UBB Waste Essex Ltd v Essex County Council

A certificate of lawfulness for proposed development determines a question of law. On judicial review, the court therefore determines whether it was correctly granted without deferring to planning judgement.

A planning permission is construed objectively through the natural meaning of its words, its planning purpose, common sense and its context. Where documents are expressly incorporated, they must be considered holistically. An isolated expression should not control where the incorporated material, the reasons for a condition and the underlying policies demonstrate a different planning purpose.

Extrinsic documents ordinarily require ambiguity. Courts should be especially cautious about private or inaccessible material because planning permissions are public documents, affect third parties and may support criminal sanctions.

The claimant operated a mechanical and biological waste-treatment facility under a planning permission granted by Essex County Council. The council later issued a certificate under section 192 of the Town and Country Planning Act 1990, certifying that the facility could lawfully receive and treat up to 30,000 tonnes annually of source-segregated green garden waste from household waste recycling centres.

The claimant sought judicial review. The decisive issue was whether the council had misinterpreted the permission and its incorporated planning and environmental documents. In particular, the court had to determine whether the permission confined waste from household waste recycling centres to residual waste and thereby excluded source-segregated green garden waste.

1. The claim succeeded and the certificate was quashed. A certificate under section 192 of the Town and Country Planning Act 1990 determines whether a proposed use is lawful. Its correctness was therefore a question of law for the court, rather than a matter of planning judgement attracting deference.

2. A planning permission is interpreted objectively, as a reasonable reader with some knowledge of planning law and the subject matter would understand it. The natural meaning of the words remains central, but the court also considers the permission as a whole, its planning purpose and common sense. The reasons for relevant conditions provide the starting point for identifying that purpose, followed by the policies referred to and any incorporated documents. The court applied the approach in Trump International Golf Course v Scottish Ministers [2016] 1 WLR 85 and London Borough of Lambeth v Secretary of State for Housing, Communities and Local Government [2019] UKSC 33.

3. Where planning and environmental documents are incorporated by reference, the court must take a holistic view of their relevant provisions. It should seek to understand the nature of the development and the planning purpose of the condition. An isolated sentence should not be treated as decisive unless it supplies an unequivocal answer. Extrinsic material ordinarily becomes relevant only where the permission is ambiguous. Particular caution is required with private or inaccessible material because planning decisions must be transparent, affect third parties and may support criminal sanctions.

4. Read as a whole, the permission authorised a mechanical and biological facility directed to residual waste. The incorporated planning statement, environmental statement and non-technical summary repeatedly described that function. Condition 21, understood with its stated reasons and the waste policies underlying it, excluded source-segregated green garden waste from household waste recycling centres. The omission of the word “residual” from one reference to waste from those centres did not expand the permission. The council's construction would have allowed segregated recyclable material to be moved down the Waste Hierarchy and was inconsistent with the permission's planning purpose and common sense.

5. The absence of an environmental assessment of the proposed 30,000-tonne waste stream strongly supported that construction. The court did not decide whether the environmental assessment legislation supplied a separate ground of unlawfulness. Permission for judicial review was granted on ground one and the certificate dated 12 February 2019 was quashed.

This was a first-instance judicial review. Holgate J considered the application on the papers and directed a rolled-up hearing at which permission and the substantive claim would be determined together.