA”. This would be contrary to the approach that the court should take to reports of this kind, set out in Section 5.4 above.

In reality, the claimant’s complaint in this case is that she is not satisfied that there are sufficient safeguards in play to ensure that hazardous IBA will not be brought to the site. I am sure that her concern is genuine. But in the circumstances of this case, that cannot vitiate the decision of the planning committee.

Why not? Because the committee knew that, although IBA could theoretically be classified as hazardous, that was not a matter with which they needed to concern themselves, given that Brown were only entitled, by the express terms of the permit, to bring non-hazardous IBA onto the site. The authorities to which I have referred in Section 5.2 above, and in particular the summary of the interaction between planning permission, on the one hand, and the terms of the permit, on the other, set out by Gilbart J in the Balcombe case, make that clear. VoG was entitled to rely, not only on the fact that NRW had granted a permit in these terms, but that NRW would thereafter regulate the site so as to ensure that the permit was complied with.

In my view, this conclusion reflects reality. NRW had the statutory obligation to regulate compliance with the permit. That was nothing to do with VoG. VoG were therefore entitled to rely on NRW’s regulation of the site.

In addition, I consider that this conclusion properly reflects the different legal obligations owed by VoG and NRW. Pursuant to Schedule 9 Paragraph 4 of the Environmental Permitting (England and Wales) Regulations 2010, NRW was obliged to exercise its functions “for the purposes of implementing Article 13 of the Waste Framework Directive”. Article 13 is concerned with the protection of human health and the environment. Compared to that mandatory obligation owed by NRW, VoG, as the planning authority, had a much more limited obligation, pursuant to Regulation 18 of the Waste (England and Wales) Regulations 2011, to “have regard” to Article 13. In my view, based on the documents as a whole, VoG plainly had regard to this issue, but were entitled to rely on NRW for permitting and regulatory purposes.

On behalf of the claimant, Ms Hutton referred to the July information to make the subsidiary point (which Mr Wallis had made in response to the consultation) that the testing regime and the ESA protocol meant that sometimes hazardous IBA might be allowed on site (the 10% point noted in paragraph 18 above).

I do not consider that this could vitiate the grant of planning permission for two separate reasons. First, the detail of the testing regime to be undertaken was a matter quintessentially for NRW, not the planning committee. But secondly, taken at its highest, this argument amounts to a criticism of the ESA (or perhaps the Environment Agency or NRW) for producing, doubtless after careful study, a testing regime which was capable of having that result. If anything, therefore, it is an attack on the testing regime being used by the ESA. It is nothing whatsoever to do with the planning decision of 4 September 2015.

Accordingly, on Ground 1, I reject the submission that the statement in the Officer’s Report was materially misleading. The planning application, the supporting documentation, the consultation, the permit, and the Officer’s Report were all plainly based on the fundamental premise that the IBA brought to this site would be non-hazardous.

GROUND 2: THE ALLEGED FAILURE TO TAKE INTO ACCOUNT THE RISKS TO HUMAN HEALTH, EVEN IF THE IBA WAS NON-HAZARDOUS

On behalf of the claimant, Ms Hutton put Ground 2 by way of two different arguments. One was an extension of the point noted in paragraphs 49 and 50 above, namely that the ESA Protocol, even if rigidly enforced, would still allow at least the possibility that hazardous IBA would be brought to the site. The other point was that, although health questions had been raised in the consultation process, it was nowhere dealt with in the Officer’s Report.

As to the ESA Protocol, I have set out my views in paragraphs 49 and 50 above. This was not a matter for the planning committee. They were entitled to rely on NRW. Moreover, if it was anything, it was an attack on the ESA protocol itself. Either way, it could not be an attack on the decision of 4 September.

As to the wider health point, it is not right to say that issues as to human health clearly arose during the consultation process. Neither Mr Wallis’ email of 24 August 2015, nor any other response from any consultee, raised any health issues at all. Mr Wallis’ last minute email of 2 September 2015 did refer to health (see paragraph 21 above) but it only does so in passing, and by reference to the alleged toxicity of the IBA. This in turn is a point that is raised solely in the context of the risk of dust escaping from the site.

