UBB Waste Essex Ltd v Essex County Council

This case concerns the lawfulness of the grant by the Defendant of a “CLOPUD”( a certificate of lawfulness for a proposed use or development), under s.192 of the Town and Country Planning Act 1990. The Claimant seeks to challenge the said grant by the Defendant, acting as the Waste Planning Authority (WPA). This case is replete with acronyms, so a glossary is appended at the end of the judgment.

The application was considered by Mr Justice Holgate on the papers and he ordered a

“rolled up” hearing. The Defendant is taking proceedings against the Claimant in the Technology and Construction Court concerning the waste contract between the parties dated 31 March 2012. That case is part heard before Mr Justice Pepperall and the order of Mr Justice Holgate suggests that Pepperall J may be assisted by a judgment of the Planning Court on the case before me.

The CLOPUD, dated 12 February 2019, certifies the lawfulness of;

“the importation and treatment at Tovi Eco Park MBT Facility of up to 30,000 tonnes per annum of source-segregated green garden waste from Essex Household Waste Recycling Centres, as described in the application form dated 7 December 2018…”

The critical phrase in the certificate is “source segregated green garden waste”, which is referred to elsewhere as SSGGW. The case only concerns SSGGW from Household

The site in question is the Tovi Eco Park, at Courtauld Road, Basildon Essex. The

Pursuant to the various statutory regimes, the Defendant is the Waste Planning

Although a number of grounds were pleaded, the case comes down to one issue, did the Defendant err in law in its grant of the CLOPUD, by reason of misinterpreting the terms of the 2012 planning permission. The matter turns on whether SSGGW from HWRCs is permitted under the planning permission to be processed at the facility. This in turn depends on whether SSGGW from HWRCs is excluded from the site by the terms of the permission. The Defendant’s case is that although garden waste directly from householders would not be permitted, because it is not “residual” household waste, the same is not true for green waste coming from a Household Waste Recycling Centre (HWRC) because there is no restriction within the permission for that to be “residual” waste.

It is therefore necessary to consider in detail the precise scope of the planning permission, including what is set out in the documents incorporated by reference into the permission.

The 2012 Planning Permission is for:

The Planning Permission is subject to 32 conditions. Conditions 2, 3 and 21 are the most relevant to this application for judicial review.

Condition 2 of the Planning Permission states:

Condition 2 therefore limits the use of the site to the details set out in the documents listed which include the Planning Statement (PS); the Environmental Statement (ES) ; the Environmental Non-Technical Statement (NTS). Each of the parties rely on various parts of these documents, which I will refer to below.

Condition 3 requires the developer to submit a detailed scheme for the restriction of the importation of waste from outside the named authorities and for that scheme to be agreed before any waste could be brought on to the site. The scheme which was approved dealt not only with how the waste was to be monitored and managed but also its anticipated composition;

Given the terms of condition 2 both parties accept that the PS, ES and NTS fall to be considered when interpreting the planning permission. The Claimant in particular relies on a large series of references within these documents, and I will only set out below what I consider to be the most important ones. The Defendant accepts that within all three documents there are very many references to “residual waste”, and it is therefore unnecessary to set all of these out. The Defendant’s position is that those references do not limit HWRC waste to being “residual waste”.

The PS at section 1.2 [1/13/493] under the heading “The proposal” states that the

“proposal… will satisfy the residual municipal wastemanagement needs of Essex County Council and Southend on Sea Borough Council … The Facility is capable of treating up to 416, 955 tonnes per annum (tpa) of residual waste, but with a smaller proportion of locally derived commercial and industrial (C&I) (third party) waste … The technology consists of: Pre-processing – sorting raw residual waste and extracting recyclables such as plastic and metals for beneficial use …” [emphasis added]

The PS at section 1.3 [1/13/494] under the heading “The Benefits” states that

“The need for the proposed Facility has been considered in the context of a number of strategic policy documents and drivers.

This has demonstrated a clear need for the development. The justification for this need can be summarised as follows: …

The Facility would help meet the capacity gap in residual waste treatment within Essex and Southend (see section 8 for the Assessment of Need).”

The PS at section 1.4 [1/13/495] under “Conclusions” states

“The proposal provides a sustainable solution to the management of residual waste streams within the administrative areas of Essex and Southend of Sea … The proposal fully accords with all relevant policies of the Development Plan and a range of other material considerations …”.

