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Capel incinerator - High Court Judgment  [12/03/2009]

1.                  There are two claims before me.  The first is brought under section 113 of the Planning and Compulsory Purchase Act 2004 (the 2004 Act).  It challenges and seeks to quash the inclusion in the Surrey Waste Plan Development Plan Documents (DPDs) of a site known as Clockhouse Brickworks, Capel as one in respect of which planning permission can be granted for development involving waste disposal or recovery and specifically for thermal treatment, namely incineration, of waste.  The DPDs in question were adopted by Surrey County Council (SCC) on 6 May 2008.  The second is a claim for judicial review of three planning permissions granted by SCC on 9 December 2008 to enable an energy from waste facility to be constructed and put into operation on the site.  That facility is commonly called an incinerator.

2.                  The claim for judicial review relies on a number of matters said to amount to errors of law in the process of reaching and in the terms of the decisions themselves.  Ground 1 asserts that the decisions to grant permission were based upon unlawful policies in the development plan.  It is apparent that, if the claimant succeeds in its s.113 claim, Ground 1 will be established and the planning permission must be quashed.  Thus Sullivan J ordered that Ground 1 be ?rolled up with the pending [s.113] application?.  He also directed that the judge hearing the s.113 claim should consider whether permission should be granted for judicial review.  Since I have decided that the s.113 claim should succeed, it follows, as Mr Drabble Q.C. accepted, that I should grant permission for judicial review on Ground 1. I do so.  I dispense with all procedural steps following such permission and quash the planning permissions.  I need say no more about the claim for judicial review.

3.                  The village of Capel and the site are in the south of the county and in countryside away from the centres of population which are mainly in the north of the county.  The nearest large town, Dorking, is some 6 or so miles away.  SCC has encountered real difficulty in identifying suitable sites for dealing with waste in ways which involve processes other than disposal in landfill.  It is recognised that there is a hierarchy, as it were, of methods of dealing with waste.  These, in order of desirability, are re-use of material, recycling and composting, generation of energy and disposal.  It is perhaps obvious that incineration will merely be a form of disposal unless its main purpose is the production of energy.  Thus in order to place it above disposal in the hierarchy, there must be an ability to generate energy from whatever development may be permitted.

4.                  Although in countryside, the site in question, as its name indicates, contains a brickworks.  There is existing consent for the extraction of clay until 2042 and the brickworks will continue to operate until the clay has been exhausted.  The extraction of clay has resulted in voids and these have been landfilled, permission for which expired in December 2004. There is a condition that the land must be returned to its state prior to any development.  That condition means that it is to be treated as a Greenfield site and it is upon that part of the site that it is proposed that an incinerator be built.  It is also an SSSI, based on geological features, and is close to another SSSI which, as I understand it, comprises a wooded area.  In addition, there is a colony of Great Crested Newts which needs to be protected and which would, it was contended, be disturbed by any proposed development.

5.                  The SCC?s decision depended upon recommendations made by inspectors appointed by the Secretary of State.  As will become apparent when I set out the relevant statutory provisions, Section 20(1) of the 2004 Act requires that every DPD be submitted to the Secretary of State for independent examination.  The Secretary of State must appoint a person (an inspector) to carry out that examination, the purpose of which is to determine in respect of the DPD:-

?(a) whether it satisfies the requirements of sections 19 and 24(1), regulations under section 17(7) and any regulations under section 36 relating to the preparation of DPDs;

(b) whether it is sound.? (s.20 (5)).

The inspector must make recommendations and give reasons for them (s.20 (7)).  S.23 provides that the authority may only adopt a DPD in accordance with the recommendations of the inspector.  Since the attack was on the inspectors? recommendations (there were two appointed since the hearings took place on days between 13 February and 24 September 2007 and the inspector first appointed was at one stage unable to continue on his own so that a second was appointed to assist him with some of the subsequent hearings: the report produced on 20 December 2007 was prepared and signed by both), I inquired whether the Secretary of State had been served with this claim. I was informed that that had been done and that the Secretary of State had decided not to take any part, no doubt being content to rely on the arguments presented by SCC in endeavouring to uphold the inspectors? decision.