Viewed objectively, when taking into account all of the information available to the planning committee, there was no solid evidential foundation to suggest that the proposed use of the site posed a risk to human health, and/or that any relevant material relating to human health was not taken into account by the committee. As I have said, the reference to any danger to health was made in passing, and was properly reflected in the Officer’s Report under the heading ‘Representations’. The underlying issue was the potential for dust to be blown from the site, and the potential damage that might be done in consequence. As set out in paragraphs 11-14 above, I consider that that issue was extensively covered in the planning application, and in particular in the Dust Assessment. The conclusion was that this posed no or minimal risk.

Accordingly, it seems to me that the question of the risks (including any risks to health) posed by dust spreading from this site were fully consulted on and considered by both the Officer’s Report and the planning committee. There was no arguable deficiency in the decision-making process. The committee were quite entitled to conclude that, for example, the dust suppression measures recorded in the Dust Assessment were adequate so that dust would not spread from the site, so that it followed that there would be no or minimal risk to health in any event.

For all these reasons, the IBA on this site was properly classified as non-hazardous, and the alternative argument encompassed in Ground 2 cannot succeed.

GROUND 6: THE CONSULTATION FAILURES IN RESPECT OF:

PHW;

LOCAL HEALTH BOARDS

Ground 6 is the subject of a late application to amend. I accept that some of the information on which it is based stems from the recent answer to a FoI request, but I am not satisfied that that request was made promptly. However, I am of course anxious to ensure that all the relevant arguments are dealt with, provided no prejudice is caused to either side. Accordingly, in the exercise of my discretion, and with one caveat, I have concluded that the claimant should be permitted to argue Ground 6. I therefore give the necessary leave.

The caveat is that VoG cannot be prejudiced as a result of the late raising of an issue as to the past practice and frequency of VoG consulting PHW using the particular email address that was used on this occasion. The claimant has provided very recent evidence on that topic, and VoG has not had an opportunity to deal with it properly. However, for the reasons set out below, I am confident that, in truth, Ground 6 can be resolved in a way that does not turn on any of the contested evidence.

At the outset, I should say that, in my view, there are two complete answers to Ground 6. The first is that, for the reasons noted under Grounds 1 and 2 above, the planning committee was entitled to conclude that there was no risk to human health because the IBA brought to this site would be non-hazardous. The second is that the points raised in Ground 6 about the consultation process trespass into areas which are uniquely a matter for the decision-maker, contrary to the principles noted in Section 5.3 above. However, for completeness, I deal briefly below with the particular issues raised under Ground 6.

I turn first to the issue regarding the consultation with PHW. The evidence is that Public Health Wales (“PHW”) were on the list of consultees. They were sent the application and all the supporting documents. They did not comment upon it. Subsequently, it has transpired that the email address to which the consultation documents were sent was a generic account which, by the time of this consultation, was not manually monitored. The account was still live because the documents did not bounce back but, as PHW now accept, “the auto-forward rule setting on that account failed”. Ms Hutton says that the use of this email address made the consultation unlawful and/or unreasonable.

I do not accept that submission. The agreed evidence is that this was an email address which VoG had used on at least one previous occasion, in order to consult PHW on a planning application such as this. On that occasion, PHW had replied to the consultation using that email address. It does not appear that, in the interim, PHW had informed VoG that the email address that they had previously used for at least one consultation was no longer operational. In those circumstances I find that VoG were entitled to use that email address.

In the alternative, Ms Hutton complains that, because there was no response from PHW, VoG should have realised that something was wrong and should have checked with PHW that the consultation material had been safely received. She properly accepted that she had been unable to find any authority in support of such a startling proposition.

The fact that this email account was live but was now unmonitored by PHW was a matter for PHW. It was not a matter for VoG. As PHW have themselves said, the failure of the auto-forward rule setting was entirely a matter for them. A decision-making body such as VoG, conducting a consultation of this kind, cannot be expected to check that each of the recipients had received all the relevant material. The lack of a response to the consultation did not suggest that PHW had not received the material, particularly as VoG had expressly said to them in the covering email that “in the event of no reply being received, it will be assumed that you have no observations and the planning application will be determined accordingly”. I agree with Mr Hercock that PHW’s internal email arrangements cannot be used to undermine the legality of the decision-making process in this case.

