Bath & North East Somerset council has expressed its disappointed at a High Court decision to overrule its enforcement action against a company seeking to develop waste and recycling services at a site in Odd Down.
Gazelle was granted a Use Class B2 planning permission to operate industrial work on the 3.38 hectare site in 2004 following a dispute with the council that was eventually deferred to the Secretary of State.
Bath & North East Somerset council had, at this time, sought enforcement action against Gazelle claiming it needed to alter its planning permission to take into account recycling of aggregates at the site. And, in November 2006, it claimed there had been “numerous alleged breaches of planning control” at the site.
Following correspondence between the property firm and the council, Sustainable Environment Solutions (SES) said it was working with planning consultants to draft plans over developing the site for further waste and recycling use. However, the council said it did not receive any further plans and served planning contravention notices on Gazelle.
This matter was then discussed at a council development control committee meeting in October 2008 in which members agreed to officer recommendations to undertake enforcement action against the site over a perceived change of use that contravened its existing planning permission.
Proposal
Jon White, managing director of SES, had intended to discuss the company's proposal at the council development control committee meeting on February 18 2009, which would outline its plan to develop as a special commercial vehicle to bid for the council's waste contracts.
However, Mr White was not allowed to address the committee and minutes show that his correspondence, as well as proposals for future developments at the site, was not discussed.
The council voted at the meeting to take “any necessary action” over a perceived change of use and certain operational developments at the Fuller Earth Works site.
Subsequently, David Trigwell, the council's divisional director of planning and transport development, drafted a document which concluded that enforcement action would be taken in lieu of “an unregulated site, failure of negotiations to conclude issues, ongoing harm to Green Belt and other policy areas. [It is] in the public interest to proceed with enforcement action”.
Two enforcement notices were issued by the council, which ordered the permanent cessation of several operations – including waste processing – and the demolition of the concrete batching plant on the site and the removal of the office building from the site.
Gazelle appealed against the notices and then sought a Judicial Review in November 2010.
Judgement
In rendering his judgement, Mr Justice Lindbolm said that the local authority had made a “basic and fatal error” in not allowing Mr White to outline the plans for the development at a development control committee meeting on February 18 2009.
Justice Lindbolm said: “The members ought to have been allowed to make up their own minds on the weight, if any, to be given to the negotiations and, in particular, to Mr White's representations so that they could put that factor in the balance with the others which militated for or against the taking of enforcement action. Without that factor they could not properly strike the balance they had to strike.
“That they failed to do this was, in my judgment, a basic and fatal error. And I am no doubt that it is the kind of error which attracts relief in a claim for judicial review, rather than one which ought to be left, or could be, to an inspector hearing a statutory enforcement appeal.”
Response
Commenting on the High Court ruling, a spokesman for Bath & North East Somerset council said the ruling was “very disappointing” and explained that the council argued action was needed due to “current unregulated development and activities on the site” having regard to its supposedly sensitive location and the concerns of the public.
He said: “It is regrettable that the decision of the local planning authority to take enforcement action has been quashed by the High Court. The council will have to consider the implications of the High Court decision, but does not anticipate appealing the judgement.”
Andy Ridings, who is landowner of the Gazelle Properties site and has now set up Waste Recycling @Bath to develop waste and recycling capacity at the Fuller Earth Works, welcomed the ruling.
He said: “Bath & North East Somerset's enforcement action focussed on very minor points, most of which had already been sorted by agreement. Their action was disproportionate and we are pleased the Judicial Review confirmed that Bath & North East Somerset acted irrationally.”
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