Section 5.0 of the PS is entitled “Description of Development”. At section 5.1 under the heading “Introduction” itstates [1/13/501]:

“The Facility will have the capacity to treat up to 416,955 tpaof waste. This will include Waste Collection Authority (WCA) residual waste, trade waste, bulky waste, street sweepings and waste from Household Waste RecyclingCentres. The facility will also have the capacity to receive a smaller proportion of locally derived C & I [Commercial and Industrial] wastes.

…..

In broad terms the pre-processing stage will allow for the recovery of high levels of recyclable material from the residual waste streamwith the remaining (largely organic) fraction being passed through the bio stabilisation phase” [emphasis added]

The Defendant argues that the waste which is “defined” for the purpose of condition 2 is that set out in section 5.1 of the PS, which includes “waste from Household Waste Recycling Centres” not limited to “residual waste”.

PS 5.2 [1/13/502] under the subheading “Authority Requirements" then states:

“Primarily the design of the Facility has focused on meeting the waste management requirements of Essex County Council Essex and Southend-on-Sea Borough Council as Waste Disposal Authorities. Through the design of the Facility UBB has ensured that the Authorities future predicted waste generation will be treated through a process which is flexible with regards to waste tonnage, seasonal fluctuations and potential future changes in waste composition. The facility has been designed in orderto meet the Authorities requirements to manage approximately 377,000 tpa of Authority residual waste plus additional third-party C&I waste, providing a total maximum capacity up to 416, 955 tpa. [emphasis added]

The Environmental Statement Volume 1 sets out

“1.5.1

Waste management

The majority of waste streams which will be accepted at the Facility are managed by the 12 District and Borough Councils as Waste Collection Authorities (WCAs), Southend-On-Sea Borough Council as a Unitary Authority (Waste Collection and Disposal Authority) and Essex County Council as Waste Disposal Authority (WDA).

These 14 Authorities make up the Essex Waste Partnership (EWP). The Essex Waste Partnership was formed in order to ensure cost-efficient and sustainable waste management is delivered across the country. In order to manage the municipal waste arisings from the Partnership area, a network of waste facilities is required. The MBT Facility at Courtauld Road is proposed as the main treatment centre and would be supported by five satellite waste transfer stations, together with a separatefacility to treat source segregated organic waste. A more detailed assessment of needs is provided within Chapter 4 of this ES.” [emphasis added]

The Defendant says that this reference to a facility to treat source segregated organic waste is merely a future intention and does not affect the waste that was permitted to be treated at the facility.

Chapter 4 of the ES deals with need for the facility, and at paragraph 4.3 (2/15/869873) under ‘Needs Assessment’ there is a review of waste policy in England 2011. As part of that review, it refers to the “Essex Joint Municipal Waste Management

Chapter 5 of the ES is the Traffic and Transportation section which at para 5.1 states;

“it should be noted that the existing planning permission relates to a wider site than the current application and contained processing capacity to deal with the residual waste as well as the food and green waste (biowaste). This Biowaste element of waste will not be managed via the proposed development and will require treatment in another facility”.

Chapter 5 of the ES then goes on to consider the potential cumulative impacts of a bio-waste facility being developed on the adjoining land.

The NTS under “Assessment of potential environmental effects” states;

“The existing planning permission for the site was for a larger waste treatment facility that could process a variety of waste streams including food and garden waste – known as biowaste.The proposed development does not contain proposals to dealwith this waste stream and so the council will need to find analternative site for this treatment facility. There is a potential site on the vacant land to the west of this facility and given the two sites are closely located the assessments have considered this development as well. This particularly true of the traffic assessment.” [emphasis added]

The Claimant also refers to the policies which are themselves referred to in the reasons for condition 21. The most relevant policies for these purposes are W3A and

This a judicial review of a decision by the Defendant under s.192 of the TCPA.

