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Bath and North East Somerset council loses judicial review over waste site

The landowner of a waste management site has won a Judicial Review over Bath and North East Somerset Council (B&NES) following the local authority’s “irrational” challenge over use of the site.

The judgement saw the court rule in favour of Gazelle Properties and Sustainable Environmental Services (SES), which had been in talks with the council over a possible waste facility on the site. The companies argued against the council’s decision to take enforcement action which alleged that a planning control had been breached because part of the site was unauthorised to be used for general industrial use.

Furthermore, the council had actually earmarked the site, known as the former Fuller’s Earthworks site at Combe Hay, Bath, as a part of the West of England Partnership’s, Joint Waste Core Strategy. This identified a number of sites which may be used for future waste management facilities.

Currently, the site is being used by tenant Waste Recycling @Bath and its sister company Bath Recycling Skips.

It was ruled that the officer’s delegated decision which was taken on the basis that Gazelle was unwilling to negotiate was “irrational”. The council’s decisions were also described as “inconsistent” and “patently wrong”.

This could now see tax payers footing the bill of £200,000 in legal fees.

The battle to clarify the use of the “physical extent of the lawful industrial use” of the site has been ongoing as far back 2003. In February 2009, B&NES divisional director of planning and transport development  DavidTrigwell, had been delegated to take “any necessary action” and issued two enforcement notices: the first required “the permanent cessation of the use of the site”; while the second ordered the demolition of a concrete batching plant. The council said a “material change of use of the land” had  taken place. However, Gazelle found that on several occasions in the past a lawful industrial use of the whole of the site had been used. In 2003, the Secretary of State had ruled that the site may be used for “general industry without the need for planning permission”.

SES had been set up as a special purpose vehicle to tender for the council’s waste contracts. In 2006 the council began searching for suitable waste sites, discussing the possibility of developing a waste facility on the Fuller’s Site on several occasions between 2006 and 2007. In 2008, the council indicated it would be “willing to act with SES as joint applicant for planning permission for such a proposal” but the council’s position on this later changed.

It was judged that “the perversity of this process of decision-making was only compounded by the council’s subsequent decision to allocate effectively the same piece of land for the kind of use that SES was urging in February 2009”.

A statement from B&NES given to the local press states: “The High Court found against the council which is very disappointing. The council argued the need for action to be taken against the current unregulated development and activities on the site having regard to its sensitive location and the concerns of the public.”

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