Applicant purchasing waste-processing plant – Previous owner applying to amend condition attached to planning permission to enable generation of electricity – Respondents’ sub-committee resolving to amend condition – Applicant seeking to implement consent to generate electricity at site – Respondent contending specific planning consent required – Whether sub committee making valid determination – Town and Country Planning Act 1990 section 64 – Applications allowed
Reprotech (the applicant) occupied land at Pebsham, East Sussex, upon which it owned and operated a waste-processing plant. The respondent councill were the local planning authority. The applicant’s intention was to use those parts of the waste, which could be used as fuel, for the generation of electricity at the site. In 1984 the council set up a waste-disposal company (ESEL) and granted it permission to develop the site as a “waste treatment plant and household waste site”, subject to condition 10, which restricted the hours of power-driven machinery. ESEL decided to sell its operation and, in January 1991, applied for planning permission to amend condition 10, so as to enable 24-hour use of a turbine for electricity generation at the site. On 27 February 1991 the council’s sub-committee resolved to amend the condition, subject to the submission of a satisfactory noise-attenuation scheme. Subsequently, the council accepted and approved the sub-committee’s resolution. In July 1992 the applicant purchased ESEL’s interest in the land and the processing plant, and the following year wrote to the council, referring to the time when they would ultimately implement the existing consent to generate electricity on the site. Correspondence followed, and in March 1998, the council set out their view that neither the existing permission nor the subsequent variation of a condition granted, permitted the generation of power from waste, which required specific planning consent. The applicant brought two applications, which were consolidated. First, for declarations, notably that the respondent had made a determination under section 64 of the Town and Country Planning Act 1990 and, second, for judicial review. The applicant’s primary submission was that the application, the decision and resolution on 27 February 1991 was clearly a section 64 determination of the question whether planning permission was needed for the process of generating power from waste and that it was in the sub-committee’s competence to do so. It was submitted by the applicant that the fact that there was a failure to notify the decision and, in reliance upon Wells v Ministry of Housing and Local Government [1967] 1 WLR 1000, the fact that there was no formal reference to a section 64 application, did not mean that there was not a valid determination.
Held: The applications were allowed.
