Blewett, R (on the application of) v Derbyshire County Council

A waste planning authority must keep mandatory waste-management objectives in mind, but may lawfully grant permission where conditions reduce noise and odour below levels that would constitute nuisance. An environmental statement is assessed within the regulatory process as a whole. It need not contain every item of information ultimately available, unless its deficiencies are so grave that it is not, in substance, an environmental statement.

For landfill proposals, the policies on Best Practicable Environmental Option in Waste Strategy 2000 required a planning authority to ensure that permission was in line with those policies. It was insufficient to treat BPEO as a consideration to which any weight could be given. The authority had to analyse the waste hierarchy, proximity principle and self-sufficiency for the waste streams concerned.

The claimant sought judicial review of Derbyshire County Council’s grant of planning permission to Derbyshire Waste Ltd for landfill, land reclamation and restoration at Smith’s Void, a former colliery site near several villages.

He alleged that the environmental statement inadequately addressed groundwater and human health; that the council had failed to keep the statutory objectives concerning noise and odour in mind; and that it had failed to assess whether the development was the Best Practicable Environmental Option for the relevant waste streams. The council had granted permission subject to conditions concerning, among other matters, noise, odour, groundwater and contamination.

The central issue was whether errors in the council’s treatment of environmental information and BPEO made the permission unlawful.

1. Claim allowed on the BPEO ground. The planning permission was quashed. The claimant’s challenges concerning noise and odour, and the environmental statement, failed.

2. Paragraphs 2 and 4 of Schedule 4 to the Waste Management Licensing Regulations 1994 required the council to keep the relevant objectives in mind. The objective was to avoid nuisance through noise or odours, rather than to eliminate all noise or odour from a landfill operation. The reports and conditions showed that the committee had addressed that objective. Noise limits designed to prevent nuisance and a scheme requiring monitoring and remedial action for odour were lawful.

3. The environmental statement was sufficient. A planning authority’s assessment of whether a document meets the definition of an environmental statement is reviewable on ordinary Wednesbury principles. The statutory scheme contemplated that consultation and further information may expose inaccuracies, omissions or a need for more detailed mitigation. Those matters did not automatically deprive the authority of jurisdiction to grant permission. The statement and addendum identified groundwater risks, proposed containment and leachate-control measures, and enabled informed criticism. The permission also constrained the subsequent technical detail. It did not impermissibly defer the assessment of significant impacts or the effectiveness of mitigation.

4. The council’s BPEO approach was legally defective. Following implementation of the landfill regime, a waste planning authority had to ensure that a landfill proposal was in line with the BPEO policies in Waste Strategy 2000. Those policies were more prescriptive than a mere material consideration. The council had to examine the waste hierarchy, the proximity principle and self-sufficiency for the particular waste streams.

5. Merely repeating the acronym BPEO and its definition did not amount to that analysis. Once the report concluded that landfill capacity existed locally and county-wide until 2011, it had to assess whether a site in north-east Derbyshire was the BPEO for meeting an asserted shortage in the south-east, particularly under the proximity principle. The failure was material. The court could not know whether a proper assessment would have supplied a substantial planning ground for refusal, so it declined to withhold relief.

6. The defendant was ordered to pay 50 per cent of the claimant’s costs, subject to detailed assessment. Permission to appeal was granted because of the wider importance of BPEO for waste planning authorities.

not stated in the judgment.