Given that a certificate under s.192 amounts to a decision on the lawfulness of a

There is extensive case law on the correct approach to the interpretation of planning permissions including the conditions attached to them. The first issue is in what circumstances reliance can be placed on material outside the words of the permission itself. This was dealt with comprehensively by Keene J (as he then was) in R vAshford BC ex p Shepway DC [1999] PLCR 12, a decision which has frequently been cited with approval since. Keene J said as follows at p.19C;

“The legal principles applicable to the use of other documents to construe a planning permission are not really in dispute in these proceedings. It is nonetheless necessary to summarise them:

(1)

The general rule is that in construing a planning permission which is clear, unambiguous and valid on its face, regard may only be had to the planning permission itself, including the conditions (if any) on it and the express reasons for those conditions: see Slough Borough Council v. Secretary of State for the Environment (1995) J.P.L. 1128 , and MillerMead v. Minister of Housing and Local Government [1963] 2 Q.B. 196 .

(2)

This rule excludes reference to the planning application as well as to other extrinsic evidence, unless the planning permission incorporates the application by reference. In that situation the application is treated as having become part of the permission. The reason for normally not having regard to the application is that the public should be able to rely on a document which is plain on its face without having to consider whether there is any discrepancy between the permission and the application: see Slough Borough Council v. Secretary of State (ante); Wilson v. West Sussex County Council [1963] 2 Q.B. 764; and Slough Estates Limited v. Slough Borough Council [1971] A.C. 958 .

(3)

For incorporation of the application in the permission to be achieved, more is required than a mere reference to the application on the face of the permission. While there is no magic formula, some words sufficient to inform a reasonable reader that the application forms part of the permission are needed, such as “… in accordance with the plans and application …” or “… on the terms of the application …,” and in either case those words appearing in the operative part of the permission dealing with the development and the terms in which permission is granted. These words need to govern the description of the development permitted: see Wilson (ante); Slough Borough Council v. Secretary of State for the Environment (ante). *20

(4)

If there is an ambiguity in the wording of the permission, it is permissible to look at extrinsic material, including the application, to resolve that ambiguity: see Staffordshire Moorlands District Council v. Cartwright (1992) J.P.L. 138 at 139; Slough Estates Limited v. Slough Borough Council (ante); Creighton Estates Limited v. London County Council, The Times, March 20, 1958.

(5)

If a planning permission is challenged on the ground of absence of authority or mistake, it is permissible to look at extrinsic evidence to resolve that issue: see Slough Borough Council v. Secretary of State (ante); Co-operative Retail Services v. Taff-Ely Borough Council (1979) 39 P. & C.R. 223 affirmed (1981) 42 P. & C.R. 1.”

There are two recent Supreme Court decisions which deal with the interpretation of permissions. It is worth noting that in neither case did the issue turn on the incorporation or content of extrinsic material, so the particular issue in this case as to how to approach a very large amount of incorporated documentation, did not arise. In Trump International Golf Course v Scottish Ministers [2016] 1 WLR 85, the Supreme

The relevant argument was that condition 14 of the consent was void for uncertainty because it required the submission of a design statement, but did not require that statement to be approved or implemented. The Court held that other conditions in practice overcame the failings in condition 14 and therefore Lord Hodge and Lord Carnwath’s comments on the approach to the interpretation of condition 14 were

The leading judgment was given by Lord Hodge and his analysis of the interpretation issue is at [31] to [37]. The whole of these passages are relevant but I only set out [34];

“34.

When the court is concerned with the interpretation of words in a condition in a public document such as a section 36consent, it asks itself what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole. This is an objective exercise in which the court will have regard to the natural and ordinary meaning of the relevant words, the overall purpose of the consent, any other conditions which cast light on the purpose of the relevant words, and common sense. Whether the court may also look at other documents that are connected with the application for the consent or are referred to in the consent will depend on the circumstances of the case, in particular the wording of the document that it is interpreting. Other documents may be relevant if they are incorporated into the consent by reference (as in condition 7 set out in para 38 below) or there is an ambiguity in the consent, which can be resolved, for example, by considering the application for consent.”

Lord Hodge concluded in [37] that if he had needed to, then applying the approach set out, he would have inferred that the condition required the developer to conform with the design statement submitted. Lord Mance warned against too rigid an approach in considering interpretation of a contract or permission, or implication of terms into it. They are both part of “an overall, and potentially iterative, process of objective construction of the contract as a whole.”

Lord Carnwath gave a separate judgment to which the other members of the Court did not expressly agree. However, in Lambeth, Lord Carnwath referred extensively to his judgment in Trump and the other members of the Court did there agree with his judgment. It therefore follows that Lord Carnwath’s reasoning in Trumphas now been adopted by the Court.

