COURT OF APPEAL QUASHES PLANNING PERMISSION FOR DEPOSIT OF LARGE QUANTITY OF WASTE ON GOLF COURSE

R (The Friends of Basildon Golf Club) v Basildon District Council and Basildon Golf Centre Ltd

The Court of Appeal has quashed the controversial grant of planning permission for the ‘remodelling' of a golf course in Basildon by the importation of hundreds of thousands of tonnes of waste material. The court held that the Council's ‘Screening' decision that Environmental Impact Assessment would not be required resulted from an erroneous  consideration of the quantities of waste to be imported, and an inadequate assessment of the potential implications of the deposit of waste material. The court also held that in reaching its Screening decision the Council had failed to consider properly the potential for impact upon European and other protected species, in circumstances whereby ecological consultants had recommended that various species surveys should be carried out, but the Screening decision was taken before those surveys could occur. The court held that it was inadequate for the Screening decision to conclude that EIA was not required, and then refer to the fact that detailed ecological surveys and proposed mitigation strategies would be provided by the developer at a later stage. This is a very unusual example of a court holding that a local planning authority's Screening decision was wrong in substance.

Charles George QC and Jeremy Pike of Francis Taylor Building (instructed by Tilbrooks, Basildon), appeared for the Friends of Basildon Golf Course in the Court of Appeal; Jeremy Pike appeared for the Friends in the High Court.

The Friends were a group of local residents who opposed the grant of planning permission by the Council for development upon land owned by the Council. The development, which the Friends argued should have been referred to the Essex County Council as waste planning authority, was to be undertaken by the Council's development partner, a subsidiary of Jack Barker Golf Ltd. A number of similar schemes to remodel golf courses by the importation of waste material have caused significant controversy in various parts of the country. The Basildon scheme has been the subject of criticism in parliamentary debate.

Because the court held that the EIA Screening decision was inadequate, it did not determine the two other grounds of challenge, although members of the court did express interesting views on those grounds. Pill LJ observed that a local planning authority did have the power to revisit an EIA Screening decision if a material factor came to light which suggested that the earlier decision might have been wrong, "querying" the correctness of a decision of the High Court (R (Fernback) v Harrow LBC [2002] Env LR 10) which held to the contrary. Carnwath LJ agreed with Pill LJ that it was not necessary to go behind the decision of the Council that the development was not a ‘County Matter' and should not be determined by the County Council, but observed that he was "unclear as to what golfing purpose required the importation of such large quantities of material". Rimer LJ agreed with both judgments.

As well as the Court of Appeal being prepared to hold that the Council's Screening decision was wrong in substance, the case is notable for other reasons. Unusually, during the High Court hearing Jeremy Pike was permitted to cross-examine the Council's Planning Officer on his consideration of whether the development was wholly or mainly a waste operation. That cross-examination led the Planning Officer to accept that his Screening opinion had referred to a figure for the quantity of waste to be imported which was three times smaller than the correct figure. In addition, after the decision of the High Court the Friends discovered the existence of several  ecological reports and other documents commissioned by the Council, which had not been disclosed during the high court proceedings. The Court of Appeal allowed those reports to be adduced as new evidence in the appeal, and their contents informed the court's decision that the Screening decision was irrational.