Neutral Citation Number: [2014] EWHC 836 (Admin)
Case No: CO/1070/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Cardiff Civil Justice Centre
2 Park Street, Cardiff, CF101ET
Date: 27/03/2014
Before:
MR JUSTICE WYN WILLIAMS
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Between:
PAULINE ELLAWAY Claimant
- and –
CARDIFF COUNTY COUNCIL Defendant
- and –
(1) VIRIDOR WASTE MANAGEMENT LTD
(2) PGM ESTATES LTD
(3) THE WELSH MINISTERS
(4) ENVIRONMENT AGENCY FOR WALES
(5) COUNTRYSIDE COUNCIL FOR WALES
Interested Parties
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Alex Goodman (instructed by Richard Buxton) for the Claimant
Simon Bird QC (instructed by Legal Services Dept) for the Defendant
David Elvin QC (instructed by Bevan Brittan LLP) for the First Interested Party
The other Interested Parties did not appear and were not represented
Hearing dates: 17 December 2014
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Approved Judgment
Mr Justice Wyn Williams:
Judgment Approved by the court for handing down. / Ellaway v Cardiff County CouncilIntroduction
1. The First Defendant is the local planning authority for the city of Cardiff. On 29 June 2010 it granted planning permission to the First Interested Party (hereinafter referred to as “Viridor”) for the erection of “an energy from waste facility to include a combined heat and power plant, pre-treatment/recycling facility, incinerator bottom ash recycling and ancillary offices” upon an area of land (hereinafter known as “the site”) at Trident Park, Glass Avenue, off Ocean Way in the city of Cardiff. The permission specified that the development was to be carried out on site in accordance with the application and accompanying plans “subject to compliance with the conditions specified hereunder”. Twenty five conditions were then listed. Conditions 2, 3, 4, 7, 10, 11, 12, 13, 14, 15, 17, 19, 20, 21 and 24 were “pre-commencement conditions” i.e. they required that compliance with the conditions should take place before any development was commenced on the site. Condition 1 provided that the permitted development should begin “before the expiration of five years from the date of [the] planning permission”.
2. The grant of planning permission had been opposed by the Claimant and an organisation known as “Cardiff Against the Incinerator” (hereinafter referred to as “CATI”). However, neither the Claimant nor CATI sought to impugn the grant of planning permission following its grant.
3. On 20 July 2012 Viridor commenced development on the site. It is not disputed that by then it had applied for the discharge of all the pre-commencement conditions and that the Defendant had purported to discharge all but one of those conditions. In the months that followed 20 July 2012 Viridor continued to undertake works on site; in the same period CATI made representations to the Defendant to the effect that Viridor was acting unlawfully and that appropriate enforcement action should be taken.
4. On 13 February 2013 the Planning Committee of the Defendant resolved against taking enforcement action; it also resolved to discharge the pre-commencement conditions. The Committee took that decision on the basis of a detailed report prepared by planning officers (hereinafter referred to as “the officer’s report”) - see Trial Bundle Volume 2, pages 1175 to 1207. In these proceedings the Claimant asserts that the decisions taken by the Defendant on 13 February 2013 were unlawful and she seeks quashing orders in respect of them.
The relevant facts in more detail
5. Viridor is a commercial organisation which engages in waste management. In or about 2007 it concluded that the site was suitable for the development of an “energy from waste” facility. In November 2008 Viridor submitted a planning application for such a development but in August 2009 the Defendant refused the application.
6. Viridor appealed against that refusal of planning permission. However, in February 2010 (before the appeal had been determined) it submitted a revised planning application to the Defendant. It was this application which was approved by the Defendant on 29 June 2010. Upon receipt of the planning permission Viridor withdrew its appeal against the earlier refusal of permission.