Lord Carnwath analysed the earlier caselaw in some detail. At [53] he warned against attempts to establish general principles, as Beatson LJ and Elias LJ had sought to do in Hulme-v- Secretary of State for Communities and Local Government [2011] EWCACiv 63 and Telfordand Wrekin Council v Secretary of State for Communities and

In the subsequent case of Lambeth the local authority had granted a permission in 1985 for a DIY store and garden centre with a condition that prevented the sale of food. In 2014 Lambeth granted permission under s.73 TCPA for a variation of conditions, but the conditions expressly attached did not repeat the non-food condition. It was plain from the words of the decision notice that Lambeth had intended to continue the non-food restriction but the Court of Appeal held that the 2014 permission did not contain such a restriction, and it was wrong as a matter of law to read an entire condition into the permission.

However, the Supreme Court allowed the appeal. Lord Carnwath set out the principles of interpretation at [15] to [19] largely extracting these from his and Lord Hodge’s judgments in Trump. At [19] he said;

“In summary, whatever the legal character of the document in question, the starting-point - and usually the end-point - is to find "the natural and ordinary meaning" of the words there used, viewed in their particular context (statutory or otherwise) and in the light of common sense.”

Lord Carnwath found on the facts of the case that the wording of the operative part of the grant of permission was clear and unambiguous, and therefore that Lambeth had approved the “proposed condition”, as set out in the Decision Notice and had not intended to discharge the non-food condition.

Mr Strachan’s submissions on ground one can be broken down into four sub-headings which interact with each other. Firstly, he says that the waste materials allowed onto the site under condition 21 are expressly defined in the application documents as being “residual waste”. He refers to paragraphs 5.1 and 5.2 of the Planning

In response to Mr Sharland’s construction argument, that para 5.1 of the PS “defines” the waste categories permitted, he points to the fact that the description of development in the permission itself is for a “Mechanical and Biological Treatment (MBT) plant…” and an MBT is defined in the Glossary to the PS as “MBT is a residual waste treatment process that involves both mechanical and biological treatment processes”. He therefore argues that it is the very nature of the facility as described in the permission that it is for the processing of “residual waste”.

Secondly, he relies on the exclusion of source segregated green waste from the facility, again by reference to the PS, ES and NTS. These references are somewhat more equivocal than those relied on for his first submission. However, ES Volume I pages 18-19 as referred to above, refers to “a separate facility to treat source segregated organic waste”; and the references in the ES to policy in the Essex JMWMS to favouring composting for source segregated organic waste.

He also relies on the passages in the NTS as set out above, which refers to bio-waste (food and garden waste) being dealt with at an alternative site. Mr Sharland says that this is no more than a statement of intention.

Thirdly, Mr Strachan argues that it is necessary to take a composite approach applying common sense, by looking at all the relevant material together. He argues that the overall purpose of the condition was to exclude residual waste from treatment at the facility, because that waste should be dealt with further up the Waste Hierarchy. He relies on the terms of the policies expressly referred to in the reasons for condition 21, and the references to the Waste Hierarchy in those policies.

Fourthly, he argues that there is a European law dimension to the case. There are two aspects to this. He relied on the Waste Framework Directive, and the requirement therein to treat waste in accordance with the Waste Hierarchy. He also relied on the EIA Directive, and argued that SSGGW had not been assessed as going into the facility, and therefore either there would be a breach of the Directive/Regulations if SSGGW could be treated at the facility; or that the permission should be interpreted in such a way as to conform with the EIA Directive in accordance with the Marleasing principle.

Mr Strachan also relies on the delegated officer’s report which led to the grant of the CLOPUD. This obviously cannot be used to interpret the planning permission, but it does show that the officers of the WPA agreed with many of the points made by the

Mr Strachan did not seek to proceed on grounds 2, 3 and 4.

