Outdoor education facility fails in legal challenge to permission for waste recycling centre 30 metres away

Mrs Justice Lieven dismissed all grounds argued by site operator Hilltop Experiences, which had sought judicial review of the council’s decision.

Hilltop is a residential outdoor education facility for children aged 4 to 12 years old.

Its operator argued it was unlawful to have given consent for the new waste site because Norfolk failed to consider alternative sites, took into account irrelevant considerations when deciding whether the site constituted 'major development’ under policy on the Norfolk Coast National Landscape, and acted irrationally by deciding it was not ‘major development’ under paragraph 183 of the National Planning Policy Framework (NPPF).

Hilltop also argued the council failed to interpret and lawfully apply the NPPF, failed to discharge its obligation under s.149 of the Equality Act 2010 and had an unlawful screening opinion by failing to consider the effects on human health of certain types of waste.

The court heard the centre is intended to replace the existing one. Hilltop has a playing field adjacent to the existing site, the southern end of which is not used because of the site’s impact.

This means the closest used part of Hilltop is 35 metres from the waste site and would be the same distance from the new site.

Although the existing site occupies 0.1ha and the new one 0.45ha, the court was told this was to allow a larger area for vehicles and the operational area would be the same.

A proposed throughput of 6,000 tonnes a year would mean little change as the catchment remains the same and the types of wastes permitted would be similar.

Norfolk had long sought a replacement for the existing site because traffic can back up onto the A148, as only eight cars can enter at a time.

Lieven J said the overall thrust of Hilltop’s objections was the impact of the new site on its activities because of noise, dust and other impacts on amenity.

Dismissing Ground 1 about the search for alternative sites, Lieven J said the judgement in the officer’s report, accepted by members, was that the consideration of alternatives was sufficient and “in my view that conclusion was not irrational”.

Looking at Hilltop’s bid to admit new evidence about a potential waste site named East Beckham Quarry, Lieven J said although this site had previously been unknown to officers, members knew it was possible there were other alternative sites, and it had been open to them to find such considerations did not justify the grant of permission, “but they did not reach that conclusion".

They instead decided the limited impact of the application meant no further assessment of alternatives was required, and “in my view that was a conclusion open to them, and it follows that the possibility of another potential alternative site does not change the analysis”.

The judge said Hilltop’s arguments about 'major development’ failed because the proposed operation of the new site was only marginally greater than the existing use and so it was open to Norfolk to conclude the activities and the physical scale were not themselves ‘major'.

“There is no basis for finding that the members erred in law in their conclusion about major development,” Lieven J said. “There was nothing even arguably irrational in the members' conclusion on the issue. The site was a relatively small one with a quite limited turnover. There were no additional traffic movements generated and it was very close to a main road.”

She found the officer’s report had set out the correct tests for ‘major development’ and nothing materially misleading had been involved.

Ground 4 was not pursued and on Ground 5 Lieven J found the public sector equality duty was not a factor since the proportion of children with protected characteristics using Hilltop “would in broad terms follow that of the general population.

“In my view that was a perfectly reasonable assumption to make in the light of the representations that the claimant itself had made,” she said.

She found the screening opinion was lawful as Norfolk considered the relevant effects “and concluded that there was no significant likely effect that would give rise to the proposed development being [environmental impact assessment] development. In my view that was a wholly lawful conclusion, indeed the only one [the relevant officer] could have rationally come to on the facts.”

Mark Smulian