The second specific point under Ground 6 was to the effect that, rather than consulting PHW, VoG ought to have consulted the local health board. It was argued that, pursuant to s.17 of the National Health Service (Wales) Act 2006, it was they who had the relevant responsibility for public health. Ms Hutton submitted that, in those circumstances, the local health board was a body designated by statutory provision as having specific environmental responsibilities in accordance with Regulation 2(1)(b)(v) of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. In that regard Ms Hutton also relied on Regulation 13 to say that the local health board should have been consulted.

Mr Hercock disagreed, noting that the local health board had no specific environmental responsibility under the EIA Regulations and that s.17 of the 2006 Act made no reference to environmental responsibility at all. In my view, Mr Hercock was right in his interpretation of the 2006 Act and the Regulations. I am not persuaded that the local health board was a body with whom VoG were obliged to consult. There was no statutory or common law duty to consult the local health board (Footnote: ²).

But if I am wrong about that, the highest that it can be put is that VoG were obliged to consult either PHW or the local health board. They were not obliged to consult both, since that would have been duplicatory. This conclusion is based on the documents relied on by the claimant which explain the interrelationship between the local health boards and PHW in circumstances such as these. There, PHW say:

“In Wales, health boards have the statutory responsibility for the health and wellbeing of the population they serve.

To support health boards fulfil their environmental health protection responsibility, services are delivered through a collaborative working model between Public Health Wales and Public Health England’s Centre for Radiation, Chemical and Environmental Hazards (CRCE) Wales.

Public Health Wales is the lead agency in Wales and provides partner agencies and the public with independent, specialist advice and support to minimise exposures to, and health impact from, environmental hazards.”

An accompanying flowchart makes plain that any planning application with a potential public health element would be passed to the local health board who would then consult PHW. PHW would provide the formal response to the relevant planning authority via the local health board.

In other words, even on the claimant’s case, PHW was the body responsible for giving health and environmental advice to the planning authority where a planning proposal raised a potential issue as to public health. They were therefore precisely the right people for VoG to consult. The documents noted in the preceding paragraph make plain that, if VoG had gone to the local health boards first, they would simply have passed the consultation documents on to PHW. In that sense, all VoG did was to endeavour to cut out the middle man.

I acknowledge that the documents suggest that PHW preferred all references to them to come via the local health boards. That is understandable. But in this case, the reference, by way of the consultation, came to them directly. The evidence was that this was not the first time that this had happened. That again supports the conclusion that there was nothing wrong with the direct consultation in this case.

For all these reasons therefore, although I allow the application to amend to allow the claimant to argue Ground 6 (subject to the caveat as to the recent evidence), I reject it on the merits.

GROUND 3: THE ALLEGED FAILURE TO PUBLICISE SUBSEQUENT ENVIRONMENTAL INFORMATION

The complaint is that the July and August 2015 information was substantive information relating to the Environmental Statement but was not “publicised” so was not properly the subject of any consultation. The argument is that, pursuant to Regulation 19(2) of the EIA Regulations, this was “any other information” which should have been the subject of publication and consultation (Footnote: ³). For the reasons noted below, I reject that submission.

The question of what constitutes “any other information”, has been considered in the two cases noted at paragraph 30 above. In Jenkins, Bean J said that on the facts of that case, a document called an Advisory Note was “substantive information relating to the environmental statement and provided by the applicants for planning permission”. He went on:

“It sought to address objectors' concerns on a significant issue, namely flood risk, by giving ‘a description of the measures envisaged in order to avoid, reduce, and if possible remedy significant adverse effects’. (Schedule 4, part II, paragraph 2). It was therefore "any other information" within the reg. 2(1) definition and caught by the publicity provisions of reg. 19(3)(d) to (g). The fact that it satisfied the EA is immaterial on this point.”

In Corbett, a case where Jenkins was not cited to the court, Lewis J said:

“71.