7. Over the course of two years, approximately, following the grant of planning permission, Viridor applied for the discharge of the pre-commencement conditions. A detailed chronology of the steps which it took is to be found in the officer’s report for the meeting of the Defendant’s Planning Committee on 13 February 2013. Between 19 December 2011 and 4 July 2012 the Defendant issued decision letters discharging or partially discharging all of the pre-commencement conditions except condition 4. The Defendant’s summary grounds for resisting the claim contains a table in which the dates of the various applications for discharge of conditions are specified together with the date when the Defendant purported to discharge the particular condition (see Trial Bundle Volume 1 page 175). I do not set out the dates in this judgment since nothing turns upon them.
8. It is common ground that the Defendant acted unlawfully by discharging the conditions. In summary, the applications for discharge were “subsequent applications” for the purposes of Regulation 2 of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (hereinafter referred to as “the 1999 Regulations”). Before approving discharge of the conditions the Defendant was obliged to comply with and/or ensure compliance with Regulations 3(2) and 19 together with Schedule 4 of the 1999 Regulations. That it had not done prior to its approval of discharge of the conditions.
9. On 17 July 2012 the Defendant was advised that its purported discharge of the conditions was unlawful. On the same date the Defendant notified Viridor that the conditions had not been discharged validly. By that date, however, Viridor had entered into a contract or contracts for the carrying out of the construction work necessary for the development. This construction work commenced on 20 July 2012 and it has continued on site since that date.
10. Even before the commencement of the work, CATI had made representations to the Defendant that it should take enforcement action in the event that Viridor commenced the construction work before the pre-commencement conditions had been discharged lawfully. On 19 July 2012, CATI wrote to the Defendant saying:
“The Council has an obligation to ensure that Viridor meet the statutory requirements before they commence work. Viridor has notified you they intend to commence development on 20 July, yet all the preconditions have not been met and cannot be met by that date.
We therefore require you to take “strong and appropriate” action immediately, by instructing Viridor not to commence development on 20 July and not until the preconditions have been fulfilled under the EIA planning law.”
11. On 24 July 2012 the Defendant caused a notice to appear in the Western Mail, the national newspaper of Wales. The notice was expressed to be a notice pursuant to Regulation 19 of the 1999 Regulations. A number of notices in identical form were displayed in the locality of the site. The notice specified the proposed development, its location and the identity of the developer and continued:
“I give notice that the above applicant has made the following subsequent applications to Cardiff County Council as the relevant planning authority in respect of the discharge of the following conditions in order to carry out the above development for which planning was granted on 29 June 2010, which is accompanied by an Environmental Statement and which was granted subject to conditions after the completion of the section 106 agreement.
There then followed a table in which all the pre-commencement conditions
were set out together with the dates of the applications for discharge. The
notice continued:
“Further information is available in relation to the Environmental Statement which has already been provided.
You may inspect copies of the subsequent application, the plans, the Environment Statement, the further information or any other documents submitted with the subsequent applications (“the documents”) at the Council’s offices at Development Management, City Development, City Hall, Cardiff, CF10 3ND during normal office hours … Please quote the application reference number located at the top of the letter to reception staff. You will not necessarily be able to see a planning officer without an appointment.
…..
Please write to me within 21 days of the date of this letter if you have any comments about these subsequent applications that you wish the council to take into account before a decision is made. Please note that your letter will be open to public inspection. Due to time and resource constraints, planning officers are not able to acknowledge receipt of correspondence or to respond in writing to any comments or queries made. …”
12. The applications for discharge were due to be considered by the Defendant’s Planning Committee on 15 August 2012. By that date a number of letters of objection had been received from members of the public. On 14 August 2012 CATI sent detailed representations to the Defendant opposing discharge of the conditions. A report was prepared by officers for consideration by the Committee. In the event the applications for discharge were not considered by the Planning Committee on 15 August 2012. Officers concluded that consideration of the applications should be postponed while further investigations were undertaken.
