WASTE FACILITIES: DIFFICULTIES FACING DEVELOPERS Stephen Tromans and James Burton The difficulties for waste facilities posed by the best practicable environmental option concept and environmental assessment requirements have been the subject of much recent comment. But developers face many other hurdles. Waste facility The natural initial step is to establish whether or not the proposed facility does, in fact, involve waste within the meaning of the relevant (EC) law 1. As the European Court of Justice has made clear the fact that a substance is subject to a recovery programme does not, of itself, confirm its status as waste. Equally that it has further economic use does not confirm that it is not waste. Rather the legal framework is aimed broadly at those objects and substances discarded by their owner 2. The ECJ has repeatedly confirmed that discard is to be interpreted broadly. Developers should also bear in mind that the definition of landfill will be similarly treated expansively so as to bring waste disposal operations within the Landfill (England and Wales) Regulations 2002. The mere fact that waste comes in the form of water containing various contaminants that is then pumped into an onshore oilrecovery facility does not justify an exemption 3. Development on contaminated land It will often be convenient to construct waste facilities on land already in some way affected by contamination. Developers should have regard to PPS 23, Annex 2 and 1 Directive 75/442/EEC on waste (as amended by Directive 91/156/EEC), Art.1(a) with Annex I. 2 In Saetti v Frediani [2004] Env. L.R. 37, ECJ (Case C-235/02) petroleum coke arising from the refining process was not waste as it was; (a) produced through technical choice; and (b) certain to be used in its entirety as fuel. 3 [2004] Env. LR 33, CA Simon Brown, Mummery and Scott Baker LJJ. 1
the guidance given there. They will need to satisfy the local planning authority that the development does not create or allow the continuation of unacceptable risk arising from the condition of the land or adjoining land 4. It should be understood that the concept of unacceptable risk for the purposes of a planning application extends beyond that found in Part IIA of the Environmental Protection Act 1990 5 ( the 1990 Act ). Hence the PPS envisages remediation aimed at no less than removal of the unacceptable risk and elevation of the site to a state suitable for its new use 6. A threshold test is proposed: the site should not be capable of being determined as contaminated land under Part IIA. Many will undoubtedly view this as unfairly placing the burden of rectifying historic contamination upon developers notwithstanding that their proposal does nothing to aggravate the situation. Nevertheless local planning authorities are likely to use planning conditions to ensure that contamination is investigated, monitored and often linked to phased development. Applicants should be ready for that challenge. Freedom of Environmental Information A very recent potential complication, and one with particular relevance to development of waste facilities, arrives in the shape of the Environmental Information Regulations 2004 7. The advent of the Regulations has been timed to coincide with the coming into force of the Freedom of Information Act 2000. Their effect on the working of the regime established by the Act is to uniquely, and all-but entirely, subordinate it to the framework established by the Regulations in respect of environmental information. That said the point has been made that it is hard to see how a request for environmental information made under the latter could be refused but succeed when made under the former 8. The right of access to environmental information is exercisable against any public authority. That term is broad enough to include all manner of agencies, boards and other quangos as well as government departments and local authorities. For developers the Regulations seem likely to prove a mixed blessing. It will be possible 4 PPS, para. 2.49 5 Ibid. para. 2.50. 6 Ibid. para. 2.51. 7 Made under the European Communities Act 1972. 8 J.P.L [2005] Jan. 12ff, Philip Coppel. 2
to obtain information of use in undermining rival applications. On the other hand objectors to one s development now have the means to acquire substantial quantities of material that may be germane to their efforts to thwart the project. Planning obligations (section 106) Naturally any application for a waste facility will require that careful thought be given to addressing local concerns surrounding amenity, noise, health and so on. It is difficult to give much by way of useful general guidance on the conditions necessary to achieve those aims. However developers will need to be vary of a straightjacket permission that will see them involved in furious litigation with the local authority and nimby residents following the slightest change in the operation of their facility. However no matter how far advanced the actual permission and attendant conditions it seems that negotiations over developer