Kolb, R (on the application of) v FCC Environment UK Ltd

Where development has been allocated through a development-plan process supported by an up-to-date strategic sequential assessment, a further site-specific sequential test is not required for development consistent with that allocation. A site-specific flood-risk assessment may take account of physical changes not reflected on published flood maps, provided the resulting expert judgment is rational and not contradicted by the relevant regulator. Planning controls need not duplicate the Environment Agency’s environmental-permit regime. In judicial review, the court reviews public-law legality and rationality, not the planning merits. A complaint process does not extend the time for seeking judicial review or replace the need to issue a claim promptly.

The claimant challenged Buckinghamshire County Council’s grant of planning permission for an energy-from-waste facility and associated hazardous-waste disposal at Calvert Landfill Site. He alleged failures concerning the sequential approach to flood risk, the reliability of the flood-risk assessment, procedural fairness, misleading information, and the Hazardous Substances Act 1990. The Council and FCC relied on strategic and site-specific flood assessments, the Environment Agency’s position, and the separate environmental-permit regime. The court also considered whether the claim, issued five weeks outside the three-month period, should proceed.

1. Sequential approach. The Council had undertaken a strategic sequential assessment during preparation of its core strategy and had concluded that no sequentially preferable site was available. The planning application was accompanied by a site-specific flood-risk assessment. Under paragraphs 101, 103 and 104 of the NPPF, a further site-specific sequential test was not required for development on a site allocated through that strategic process, provided the development was consistent with the allocation and the most vulnerable development was located in the area of lowest flood risk. The decision was consistent with the sequential approach.
2. Flood-risk assessment. The Environment Agency’s published maps did not reflect the mega-ditch. The Council was entitled to rely on hydraulic modelling which concluded that Pit 6 was not in an area at risk of flooding. The challenge was in substance an attack on expert judgment and planning merits. That judgment was rational, was not contradicted by the Environment Agency, and could not be displaced by judicial review.
3. Fairness and information. Officers were entitled, and indeed obliged, to correct their advice. The claimant had already made written and oral representations and suffered no procedural unfairness. The committee was not given factually inaccurate or misleading information.
4. Hazardous waste. Planning control did not need to duplicate the Environment Agency’s environmental-permit regime. The proposed disposal of air-pollution-control residues required an environmental permit, through which objections concerning contamination and the nature of the waste could be raised. The claimant identified no specific breach of the Hazardous Substances Act 1990.
5. Delay and disposition. The claim was issued five weeks late. A complaints procedure could not provide the remedy sought and did not justify extending time. Permission to apply for judicial review was refused because none of the grounds was properly arguable and, alternatively, because of undue delay.

First-instance judicial review proceedings. Permission to apply for judicial review was refused.