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R (o.a.o. Khan) v London Borough of Sutton [2014] EWHC 3663 (Admin)

DATE: 07 Nov 2014

In R (o.a.o. Khan) v London Borough of Sutton [2014] EWHC 3663 (Admin) the High Court yesterday dismissed a judicial review challenge to the London Borough of Sutton’s March 2014 decision to grant planning permission to Viridor Waste Management Ltd for the development of an energy recovery facility at Beddington Farmlands Waste Management Facility near Croydon.

The claimant pursued four grounds of challenge (permission having been refused in respect of a fifth), namely that the Council:

  1. Had wrongly interpreted policy WP3 of the South London Waste Plan;

  2. Had erred in concluding that the requisite “very special circumstances” required by the NPPF existed so as to justify granting planning permission for inappropriate development in Metropolitan Open Land;

  3. Had fettered its discretion; and

  4. Had breached the requirements of the EIA regime in failing to assess the environmental impact of CHP pipework beyond the boundaries of the site.

 Patterson J rejected all four grounds of challenge. In respect of the first ground, the claimant’s assertion that the Council had erred in characterising a footnote to policy WP3 as no more than supporting text was rejected, the Court of Appeal’s judgment in R (o.a.o. Cherkley Campaign) v Mole Valley DC [2014] EWCA Civ 567 being held to be clearly applicable. Patterson J held that there was nothing in the second ground nor any basis for the third ground, by which the claimant was seeking to run an argument that the Council had fettered its discretion by inference.

As to the fourth ground, the key was that the environmental statement required by the EIA Regulations only had to include such information as was reasonably required to assess the environmental effects of the development and which the applicant could reasonably be required to compile having regard to current knowledge. In circumstances where at the time of the relevant decision there were no confirmed end-users and the route for off-site pipework remained unknown, there remained a “want of detail” and the Council had been reasonably entitled not to require further information. Until the end-user and likely route were known it would be virtually impossible to include a description of the likely significant environmental effects of the off-site pipework. Having considered the decisions in R (o.a.o. Blewett) v Derbyshire CC [2004] Env LR 29, R (o.a.o. Littlewood) v Bassetlaw DC [2009] Env LR 21, R (o.a.o. Bristol City Council) v SSCLG[2011] EWHC 4014 and Marton-cum-Grafton PC v North Yorkshire CC [2014] Env LR 10, Patterson J concluded:  

“[133] …What in essence was being considered by the defendant was a phased development the second phase of which had not reached any real level of probability. There were no confirmed end-users. In the absence of that there was no known pipeline route. Without that, it is quite impossible to say that the defendant acted unreasonably or irrationally in not requiring an amendment to the environmental statement. Any future pipelines will doubtless be subject to their own EIA which will consider the cumulative impact with the permitted development as part of that next phase”.

David Elvin QC and Heather Sargent appeared for Viridor (instructed by Bevan Brittan).

Please find the judment here.