In my judgment, information is "any other information" within the meaning of Regulations 2(1) and 19 of the EIA Regulations if it is substantive information provided by the applicant to ensure that the Council is provided with the information required for inclusion in an environmental statement as required by Schedule 4 to the EIA Regulations. Thus, if the original document comprising the environmental statement was considered not to include all the information required by Schedule 4, then additional information provided at the direction of the Council to make it an environmental statement would be "further information". If such information were provided voluntarily by the applicant, it would be "any other information". Conversely, the phrase "any other information" in Regulations 2 and 19 does not include comments or responses made by the applicant in response to the concerns of, or points raised by, third parties or Council officers. Still less does it include documents submitted by third parties or generated by the Council. I reach that conclusion for the following reasons.

…

75.

Fourthly, the Claimant's interpretation could lead to such odd or absurd consequences that it is unlikely that those drafting the relevant regulations intended them to be interpreted as the Claimant submits should be done. On the Claimant's analysis, the provision of substantive information in response to a concern raised by a third party must be the subject of a notice in a local newspaper. Each time that occurs, the Council must suspend determination of an application for 21 days to allow time for further comment on the information provided. There are likely to be many occasions when additional information is provided in response to points raised. On the Claimant's case, there must be a publication in a local newspaper of the fact that that information has been provided and a suspension of the determination of the application each time. Furthermore, if a person were opposed to a planning application, there would be ample opportunity to raise a point, receive a response from the application for planning permission and then claim that that was substantive information provided by the applicant which required publication and a suspension of determination. In my judgment, the regulations were not intended to produce such results. That is neither required by, nor in my judgment, consistent with effective public participation, in environmental decision making.”

(Emphasis supplied)

Although counsel agreed that there was a radical difference of approach in these two cases, I am not necessarily sure that there was: on one view, each judge was simply deciding a question of fact as to whether the particular document under consideration was or was not substantive information, against the background of the particular case before him. But if I am wrong about that and there is a conflict, I prefer Lewis J’s analysis because it comes at the end of a lengthy consideration of the relevant Regulations.

Moreover, I am in no doubt that the information in the present case is precisely caught by the reasoning in paragraph 71 of Lewis J’s judgment, to the effect that “any other information” cannot include comments on or responses to concerns or points raised by third parties. That is what the July and August information was: it was information addressing points raised. In addition, the absurd consequences noted in paragraph 75 of the judgment of Lewis J would also apply here.

I find that the July and August information was provided by Brown in answer to the points made by Mr Wallis and other objectors. I do not accept that these comments contained substantive information relating to the Environmental Statement. Neither was this information new or not otherwise available: in many ways it was simply reordering and reemphasising some of the material in the planning application suite of documents. In addition, the precise features of the ESA testing protocol were a matter of fact and could have been discovered by anybody.

Accordingly, I do not consider that the fact that the July and August 2015 information was not the subject of the full publication regime, and was not therefore formally consulted on, was a breach of the relevant Regulations.

However, if I was wrong about that, then I am in no doubt at all that, as a matter of discretion, any breach has had no effect whatsoever. First, this information was uploaded to VoG’s website, so it was information that was available to the claimant and others. Secondly, it was information which was the subject of response. I have referred at paragraphs 18 and 21 above to Mr Wallis’ email responses of 24 August 2015 and 2 September 2015. They were responding to, first, the July information and second, the August information. So prejudice, let alone substantial prejudice, as a result of any technical breach has simply not been made out.

On this issue, Counsel were agreed that the relevant test is that set out in R (Champion) v North Norfolk District Council [2015] 1 WLR 3710. The relevant part of the speech of Lord Carnwath can be found at paragraphs 54-58. The test is set out at paragraph 58:

“Allowing for the differences in the issues raised by the national law in that case (including the issue of burden of proof), I find nothing in this passage inconsistent with the approach of this court in Walton. It leaves it open to the court to take the view, by relying "on the evidence provided by the developer or the competent authorities and, more generally, on the case-file documents submitted to that court" that the contested decision "would not have been different without the procedural defect invoked by that applicant". In making that assessment it should take account of "the seriousness of the defect invoked" and the extent to which it has deprived the public concerned of the guarantees designed to allow access to information and participation in decision-making in accordance with the objectives of the EIA Directive.”

Applying that test, I am confident that the contested decision would not have been different if the July and August information had been the subject of the full publicity and consultation regime. The defect, if that is what it was, was not serious (because the material was the subject of responses in any event) and the extent to which the public has been deprived of responding is very limited, given that the information was on the VoG website in any event. Furthermore, the information was neither significant nor new.