6.                  Section 15 of the 2004 Act requires a local planning authority to prepare and maintain a scheme to be known as a local development scheme. The scheme must inter alia specify which documents are to be local development documents (LDDs) and DPDs, and must be prepared in accordance with ?such other requirements as are prescribed? and must be submitted to the Secretary of State ?at such time as is prescribed or as the Secretary of State (in a particular case) directs?: s.15 (2) (c) and (3) (a) and (b).  Section 16 requires a county council to prepare and maintain what is known as a minerals and waste development scheme (MWDs), to which (with some exceptions which are not material for the purposes of this claim) section 15 applies as if it were a local development scheme. (S.16 (1), (2) and (3)).  Section 17 provides for the identification of LDDs, which can only be such if adopted by the council and approved by the Secretary of State.  An LDD is a DPD if it forms part of the development plan (s.37 (3)) and a policy contained in it will prevail in the event of any conflict.  The importance of DPDs is to be found in s.38 of the 2004 Act which provides that the development plan is the DPDs taken as a whole which have been approved or adopted (s.38(3)) and by 38(6) that:-

?If regard is to be had to the development plan for the purpose of any determination to be made under the Planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.?

The importance of this in a plan led system which the Planning Acts impose is obvious.

7.                  Section 18 of the Act requires the authority to prepare what is labelled a statement of community involvement, namely a statement of the policy as to the involvement of persons who appear to the authority to have an interest in matters relating to development in this area.  This cannot be adopted unless an inspector so recommends and so has to be considered by the inspector. (See ss.18 (1), (2), (4) and (6).

8.                  Section 19 is of some importance.  It dealt with preparation of LDDs.  I use the past tense because it (and indeed other relevant sections of the Act) has been amended by the Planning Act 2008.  But I have to consider the Act as it applied at the material time and so in its unamended form.  Section 19(2) sets out a list of matters to which the relevant authority must have regard in preparing a LDD.  These include:-

(a) national policies and advice contained in guidance issued by the Secretary of State.

(f) the community strategy prepared by the authority.

(h)any other LDD which has been adopted by the authority.

(j) such other matters as the Secretary of State prescribes.

The authority must also (s.19 (5)):-

?(a) carry out an appraisal of the sustainability of the proposals in each document;

(b) prepare a report of the findings of the appraisal.?

And regulations may provide for the preparation of other documents and for their contents (s.19 (6).

9.                  Mr Village submits that the provisions of the Act show that the development plan documents which include LDDs or DPDs forming part of the adopted policies, must themselves be sound.  The system now in place requires the policies to be independently examined and approved or otherwise by an inspector.  Unless they have gone through this process, they cannot be relied on as a development plan and so will not be able to be given the status indicated by s.38 (6) of the Act.  That submission is clearly right and that is a reason why the planning permissions cannot survive the successful challenge to the adoption of the policies including Clockhouse Brickworks as one appropriate for the relevant waste disposal purposes, in particular incineration or what the jargon describes as energy from waste (EfW) or thermal treatment of waste.

10.              Some additional requirements have been prescribed in regulations.  Those are the Town and Country Planning (Local Development) (England) Regulations 2004 (SI 2004 No.2204).  Regulation 6(1) provides, so far as material:-

?The descriptions of document prescribed for the purposes of s.17 (1) (a) which must be specified as LDDs in a local development scheme are ?

(a)               any document consisting of statement of ?

(i)      the development and use of land which the local planning authority wish to encourage during any specified period ?.

(ii)    any environmental, social and economic objections which are relevant to the attainment of the development and use of land maintained in paragraph (i);

(iii)   the authority?s general policies in respect of the matters referred to in paragraphs (i) to (iii).?

The documents referred to in 6(1) are referred to as a core strategy (6 (3)). Regulation 7 provides:-

?Documents which must be DPDs are ?

(a)         core strategies ?

(c) any other document which includes a site allocation policy.?

Regulation 3(1)(b) provides that (with immaterial exceptions) they apply to a minerals and waste development scheme as if it was a local development scheme and references to a local planning authority include references to a County Council within the meaning of s.16(1) of the 2004 Act.

11.              The Secretary of State has issued guidance in the form of PPS 12 to which regard must be had in accordance with s.19 (2) (a) of the 2004 Act.  The guidance was amended in June 2008 because, as will become apparent, it contained a materially inaccurate statement amounting to an error of law.  But the inspectors applied the guidance as it existed at the time.  They cannot be criticised for that, but it has in my judgment meant that the particular recommendation cannot stand.

