Lewes District Friends of the Earth Ltd & Ors, R (on the application of) v East Sussex County Council & Anor

Planning guidance must be applied with practical judgment and common sense. A local planning authority may rely on earlier site-selection work when applying the sequential approach to flood risk, particularly where the Environment Agency has been consulted and raises no objection. A planning permission is not invalid merely because a separate pollution-control permit is later quashed, where the two regimes are separate and complementary and the permit was not a legal precondition to planning permission. Reports must address material policy considerations, but omission of aspirational long-term targets may be lawful where immediate and pressing waste-management needs, existing policy objections and other safeguards explain the approach.

The claimants sought judicial review of East Sussex County Council’s decision to grant planning permission for an energy recovery facility and associated waste infrastructure at North Quay, Newhaven. Five grounds challenged the treatment of waste-plan policy, rail transport, flood-risk guidance, a pollution-prevention and control permit, and longer-term recycling targets. Grounds 2, 4 and 5 were held unarguable at the outset. Permission was granted on grounds 1 and 3, followed by the substantive hearing. The central issues were whether the quashing of the separate pollution-control permit invalidated the planning permission and whether the planning report unlawfully failed to address the 2020 and 2025 recycling targets.

The claim failed. Permission to apply for judicial review was granted on grounds 1 and 3 only, but the substantive application was dismissed. The remaining grounds were held unarguable.

1. Waste-plan allocation and transport. Policy WLP9 did not require a North Quay facility to serve only the western part of the plan area. The proposal could form part of an integrated strategy in which further facilities would later be provided. Policies WLP2(b) and WLP19(b) preferred rail or water transport where practicable, but the report was entitled to conclude, on the evidence concerning reconnection, loading facilities, logistics, cost and limited environmental benefit, that rail transport was not currently practicable.
2. Flood risk. PPS25 was policy guidance, not a rigid legal obstacle test. The sequential approach could be addressed through the earlier Local Plan and environmental assessment processes, which had identified North Quay as the most appropriate site for this demanding form of development. The Environment Agency had been consulted and had not objected. The omission of a further express sequential-test analysis was therefore not unlawful. The decision was readily distinguishable from R (on the application of the Environment Agency) v Tonbridge and Malling Borough Council [2005] EWHC 3261 Admin.
3. Pollution control. The planning and pollution-control regimes were separate but complementary. Following Gateshead Metropolitan Borough Council v Secretary of State for the Environment [1995] ELR 37, the planning authority could focus on land-use issues and assume that the pollution-control regime would be properly applied and enforced. Quashing the PPC permit for inadequate reasons did not invalidate the planning permission. The permit was not a legal precondition to planning permission, and the quashing did not falsify the report’s conclusions about matters within the Environment Agency’s province.
4. Recycling targets. The report was entitled to concentrate on the immediate 2015 targets, whose breach was regarded as certain without the facility, while treating the 2020 and 2025 targets as aspirational and addressing them through future development-plan work and contractual arrangements. Read in context, the omission of express reference to those later targets could not realistically have affected the decision.

Costs were left for written submissions and detailed assessment. Permission to appeal was refused, although the claimants retained the opportunity to apply to the Court of Appeal. The time for any such application by the Town Council was extended to 21 days.