High Court quashes Inspector’s decision to uphold enforcement notice relating to the disposal of waste

01 Jan 2018

Planning and Environment

The High Court has allowed a section 289 appeal against the decision of an Inspector to dismiss an appeal against an enforcement notice. The Appellant had brought waste onto land and deposited there with the intention of using it to construct a road. The enforcement notice alleged that a breach of planning control consisting in the “disposal of waste” had occurred. In the circumstances, the Court held that the Inspector’s finding that the “disposal” of waste had occurred was irrational and the fact that the activity being carried out by the Appellant might have been a “disposal operation” within the meaning of the Waste Framework Directive 2008/98/EC was not a sufficient basis on which to uphold the notice. The Judgment, in Collins v Secretary of State for Communities and Local Government [2016] EWHC 5 (Admin), is a noteworthy application of the principle that requires an enforcement notice to be drafted in such a way that it may be understood by the person to whom it is addressed. The fact that a notice may make sense by reference to technical statutory definitions (such as are contained in the Waste Framework Directive) does not necessarily mean that this requirement is fulfilled.

Jack Parker of Cornerstone Barristers acted on behalf of the successful Appellant, Mr Collins.

Mr Collins had imported rubble onto his land with a view to constructing a road to facilitate forestry operations. The Council, for various reasons, took the view that Mr Collins was disposing of waste on the land and served an enforcement notice on him which alleged “without permission the change of use of land from woodland to (mixed use of woodland and) importation and disposal of waste”.

Mr Collins appealed against the notice on a number of grounds, but in particular on the basis that he was not “disposing” of rubble, and on the contrary, had purchased the material and brought it onto the land with the intention of constructing a road.

The Inspector found that although Mr Collins had always intended to use the material to construct the road, the imported material was technically waste and because there was no evidence that the waste had been “recovered”, the deposit of unrecovered waste was a form of disposal of it, whatever the ultimate intention may have been. As such, the breach alleged in the notice, namely the “disposal” of waste, had occurred.

The Court held that this reasoning was irrational. There was a substantial difference between tipping waste and depositing it temporarily before using it to construct a road. If the local authority considered that it was expedient to take enforcement action against importing and depositing waste pending its re-use, it could and should have said so in its notice. The requirements of a notice must be plain to the recipient, who cannot be assumed to have an expert knowledge of EU waste law and the activity said to constitute a breach has to be specified with some degree of particularity. A reference in the notice to the broad, technically complex and imprecise words of the Directive will not be enough. A notice alleging the temporary deposit of waste might have alerted the appellant to other responses to it in the notice of appeal (for example a ground (a) appeal that planning permission for the deposit ought to be granted for that purpose).

This is an interesting case, which highlights the importance of precise and careful drafting in the preparation of enforcement notices. In particular, where technical or legal expressions are used, care must be taken to ensure that the ordinary meaning of the words used may be understood by the person receiving the notice.

For a copy of the Judgment, please click here.

For further information about this case, please contact Jack, or his practice managers.