contribution to the local area through the usual s.106 agreement can drag on indefinitely. There is, though, some hope. The Government has now published a draft revised circular advocating reform of the system presently guided by DoE Circular 1/97. It has done so substantially in recognition of the fact that the courts have largely undermined the Circular 1/97 necessity test. The Government s proposals do, in fact, retain the necessity test, and the Circular 1/97 policy tests as a whole, but emphasise the need for planning obligations to be necessary in order to make the development acceptable in planning terms. The LPA will need to demonstrate a link between the contribution sought and a relevant local or national planning policy; obligations must be tied to impact mitigation or some positive step rather than used as a tax. Given, though, the acknowledged truth that the concept of acceptability has expanded greatly in recent years developers would be right to fear an upsurge in the use of planning obligations. It is apparent that the Government has no immediate plans to proceed with regulations to set planning contributions on the new statutory basis 9 provided for by sections 46 and 47 of the Planning and Compulsory Purchase Act 2004. 9 Section 2(18) of the consultation document. 3
Living with the neighbours Even once all planning and waste licensing hurdles have been passed and the development realised the very nature of waste facilities means that there will be a risk of statutory nuisance proceedings brought by local authorities under s.79 of the 1990 Act or by persons aggrieved under s.82. Alternatively private actions at common law. As regards the latter in addition to normal Leakey v National Trust 10 nuisance principles such cases are likely to involve consideration of classic Rylands v Fletcher principles, as interpreted by the courts in recent years. It must be remembered, though, that even under Rylands v Fletcher it remains a necessary part of any finding of liability 11 that the damage suffered was reasonably foreseeable, just as in nuisance. So far as statutory nuisance is concerned it is not the responsibility of local authorities to assist or advise developers as to how to keep, e.g., noise within relevant limits set by planning permissions 12. Operators of waste facilities should also bear in mind that the words industrial, trade or business premises in s.79(1)(d) of the 1990 Act are inclusive, as section 79(7) would suggest. Hence sites will fall within the wording unless excluded expressly or by necessary implication 13. If the activity is prima facie within the section then rather than seek to side-step it site owners must look to prepare; (a) robust best practicable means defences, in accordance with s.80 of the 1990 Act; or, possibly (b) arguments directed at a change in the nature of the locality brought about the grant of permission for their facility along classic Gillingham v Medway (Chatham) Dock Co Ltd 14. The latter found favour in the first 1990 Act statutory nuisance case concerning onshore wind farms to come before courts 15. It is important to note that the mere grant of planning permission will not provide a defence to nuisance actions. It remains the case that operation of a permitted landfill site can still amount to unreasonable user demanding compensation where local residents are affected by odour and litter, albeit that it is less likely a court will 10 [1980] QB 485. 11 Cambridge Water Company v. Eastern Counties Leather plc [1994] 2 WLR 53, HL. 12 Tewkesbury Borough Council v Deacon & Another [2004] Env. LR 22 (Admin), Evans-Lombe J. 13 Hounslow L.B.C. v Thames Water Utilities Limited [2004] QB 212 (Admin), Pitchford J, Scott Baker LJ. There Thames Water was told that sewage works did fall within s.79 and that it ought look to the defence of best practicable means under s.80 for a defence to odour-related proceedings. 14 [1992] 3 WLR 449, Buckley J. 15 Nichols, Albion and Lainson v. Powergen Renewables Limited and Wind Prospect Limited (South Lakeland Magistrates Court, 20 January 2004) 4
exercise its discretion to grant an injunction in such a case 16. Ultimately the law of nuisance, whether applied in statutory proceedings or at common law, remains founded on the principle of give and take between landowners. A little initial flexibility on the part of the facility can go a long way. and dealing with protestors Once over these various hurdles there is the small matter of an ever-growing environmental protest movement to overcome 17. The one piece of good news for operators here is that it is at least now established that claimants can obtain injunction even though unable to name those it is proposed will be subject to the relief sought 18. Stephen Tromans and James Burton 39 Essex Street, WC2R 3AT 16 Blackburn v ARC [1998] Env LR 469 (Official Referee s Business) HHJ Humphrey Lloyd QC. 17 J.P.L. (2003) Nov. 1367ff, Tromans and Thomann. 18 Hampshire Waste Services Ltd v Intending Trespassers upon Chineham Incinerator Site [2004] Env. LR, Sir Andrew Morritt V.C. 5