For all those reasons, I find that Ground 3 is not made out.

GROUND 4: VARIOUS FAILURES IN RESPECT OF THE HARMFUL EFFECT ON THE CADOXTON PONDS SNCI AND RELATED MATTERS

Ms Hutton submitted that the ecological assessment included with the application for planning permission did not consider the likelihood of dust reaching the SNCI, or the make-up of the dust, or the effect of the dust. Specifically, she complained that the reference to the site being 50 metres away was erroneous because the road with the lorries going to the site passed adjacent to the SNCI. She also criticised table 4 in the dust assessment and said there was no proper assessment of the relevant risks.

I am no doubt at all that this ground is a blatant attempt to reargue the merits of the planning application. It is contrary to the principles set out in Section 5.1 above. In my view, there is nothing in Ground 4 at all.

First, I consider that the criticism of the Ecological Assessment is misconceived, because it studiously ignores the detail within the Dust Assessment. The two documents have to be read together. There can be no doubt that the Dust Assessment (referred to at paragraphs 11-14 above) contains a considerable amount of detail in relation to the possible consequences of dust blowing beyond the confines of the site, and specifically considered the effect on the SNCI. The conclusion was that there would be no or only minimal adverse effect. In the absence of any alternative Dust Assessment, that is the end of the point.

The criticism of table 4 cannot sensibly sustain an allegation of irrationality. It is a matter of detail. But for what it is worth, I consider that all of that section of the Dust Assessment, including table 4, comprised a detailed and proper consideration of the possible effect on the SNCI. There is nothing in the roads points, since all the lorries were to be covered.

More importantly, I remind myself that the VoG’s ecology officer had no criticisms to make of any of the information and had concluded in her response to the consultation that there was no ecological consequence of the application for planning permission. In those circumstances, it might be thought that any other view would have been perverse. For these reasons, Ground 4 is rejected.

GROUND 5: DUST EMISSIONS FROM THE VIRIDOR SITE AND PAST EMISSIONS FROM THIS SITE

The first point here is the allegation that the committee failed to take into account the points made by Mr Wallis in his late email of 2 September 2015 about the Viridor site. That is wrong on the facts. The evidence makes plain that this email was provided to the committee for the purposes of the decision-making process. As Mr Hercock rightly said, what weight they gave it was a matter for them.

More widely, the Officer’s Report focused on this site and the particular activities referable to this site. In my view that was appropriate: see paragraphs 7-8 above. It is only if some specific parallel with another site can be drawn that the decision-maker is required even to consider other sites. There is nothing in the material provided by Mr Wallis in his email of 2 September to demonstrate that there was any specific correlation between the proposed use of this site and the ongoing use of Trident Park/Lamby Way. So even on the merits, I consider this ground to be unarguable.

The other point is that Mr Wallis’ late email of 2 September 2015 referred to dust generated by previous activities on this site in Barry. Again this material was provided to the committee so again it cannot be said that it was material that they did not take into account. But I am bound to say that, for my part, I cannot see that this information had any relevance to the decision whatsoever. What mattered was this proposal, not the past use of this site as, for example, a scrapyard.

For these reasons, Ground 5 of the application is rejected. I conclude that it is again an attempt to reargue the merits, contrary to the principles in Section 5.1 above.

CONCLUSIONS

For the reasons that I have given, this application for judicial review must fail. Grounds 1, 2 and 6 raised a categorisation issue which, on analysis, and by reference in particular to the permit and NRW’s regulatory responsibilities, must fail. Grounds 3, 4 and 5 amount to an attempt to reargue the merits of the decision and are without foundation.

Finally I should say this. Although the permit granted by NRW is extremely important, because of the situation that existed at the time that the planning decision was made on 4 September 2015, I understand that Brown have recently indicated that they are not going to operate the proposed recycling facility at the site. That means that, at some point in the future, another operator may apply to NRW for a permit in similar terms to that granted to Brown.

As and when that happens, it will be appropriate for NRW to consider the points that I have made in Sections 7 and 8 above. It seems to me plain that this site can only handle, store and process non-hazardous IBA. It will be for NRW to ensure that, as and when any new permit is under consideration, there is an effective sampling/assessment regime which ensures that that is what happens.