Property law reports

TOWN AND COUNTRY PLANNING: RESIDENTIAL DEVELOPMENT

Residential development - green belt - special circumstances - inspector refusing permission for development on derelict site - rejecting appellant and planning authority's view that industrial use most likely fall-back use - whether decision reached without proper regard to evidence - whether unfairness - appeal allowed

Edward Ware New Homes Ltd v Secretary of State for Transport, Local Government and the Regions: CA: (Lords Justice Kennedy, Buxton and Carnwath): 16 April 2003

The appellant appealed to the respondent secretary of state against the refusal of planning permission for a residential development on the site of a former mushroom farm in the green belt.

Several of the buildings on the site had subsequently been used for industrial or commercial purposes.

The appellant and the local authority agreed that if residential development were not permitted, the most likely fall-back use of the land would be industrial, and that residential use would generate less traffic than industrial use.

There was evidence to suggest that the authority's preference was for development that would generate employment.

After a site visit, the inspector noted that the buildings on the site were semi-derelict, and found that their reuse, even for low-order industrial activities, to be unlikely.

He concluded that the benefits of the claimant's scheme did not amount to 'very special circumstances' sufficient to justify inappropriate development in the green belt.

He accordingly dismissed the appeal.

The appellant appealed under section 288 of the Town and Country Planning Act 1990, contending that the inspector had: failed to have proper regard to the evidence that low-order industrial use was likely to continue; afford the parties a proper chance to comment on his conclusion to the contrary, reached as a result of his site visit; or give adequate reasons for his decision.

The judge dismissed the appeal; the appellant appealed.

Charles George QC and James Pereira (instructed by TLT, Bristol) for the appellant; Paul Brown (instructed by the Treasury Solicitor) for the respondent.

Held: The appeal was allowed.

Although evidence before the inspector had supported his conclusion on what was likely to happen to the site in the future, much of that evidence had been adduced for a different purpose.

The question of whether it could properly be used to support a conclusion that was not regarded by any of the parties as a realistic possibility had never been explored.

Although the inspector had not been bound by the terms of the agreed statement of common ground, and had been entitled to form his own view, he was obliged to give the parties a fair opportunity to comment: Fairmount Investments Ltd v Secretary of State for the Environment [1976] 2 EGLR 18, Wigan Metropolitan Borough Council v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 77; [2002] JPL 417 and Castleford Homes v Secretary of State for the Environment, Transport and the Regions [2001] PLCR 470 applied.

The parties' respective experts had not been asked to comment on only industrial or commercial future for the site.

On that issue, the inspector had not been entitled to form his own conclusion without giving the parties an opportunity not only to make submissions but also to ask the experts to assist.

ENVIRONMENT: HAZARDOUS WASTE

Claimant extracting oil from porous rock and replacing it with imported contaminated water - water leaching from oil-bearing strata into groundwater - whether claimant's activity regulated by Landfill (England and Wales) Regulations 2002 or Groundwater Regulations 1998 - claim dismissed

Blackland Park Exploration Ltd v Environment Agency: ChD: (Mr Justice Blackburne): 16 April 2003

The claimant operated an onshore oilfield.

As part of the operation, imported liquid wastes, including contaminated water, were injected into the oil-bearing strata to replace the extracted oil.

In July 2002, the Environment Agency informed the claimant that it had classified the site as a landfill for hazardous wastes.

Since the Landfill (England and Wales) Regulations 2002 prohibited the discharge of liquids into a landfill site, the injection of liquid waste was required to cease.

It was common ground that the contaminated water was hazardous waste, but the claimant contended that: (i) the site was not a 'landfill' for the purposes of the relevant legislation; (ii) although the water was pumped into porous rock, it subsequently leached into groundwater, which meant that the operation should be regulated by the Groundwater Regulations 1998; and (iii) since the groundwater in question had already been classified by the Environment Agency as unusable, the claimant was not in breach of any environmental legislation.

Regulation 3(2) of the Landfill Regulations defined 'landfill' as 'a waste disposal site for the deposit of the waste onto or into land'.

The claim turned on whether the definition of 'deposit' implied a degree of control on the part of the operator, as opposed to 'discharge', which, it was argued, did not.

The claimant contended that 'deposit' should be taken in the context of the legislation, emphasising the requirement for the controlled placement of waste into a static, self-contained environment (such as a disused mineshaft), whereby the depositor maintained an element of control over it.

'Deposit' implied no such degree of ultimate control, because where, as in this instance, the water was discharged into the ground, the claimant had no control over its progress through the rocks and into groundwater.

In effect, the contaminated water was not being discharged into any type of cavity that could be classified as a landfill site, but was discharged into the groundwater by way of the porous rock.

Stephen Tromans (instructed by Andrew & Co, Lincoln) for the claimant; Kassie Smith (instructed by the Environment Agency) for the defendant.

Held: The claim was dismissed.

The site was clearly operated as a landfill.

If liquid waste had been deposited into an underground cavity, such as a disused mine, the activity would have been that of a landfill.

The fact that the liquid was being discharged into porous rock made no difference, and it was irrelevant that the underground strata spread beyond the confines of the site and was not all under the control of the operator.

The definition in the Landfill Regulations did not require that the land into which the waste was deposited should be defined by the surface boundary of the site.

The distinction between the terms 'deposit' and 'discharge' did not suggest any sort of control or lack of control over the medium into which the waste was placed.

Such a reading of Council Directive 1999/31/EC (the Landfill Directive) and corresponding regulations, which had a broad purpose to protect the environment and human health, was too narrow.

Groundwater could exist in a mine or a well, and its presence would not put them outside the confines of the Landfill Directive.

The presence of groundwater in the porous rock was therefore irrelevant to the operation.

The manner in which the claimant's activity could be characterised was more relevant; that is, was it a waste-disposal operation, in the sense that the site was operated for the disposal of waste, so that the discharge to groundwater was incidental to, or a by-product of, some other operation conducted from the site? Given that the answer was yes, the site clearly operated as a waste-disposal site and came within the meaning of the Landfill Regulations.