Ground 5 is that the Defendant should not have granted the certificate without having considered environmental information in accordance with the EIA Regulations. He drew an analogy with Barker v London Borough of Bromley 2007 1 AC 470 where the CJEU found that the grant of reserved matters was the grant of development consent for the purposes of the EIA Directive, and should have been subject to a separate EIA process. I found it difficult to understand ground 5 as a free-standing ground separate from ground 1. The argument seemed to be that if the Claimant lost on ground one, so the certificate was not contrary to the proper interpretation of condition 21 and SSGGW was allowed into the facility under the permission, then because significant environmental effects were likely to follow which had not been assessed in the ES, then such an assessment had to be carried out as part of the CLOPUD. However, if that were correct and a CLOPUD could lawfully be granted in circumstances where the consequence was a likely significant environmental affect which had not been assessed, then it seems to me either (a) the CLOPUD should not have been granted (i.e. ground one succeeds); or (b) the original planning permission would have been flawed.

Mr Strachan refers to the fact that the Defendant when it applied for the CLOPUD (in its capacity as WDA) submitted a report by Ricardo (a consultancy firm) assessing the air quality and traffic impact of the CLOPUD. This is a somewhat odd document because it must have been the Defendant’s case that the certificate was not seeking to allow an activity that was not already permitted. It is therefore not clear what the legal justification for the Ricardo work was. However, ultimately, I do not need to decide whether ground five does raise a free standing ground, as I find that ground one is made out.

Mr Sharland’s argument had the benefit of simplicity. He said that neither the words of the permission nor any of the conditions exclude SSGGW from HWRCs. He agreed that SSGGW from kerbside collections could not be accepted at the facility, but said the documentation specifically did not attach the word “residual” to waste from the HWRCs. He argued that for the purposes of condition 21 the permissible waste materials “are defined” in paragraph 5.1 of the Planning Statement, which limits WCA waste to “residual waste”, but does not limit HWRC to residual waste.

He makes a similar point in respect of para 1.3 of the ES, saying that the first part of the paragraph “the facility will provide the waste management solution for residual waste treatment…” is not part of the definition, but the second part which is in the same form as para 5.1 of the PS, is part of the definition. He argues that the documentation does not exclude all non-residual waste, and points out that the waste allowed under the CLOPUD at 30,000 tpa is only a small proportion of the total input of the facility, (417,000tpa, or the WDA element 377,000 tpa).

Mr Sharland argues that the Claimant’s analysis involves trawling through 100s of pages of the documentation to find “scattered sentences” that support his case. He argues that this was not the right approach, and the sensible construction was the one that relied on para 5.1 of the PS, and the precise words that were set out.

To the degree that it was relied upon he said that the condition 3 scheme was solely in relation to the geographical source of the waste and was irrelevant to the construction of the permission.

In relation to the Waste Hierarchy, he accepted that sending SSGGW from the HWRC to the facility was not in accordance with the Waste Hierarchy, because that waste could be composted and therefore disposed of further up the hierarchy, however he argued that the quantum of such waste was a sufficiently small percentage as not to effect the overall judgment that the proposal accorded with the Hierarchy. He made a similar argument in relation to the assessment of the SSGGW. He accepted that this waste stream had not been expressly assessed in the ES, but said that it was sufficiently small as for that not to be necessary.

In the light of Lord Carnwath’s strictures in [53] of Lambeth I hesitate to set out any principles on the approach to the interpretation of planning permissions and their conditions. However, the following are factors which I have applied to the issues that arise in this case. It needs to be emphasised that these factors will not arise in all cases, and that much will depend on whether the permission or a specific section of the incorporated documents gives a clear cut answer.

Firstly, permissions should be interpreted as by a reasonable reader with some knowledge of planning law and the matter in question. This does not mean that they are the “informed reader” of a decision letter, but equally the reasonable reader will understand the role of the permission, conditions and any incorporated documents.

As Lord Carnwath has said the permission needs to be interpreted with common sense. Mr Sharland points out with some justification that reasonable people may differ on what amounts to common sense. In my view references to common sense are really pointing to the planning purpose of the permission or condition. If the interpretation advanced flies in the face of the purpose of the condition, and the policies underlying it, then common sense may well indicate that that interpretation is not correct. So, in Lambeth it was plainly contrary to that purpose for the permission not to limit the sale of food items, such an interpretation was contrary to common sense once one understood the planning background.

Secondly, it is legitimate to consider the planning “purpose” or intention of the permission, where this is reflected in the reasons for the conditions and/or the documents incorporated. The reasons for the condition should be the starting point, the policies referred to and then the documents incorporated. This is not the private intentions of the parties, as would be the case in a contractual dispute, but the planning purpose which lies behind the condition.

