Residents Against Waste Site Ltd v Lancashire County Council & Anor

In a judicial review of planning permission for a waste facility, statutory waste-management objectives must be addressed in substance. The decision-maker need not recite the Directive or regulations, or use particular language, provided the objectives were properly kept in mind. They remain mandatory objectives, but do not create a hierarchy of material considerations.

Where traffic routeing is recognised as essential, contractual arrangements which do not run with the land may be insufficient. The authority should secure the routeing obligation as a planning obligation under Town and Country Planning Act 1990, section 106.

Residents Against Waste Site Ltd sought judicial review of Lancashire County Council’s grant of planning permission for a waste technology plant at Farrington Moss. The challenge alleged that the Council had failed to comply with relevant waste-management objectives and had failed to secure essential traffic routeing.

The Council disputed the claimant’s standing and relied on delay and prejudice. The court rejected those preliminary objections. It then considered whether the statutory objectives had been substantively addressed and whether routeing arrangements secured by contract, rather than by an obligation attaching to the land, were sufficient.

1. Standing and promptness. A company formed by a local action group may have standing to bring judicial review. The fact that incorporation may limit members’ exposure to costs does not, without more, justify denying standing. The proper response is to address costs, including security for costs. The claim was also sufficiently prompt. Although it was on the brink of being out of time, the defendants could not show that earlier proceedings would have altered their conduct or avoided relevant prejudice.
2. Relevant objectives. Under Waste Management Licensing Regulations 1994, regulation 19 and Schedule 4, the planning authority had to discharge its specified function with the relevant objectives, including avoiding harm to health and the environment, and nuisance from noise or odours. The court adopted the approach in R (Thornby Farms Ltd) v Daventry District Council [2002] EWCA Civ 31, (2003) QB 503. The objectives are ends to be kept in mind, not a superior class of material consideration. A decision is unlawful only where there is a plain and flagrant disregard of them.
3. The test is substantive rather than verbal. Express reference to the Directive or regulations is unnecessary if the decision-maker in fact gave proper attention to the objectives. Conversely, formulaic reference cannot save an otherwise unlawful decision. The development plans, policy documents, officer consideration and member training showed that the objectives had been properly addressed. This ground failed.
4. Traffic routeing. A contractual obligation between the Council and the operator did not run with the land. A routeing condition might be possible but, in light of established planning practice and national policy, its absence was not irrational or unlawful in itself. However, the Council could secure the routeing requirements through a unilateral undertaking under section 106 of the Town and Country Planning Act 1990, which would attach to the land. In the circumstances, failing to consider it essential to secure that obligation was unlawful.
5. The claim succeeded only on the narrow traffic-routeing ground. The Council had already undertaken to secure the necessary planning obligation, so no further order was required.