12.              PPS12 sets out, as the introduction states, the Government?s policy on the preparation of LDDs which will comprise what it calls the local development framework.  Paragraph 1.3 sets out the aims.  It provides:-

?Local development frameworks are intended to streamline the local planning process and promote a proactive, positive approach to managing development.  The key aims of the new system are:

i.                     Flexibility.  Local planning authorities can respond to changing local circumstances and ensure that spatial plans are prepared and reviewed more quickly than development plans under the old system;

ii.                   Strengthening community and stakeholder involvement in the development of local communities.  Local communities and all stakeholders will be involved from the outset and throughout the preparation of local development documents.

iii.                  Front loading.  Local planning authorities should take key decisions early in the preparation of local development documents.  The aim will be to seek consensus on essential issues early in the preparation of local development documents and so avoid late changes being made;

iv.                 Sustainability appraisal.  To ensure that local development documents are prepared with the objective of contributing to the achievement of sustainable development;

v.                   Programme management.  The efficient management of the programme for the preparation of a range of local development documents in accordance with the local development scheme; and

vi.                 Soundness.  Local development documents must be soundly based in terms of their content and the process by which they are produced.  They must also be based upon a robust, credible evidence base.

The need to include consideration of access issues is identified in Paragraph 1.12.  Under the heading ?The Core Strategy? Paragraph 2.9 provides:-

?The core strategy should set out the key elements of the planning framework for the area.  It should be comprised of a spatial vision and strategic objectives for the area; a spatial strategy; core policies; and a monitoring and implementation framework with clear objectives for achieving delivery.  It must be kept up-to-date and, once adopted, all other development plan documents must be in conformity with it.  The core strategy should normally be the first development plan document to be produced, except where the local planning authority has up-to-date saved policies (see paragraphs 5.3-5.5) and where the priority in the local development scheme is the preparation of an area action plan or other development plan document.

And all DPDs must be ?subject to rigorous procedures of community involvement, consultation and independent examination to test the soundness of the document ?.? (Paragraph 2.7).

13.              Mr Village submits that it is implicit in Paragraph 2.9 that the core strategy should come first and should be submitted to an inspector before the further documents which will deal with specific allocations and particular development control are produced.  The sense of that is obvious.  If the core strategy is not sound in any respect, it will be impossible to produce a site specific DPD which is itself sound to the extent that it accords with an unsound core strategy.  Unfortunately, SCC chose not to follow this course and so the inspectors had to deal with the whole of the Surrey Waste Plan (SWP), both strategy and allocation, at the same time.  They were unhappy with this.  At one stage of the examination they indicated that they might report on the Core Strategy separately, but in the end they decided to treat the whole SWP as having three functions, as Core Strategy, Waste Development and Waste Development Control DPDs.  In paragraph 1.8 of their report, (paragraphs in the report will hereafter be referred to as IR and the relevant number) they criticise SCC?s approach in that it was not prepared in accordance with the requirements of the scheme.  In particular, strategic and non-strategic material was not readily distinguishable (IR 2.2).  But because of the ?urgency to adopt a set of coherent policies to redress long running uncertainty in planning for the management of waste in Surrey? and in order to avoid delay, they decided to ?continue with a single process of independent examination of the SWP?. (IR 2.3).

14.              PPS12 makes clear that there must be early and continuing involvement of those likely to be affected by DPDs in the process of preparing them.  The process must ?include consideration of all the alternative options derived from the development of the evidence base, the authority?s awareness of local issues, the views of stakeholders and community involvement?. (Paragraph 4.2).  The paragraph concludes:-

?Key decisions on the spatial strategy should be taken at the earliest possible stage to allow for full community involvement and sustainability appraisal.?

In MWDs, the core strategy may be equated to the spatial strategy.  While the language may be less than ideal and is permeated by jargon, the approach advocated is apparent.  And Paragraph 4.3 underlines the importance of ?front loading?, namely community involvement, in dealing with site allocations so that all who have a real interest have had a say on the suitability of any sites put forward.

15.              Paragraph 4.24 is most important.  It provides  as follows:-

?The presumption will be that the development plan document is sound unless it is shown to be otherwise as a result of evidence considered at the examination.  The criteria for assessing whether a development plan document is sound will apply individually and collectively to policies in the development plan document.  A development plan document will be sound if it meets the following tests:

Procedural

i.                     it has been prepared in accordance with the local development scheme;

ii.                   it has been prepared in compliance with the statement of community involvement, or with the minimum requirements set out in the Regulations where no statement of community involvement exists;

iii.                  the plan and its policies have been subjected to sustainability appraisal;

Conformity

iv.                 it is a spatial plan which is consistent with national planning policy and in general conformity with the regional spatial strategy for the region or, in London, the spatial development strategy and it has properly had regard to any other relevant plans, policies and strategies relating to the area or to adjoining areas;

v.                   it has had regard to the authority?s community strategy;

Coherence. Consistency and effectiveness

vi.                 the strategies/policies/allocations in the plan are coherent and consistent within and between development plan documents prepared by the authority and by neighbouring authorities, where cross boundary issues are relevant;

vii.                the strategies/policies/allocations represent the most appropriate in all the circumstances, having considered the relevant alternatives, and they are founded on a robust and credible evidence base;

viii.              there are clear mechanisms for implementation and monitoring; and

ix.                 the plan is reasonably flexible to enable it to deal with changing circumstances.?