13. In the months immediately following, there were a number of exchanges between CATI and the Defendant and the Defendant and other parties, including Viridor. As a consequence of representations received about the risk of flooding both at the site and in its vicinity the Defendant commissioned a report from Atkins Ltd which it received on or about 10 October 2012 together with a detailed covering letter. On 23 November 2012 SLR Consulting Limited, on behalf of Viridor, wrote a response in respect of a number of queries which had been raised by the Defendant in a letter of 2 November 2012. A number of the queries related to issues raised in the report obtained from Atkins Ltd. Under cover of the letter of 23 November SLR Consulting Ltd provided a document entitled “Non-Technical Summary” which, as its title suggests, was a summary of the details provided in support of the various applications for discharge expressed in language readily to be understood by persons without technical qualifications.
14. On 5 December 2012, the Defendant caused a second notice to be published in the Western Mail. This notice, too, identified the applicant, the proposed development and the location of the development together with the applications for discharge of the pre-commencement conditions, The notice continued:
“Further information (including a non-technical summary of the subsequent applications) or any other information is available in relation to the Environmental Statement which has already been provided.”
The notice then specified how members of the public could access this information before continuing:
“Anyone who wishes to make representations about the further information or any other information should write to the Cardiff County Council …..”
15. Identical notices were posted in the immediate vicinity of the site and notification letters were also sent to neighbouring occupiers. As had occurred following the consultation exercise in July a number of letters of objection were received.
16. The Claimant’s solicitors had first written to the Defendant on behalf of the Claimant and CATI on 15 November 2012. In that letter it had invited the Defendant to issue a stop notice to prevent the First Interested Party from continuing with the development. This letter was followed by a pre-action protocol letter dated 7 December 2012. On 13 December 2012 the Defendant replied:
“…
I can confirm
· That the council is currently holding a 21 day consultation period in accordance with Regulation 19 of the Town and Country Planning (Environmental Impact Assessment) (Amendment) (Regulations 1999) as amended. As the notice states “further information” in respect of the planning permission has been received in the form of a non-technical summary and the Dwr Cymru letter dated 19 September 2012.
· The Notice is clear that any person wishing to inspect the “further information” may do so in the manner referred to in the notice. I understand from your letter that members of CATI visited the Council’s offices to view the further information. The further information referred to above is contained on the planning file and is as quoted in your letter as being reported on the file by the members of CATI.
· If any person wishes to make representations on this “further information” they may do so to the Council at the address advertised in the Notice.
· After the consultation period has been closed the Council will proceed to make a determination in respect of the subsequent applications. Responses to the consultation exercises on the subsequent applications will be taken into consideration when making this determination”.
17. The Defendant’s Planning Committee met on 9 January 2013. It had before it a report from officers which recommended that it would not be appropriate to take enforcement action at that time. The final two paragraphs of the report were as follows:
“3.8 After consideration officers are of the opinion that the required technical information has been submitted to establish that there is no immediate threat that would require immediate enforcement action. The matter will be kept under review and if it is considered that action is necessary the matter can be brought back to the committee for a further decision. In the meantime officers aim to report the Discharge of conditions application to the 13th February 201[3] meeting of the Planning committee.
RECOMMENDATION
The Council has taken into account the advice given in paragraph 23 of Tan 9 and considers that in the light of the continuing planning process and the pending report on 13 February 2013, it would not be appropriate to take enforcement action at this time. In the event that consents to the subsequent applications are not granted by the Council this recommendation will need to be reviewed at that stage.”
.
18. The officer’s report produced for the Planning Committee which was held on 13 February 2013 was very detailed; it was accompanied by five appendices (see Trial Bundle Volume 2 pages 1208 to 1258). Appendix 5 (pages 1254 to 1258) was in the form of a table. It consisted of four columns In column 1 each pre-commencement condition was identified; in column 2 the author of the table assessed whether or not there had been a breach of each of the conditions; column 3 was an assessment of the consequences of any breach and column 4 expressed a conclusion about whether there was a need to pursue enforcement action. The conclusion reached in column 4 in respect of each of the pre-commencement conditions was that it was not expedient to take enforcement action in respect of any of the works which had been undertaken on site.