Planning – Authorisations – Inspectors – Waste disposal

Berry & Marshall (Bolton Wood) Ltd (claimant) v Secretary of State for Environment, Food and Rural Affairs (defendant) and (1) Environment Agency (2) Bradford Metropolitan Borough Council (interested parties): QBD (Admin) (Judge Behrens): 24 September 2010

The claimant quarry owner (B) applied for judicial review of a decision of an inspector appointed by the defendant secretary of state upholding the refusal of the Environment Agency to grant it a permit to dispose of inert waste at the quarry.

Under regulation 10(4)(b) of the Pollution Prevention and Control (England and Wales) Regulations 2000, the Environment Agency was bound to refuse a permit unless planning permission was in force in relation to the use of the site. It was common ground that there was no express conventional grant of planning permission covering the relevant use at the site. However, B’s case was that planning permission existed by virtue of general development orders. B argued that the inspector had failed to deal adequately or at all with its submission that it had the necessary planning permission for the deposit of waste by virtue of historic general development orders.

Held: The reasons given by the inspector were inadequate. The issue of the historic general development orders had been fairly before her. Detailed submissions had been made by all parties, but the inspector had not dealt adequately with those submissions. It was not possible for B to know why it lost. However, as this was a reasons challenge, B would succeed only if it could show that it had genuinely been substantially prejudiced by the failure to provide adequate reasons. B was applying for a permit for the whole of the area contained in a waste disposal licence granted in 1983. As there was no express grant of planning permission, it had to show under regulation 10(4)(b) that there was a deemed planning permission for the deposit of waste on the whole of the site. Before 1988, each individual deposit of waste on a site was granted planning permission by the historic general development orders where the superficial area of the deposit was extended so long as the height was not extended above the height of the surrounding land. However, the position changed as a result of the Town and Country Planning General Development Order 1988: the general grant of planning permission enjoyed previously was revoked without any saving provision. Thereafter, 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 permission. B therefore had to show that, before 5 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 beyond the areas that had been tipped on 5 December 1988. The inevitable conclusion from the inspector’s findings, which included a finding that there had been limited tipping after 1983, was that B had not established on the balance of probabilities that it had deposited waste on the whole of the site as at 5 December 1988. Indeed, it was not part of B’s case that it had. In those circumstances, there was no extant permission for the whole of the site. It followed that B could not establish the necessary prejudice for the reasons challenge to succeed.

Application refused.

John Barrett (instructed by Walker Morris (Leeds)) for the claimant; James Maurici (instructed by in-house solicitor) for the defendant; no appearance or representation for the interested parties.