The numbered tests are each specifically considered in the inspectors? report and their overall view is that they are all met, subject to a number of modifications of a relatively minor nature.

16.              The first sentence of Paragraph 4.24 incorporates the error of law.  There is no presumption of soundness.  In Blyth Valley BC v Persimmon Homes (Nth) Ltd & Others [2005] EWCA Civ 861 the Court of Appeal considered the role of an inspector and whether soundness could be presumed.  It noted that PPS12 had been amended so that the offending sentence had been removed and there had been substituted:

?The starting point for the examination is the assumption that the local authority has submitted what it considers to be a sound plan.?

Counsel in that case accepted that the inspector had an inquisitorial role and was entitled to find that a policy was unsound even if there was no convincing evidence to that effect from an objector.  In paragraph 40, Keene LJ, who gave the only reasoned judgment, said this:-

?For my part, I find it difficult to accept that the two versions set out above have the same meaning, but that probably does not matter.  The appellant accepted orally that the inspector has a role which is at least in part inquisitorial and Mr Porten conceded that the inspector could reject a policy without there being evidence from objectors that it was unsound.  It seems to me that the inspector in the present case was misled by the wording of PPS 12 as it then stood into applying a true presumption of soundness of the kind which is found elsewhere in the 2004 Act in section 38(6), where a particular result to follow ?unless material considerations indicate otherwise.? That is not what section 20(5) is providing for when soundness is being investigated.  It is couched in neutral terms and its effect is more appropriately reflected in the later version of PPS 12.  The Secretary of State does not seek to defend any presumption of soundness when a policy is being considered at an independent examination.  Thus it may in a sense be understandable that the inspector adopted the approach he did, but in my judgment he was wrong to do so and that error in his approach to the issue under section 20(5) also vitiates his recommendation on policy H4.?

17.              It was therefore incumbent on the inspectors to consider for themselves whether the policies are sound.  Thus they would have not only to consider any specific points made by objectors but also any material matters which could indicate unsoundness.  This would, in relation to specific allocations, include consideration of whether the process whereby the sites were chosen and others said to be more appropriate rejected was satisfactory.  Equally, in the context of this case where it was accepted that Clockhouse Brickworks was by no means ideal ? quite the contrary since an incinerator on a Greenfield site in the countryside was obviously likely to be regarded as an undesirable development ? the inspectors? consideration should have required a rigorous examination of any suggested alternative sites and of whether in reality an incinerator alternative to landfill was achievable.  This is apparent from the fact that the sites other than Clockhouse Brickworks for the construction of an incinerator were in the Green Belt.  In addition, in dealing with site specific alternatives, PPS 12 by paragraph 2.15 emphasises the need for a ?robust and credible assessment? of the suitability of the site, its availability and its accessibility for the particular uses or mix of uses.

18.              The right to apply to this court is provided for in s.113 of the 2004 Act.  It provides the only way to challenge a relevant document (s.113 (2)).  Section 113(3) is in the usual form.  It states:-

?A person aggrieved by a relevant document may make an application to the High Court on the ground that ?

(a)               the document is not within the appropriate power;

(b)               a procedural requirement has not been complied with.?

If the court is satisfied that a relevant document is to any extent outside the appropriate power or that the interests of the applicant have been substantially prejudiced by any procedural failure (s.113 (6)), it may quash the relevant document wholly or in part (s.113 (7)).  The policies under attack will not have been within the appropriate power if the recommendation made by the inspectors which led to its incorporation in the relevant document was itself legally flawed.

19.              The policies in question are first in what is to be regarded as the Core Strategy.  That notes (Paragraph A5) the availability of void space for landfill and that Surrey has for some years dealt with waste from London as well as exporting some of its own waste.  It identifies the requirement of the Waste Framework Directive that wastes should be disposed of ?as close to the source of waste as possible?.  That only relates to disposal: recovery by means of reclamation, recycling or extraction of value from the waste are not covered by this principle.  Reference is made to the Waste and Emissions Trading Act 2003 under which authorities will suffer financial penalties for each tonne of waste landfilled in excess of the allowance set by the Government.  This obviously drives the need to find means of dealing with waste other tha