Thirdly, where as here, there are documents incorporated into the permission or the conditions by reference, then a holistic view has to be taken, having regard to the relevant parts of those documents. This can be a difficult exercise because where, as here, the permission incorporates the application (including the Planning Statement) and the Environmental Statement and Non-Technical Summary, there can be a very large number of documents to be considered. It may be the case that those documents are not all wholly consistent, and that there may be some ambiguity within at least parts of them. In my view the correct approach is to take an overview of the documents, to try to understand the nature of the development and the planning purpose that was sought to be achieved by the condition in question. The reasonable reader would be trying to understand the nature of the development and any conditions imposed upon it. It is not appropriate to focus on one particular sentence without seeing its context, unless that sentence is so unequivocal as give a clear-cut answer.

Fourthly, where documents are incorporated into the permission, as here, plainly regard can be had to them. Where the documents sought to be relied upon are

“extrinsic”, then save perhaps for exceptional circumstances, they can only be relied upon if there is ambiguity in the condition. In my view, even where there is ambiguity there is a difference between documents that are in the public domain, and easily accessible such as the officer’s report that led to the grant of the permission and private documents passing between the parties or their agents.

The Court should be extremely slow to consider the intention alleged to be behind the condition from documents which are not incorporated and particularly if they are not in the public domain. This is for three reasons. The determination of planning applications is a public process which is required to be transparent. Any reliance on documents passing between the developer and the LPA, even if they ultimately end up

Applying that approach to the facts of this case, in my view the CLOPUD was not lawfully made in the light of the terms of the planning permission. The planning permission, and condition 21 when properly understood did seek to exclude SSGGW from HWRCs from being processed at the facility, and the Defendant’s interpretation of the permission is plainly contrary to the policies relied upon in the reasons for condition 21.

The starting point is the very words of the permission itself “facility for the mechanical and biological treatment (MBT) of municipal solid waste...”. Mechanical

There are copious references in the PS, ES and NTS to the processing at the facility of

“residual waste”. Of course, that does not mean that all waste that goes to the facility must be incapable of being composted/recycled, or that no green waste will go there. But in deciding the meaning of condition 21 taking a holistic view of the incorporated documents it is highly relevant that the focus is entirely on residual waste.

Further the Defendant’s interpretation leads to a very odd result. On Mr Sharland’s approach all waste from the HWRC could under the planning permission be taken to the facility. This would undermine both the function of the HWRC and the very obvious understanding of the public that it is a recycling centre. So, on the

Mr Sharland argues that the SSGGW from the HWRCs is only a small proportion of the total waste going into the facility (some 8%). However, he does not suggest that 30,000 of green waste is de minimis, and in those circumstances, I would have expected that if it had been contemplated at the time of the permission that that waste would go to the facility it would have been assessed in the ES and referred to in the officer’s report.

In my view there is no ambiguity in the permission, but if I am wrong on that and therefore pursuant to Shepway it is appropriate to consider the 2012 officer’s report, the fact that that report said the proposal was fully compliant with policy indicates strongly that it assumed that all the waste going there would be “residual waste”.

The Defendant’s argument involves taking the sentence in para 5.1 of the PS, and the equivalent sentence in the ES, and then applying what is in my view an overly legalistic approach. Mr Sharland focuses on the absence of the word “residual” before HWRC waste, and effectively argues that this is the end of the case. But the PS and ES are not documents drafted by or for lawyers, and it is not appropriate to construe them like contracts. In my view any reasonable reader would reach the conclusion that the permission was for a facility for the processing of residual waste, and that applied as much to HWRC waste as household waste.

In respect of Mr Strachan’s fourth element of ground one, which then reappears in the fifth ground, that the Defendant’s approach is a breach of the EIA Regulations I do not need to make a determination on this. I agree with Mr Strachan that if the application had intended to allow the processing of 30,000 tpa of SSGGW then the ES would have assessed that, and that is a significant pointer to the Defendant’s interpretation being wrong. I do not need to go on to determine whether it would have amounted to a free-standing error of law.

For these reasons, I grant permission for judicial review on ground one, and quash the certificate.