Horner, R (on the application of) v Castle Cement Ltd.

For environmental impact assessment purposes, statutory classification is a question of law, but applying the correct classification to the facts is ordinarily a matter of fact and degree. The project is defined by the development for which planning permission is sought. An installation integral to an existing cement manufactory and supplying fuel for cement production is generally assessed as an extension to that manufactory, not as a waste-disposal installation, unless it changes the character of the larger works. A planning authority must obtain sufficient information and make its own assessment of environmental effects. It may assume that another regulator will act competently, but cannot abdicate its EIA responsibilities.

Castle Cement obtained planning permission from Lancashire County Council for machinery to store and feed animal or agricultural waste-derived fuel into an existing cement kiln. No environmental statement was required or produced. The claimant, who farmed near the works, sought judicial review on the grounds that the proposal fell within the environmental impact assessment categories for waste installations or an extension to a cement manufactory, that the Council had failed properly to assess environmental effects and waste policies, and that a planning condition was irrational.

The central issues were whether the permitted development was EIA development under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, whether best practicable environmental option had to be considered, and whether condition 3 was lawful.

1. Claim dismissed. The proposed storage and feed system was an extension to the existing cement manufactory, but the applicable 1,000 square metre floorspace threshold was not exceeded. “Floorspace” meant floorspace in a building or buildings; the absence of conventional floorspace did not bypass the threshold.
2. The statutory meaning of the Schedule 1 and Schedule 2 descriptions was a question of law. Applying those descriptions to the individual project was a fact-and-degree judgment, reviewable only on conventional public law grounds. The project was defined by the planning application, subject to considering a larger integral project where necessary to prevent piecemeal avoidance of EIA requirements.
3. The machinery was not a waste-disposal installation for incineration. It did not itself burn waste. Viewed as part of the larger works, it formed an integral part of cement manufacture. The use of waste-derived fuel for its calorific value and not for the primary purpose of disposal did not change the character of the works into a waste-disposal installation. The reasoning in R v Durham County Council, ex p Lowther [2001] EWCA Civ 781 and R (Edwards) v Environment Agency and Rugby Cement Ltd [2005] EWHC 657 (Admin) supported that conclusion.
4. The Council could not rely on the Environment Agency to determine the nature of the fuel or discharge the Council’s own EIA function. It had to possess sufficient information and make its own assessment. It could assume competent operation by another regulator and take account of specific, available and effective mitigation. On the facts, however, the proposal remained outside the relevant EIA classes.
5. Although best practicable environmental option should have been considered as an objective under the national waste strategy, its omission caused no material error because the available evidence could not realistically have produced a different outcome. Condition 3 was lawful under section 70(1) of the Town and Country Planning Act 1990. Lancashire County Council was awarded its costs, subject to detailed assessment. Castle Cement’s application for a second costs order was refused.