Lack of planning permission proves costly

R (on the application of Berry and Marshall (Bolton Wood) Ltd) v Secretary of State for Environment, Food and Rural Affairs

Quarry owner Berry and Marshall (Bolton Wood) Ltd (B&M) applied for a judicial review of an Inspector’sdecision which upheld the Environment Agency (EA)’s decision to refuse to grant a permit to dispose of inert waste at the quarry. The application failed.

Regulation 10(4)(b) of the Pollution Prevention and Control (England and Wales) Regulations 2000 confirms that any such application would be refused unless the EA was satisfied that:

  • the applicant was a fit and proper person to carry out that activity
  • in the case of an installation where the use of the application site requires planning permission under the Town and Country Planning Act 1990, such planning permission is in force in relation to that use of the land.

B&M accepted that it did not have an expressplanning permission in relation to the quarry, but argued that the necessary permission existed by virtue of historic general development orders. In the High Court, B&M argued that, in determining the appeal, the Inspector had failed to deal with its submission that it had the necessary planning permission. The Judge decided that the reasons provided by the Inspector were inadequate and it was not possible for B&M to understand the rationale behind the decision. However, the Judge went on to say that, as the claim was a ‘reasons challenge’, B&M would only succeed if it could show that it had genuinely been substantially prejudiced by the failure to provide adequate reasons.

Essentially, B&M was applying for a permit for the whole area contained in a waste disposal licence granted in 1983. As there was no express grant of planning consent, it was required to show that there was a deemed consent for the deposit of waste on the whole of the site.

Historically, each individual deposit of waste was granted planning consent by the general development orders in existence at the time. However, the position changed as a result of the Town and Country Planning General Development Order 1988, which came into force on 5th December 1988 and revoked the general grant of planning consent previously enjoyed, without any saving provision. It followed that any fresh deposit of waste which extended either the superficial area of the deposit or the height of the deposit above that of the adjoining land required an express grant of planning consent.

B&M had to show that, before 5th December 1988, it had deposited waste on the whole of the site, otherwise there would be no extant permission for those areas which extended the tipping areas. The Inspector found that there had been limited tipping after 1983 and, therefore, B&M had not established that it had deposited waste on the whole of the site as at 5th December 1988. It followed that there was no extant permission for the whole of the site and B&M was unable to establish the necessary prejudice for the ‘reasons challenge’ to succeed.

This case highlights the difficulty faced in challengingan Inspector’s decision in the High Court, where the grounds of challenge are limited to legal points only. In any event, even if the judicial review were to succeed and the Inspector’s decision be quashed, the case would be remitted for re-determination, and there is no guarantee that the Inspector would come to a different conclusion.

For advice or more information, contact Alex Madden.

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