Planning permission — Landfill site — Restoration to woodlands — Whether redevelopment and regeneration would amount to demonstrable harm — Whether new point can be raised in Court of Appeal
The site
consisted of a disused colliery previously used for coal washing purposes. The
local planning authority refused HJB planning permission to use the site for a
period of up to 12 years for landfill with waste, and its restoration to
woodland and grassland. On appeal the Secretary of State for the Environment, by
his inspector, upheld the decision of the local planning authority on the
grounds, inter alia, that although there was a need for a landfill site,
the damage that the proposal would cause outweighed the need. In the court
below it was held that the inspector had failed to take into account the
benefit which would be derived from the scheme proposed by HJB and that this
benefit would happen within a short time. The Secretary of State appealed
against that decision. HJB in filing a respondent’s notice raised a point not
considered in the court below.
consideration.
There are
exceptional situations where the Court of Appeal will take into consideration
new matters not raised before. It is perfectly proper and a matter of
discretion for the Court of Appeal to allow points to be argued before them if
the material will enable those matters properly to be considered: see p51. The
inspector had not erred. There was ample material for him to come to the
conclusion which he did. There is no obligation on the inspector to try and
carry out a survey of all sites which may have the potential to be used for
landfill, and see whether any of them are more suitable or less suitable: see
p57. The inspector was entitled to concentrate on the time when restoration
works were finally concluded after any industrial activities on the site had
finished, and not on what might be happening by way of restoration while those
very substantial activities were continued. This decision was taken on its own
facts and should not be thought to have any wider implications: see p59.
to in the judgments
Donaghey v O’Brien & Co [1966] 1 WLR 1170; [1966] 2 All ER 822,
CA
Manuel
Misa v Raikes Currie, Grenfell and Glyn (1876)
1 HL (E) 554
Trusthouse
Forte Hotels Ltd v Secretary of State for the
Environment (1986) 53 P&CR 293; [1986] 2 EGLR 185; 279 EG 680; [1986]
JPL 834
Appeal against
the decision of Judge Rich QC (sitting as a judge of the Queen’s Bench
Division)
This was an
appeal against the decision of Judge Rich QC (sitting as a judge of the Queen’s
Bench Division) allowing HJ Banks & Co Ltd to quash a decision of the
Secretary of State for the Environment refusing them planning permission for
the purposes of using land for waste tipping and then to restore it to woodland
and grassland.
(instructed by the Treasury Solicitor) appeared for the appellant, the
Secretary of State for the Environment.
Horton QC, Neil King and Rupert Warren (instructed by Aaron & Partners, of
Chester) appeared for the respondents, HJ Banks & Co Ltd.
respondents, British Coal, did not appear and were not represented.
following judgments were delivered.
LORD WOOLF
MR: This is an appeal from a decision of Judge Rich
QC (sitting as a judge of the High Court) given on October 24 1995. His
decision related to an application of HJ Banks & Co Ltd, together with
British Coal, to quash a decision of the Secretary of State for the Environment
refusing planning permission which would permit the restoration of land at
Nailstone Colliery, Wood Road, Nailstone, to informal recreation and industrial
use by infilling with control waste.
The decision
was that of the Secretary of State. However, in his decision letter, the Secretary
of State merely repeated the recommendations of the inspector contained in a
lengthy report, and accepted the inspector’s recommendation. Accordingly, for
the purposes of the present appeal it is not necessary to do more than look at
the inspector’s report.
The judge
allowed the application. He did so on one of the four grounds which was
advanced before him. The Secretary of State now appeals to this court saying
that the judge was wrong in allowing the application to him, and asking for
that decision to be set aside. The applicants for the planning permission filed
a respondent’s notice relying again on the three grounds of their original
application on which they were unsuccessful (in addition to relying on the
decision of the judge), but also relying on a fresh ground which was not relied
upon in the court below. Mr David Holgate, who appears on behalf of the
Secretary of State, having considered the question of that fresh ground, did
not feel it right to oppose this court taking that fresh ground into account in
considering the appeal. The question of raising a matter which has not been
considered by the court below on appeal to this court, is always a matter where
this court is concerned that the right of appeal should not be abused by
opening up in this court for the first time matters which could have more
satisfactorily been explored in the court below. Because of that we asked
counsel for their assistance as to what previous authority existed on this
matter.
Mr Matthew
Horton, who has appeared on behalf of the applicants in this court but did not
appear below, referred us to the decision of the House of Lords in the case of Manuel
Misa v Raikes Currie, Grenfell and Glyn
was in order to introduce new matter even though it was not considered in the
court below, but it is clear that that was said in the context where the
appellate court would not be at any disadvantage if that happened. Mr Holgate
referred us to the case of Donaghey v O’Brien & Co [1966] 1
WLR 1170 where it was agreed that, although particular interpretation of the
regulations there under consideration had not been considered in the court
below, it was proper for that matter to be considered on appeal.
Speaking in
general terms, and recognising there are always going to be exceptional
situations, it seems to me that, although this court should be cautious to
avoid encouraging points to be taken for the first time in this court, it is
perfectly proper for this court, as a matter of discretion, to allow points to
be argued before us, if the material is before this court to enable those
matters properly to be considered. In relation to the point which Mr Horton
wishes to raise on this particular appeal which was not raised in the court
below, that appears to me to be the position. It also seems to me desirable
that we should express an opinion upon the point because, if we do not do so,
it will leave an area of uncertainty in relation to planning matters of this nature
which would be undesirable, because there are likely to be other appeals where
the same point will arise.
Accordingly,
in considering the merits of the appeal, I propose to deal with the new point.
In order to do so, it is necessary to refer to certain passages in the
inspector’s report and to understand something of the history of the site.
The site is an
old colliery which is no longer being used as such. For that reason it is
capable of performing a useful function by being used for tipping waste for the
purposes of land filling. It had been used prior to the present application for
coal washing purposes and, in conjunction with that use, a scheme of
restoration had been required to return the former site of the colliery to
woodland and grassland. The proposal which was being made by the applicants was
that they would use the site, prior to the completion of the restoration, for
landfilling purposes, but then complete the restoration and, what is more,
complete the restoration to a higher standard from an environmental point of
view than existed previously. In addition they would carry out a substantial
part of the restoration work, including the planting of trees both on the site
and on adjoining land, within the relatively short period of two years.
It was their
case that, although they were going to use the site for landfilling purposes
for a period of up to 12 years, there would be benefits which would offset this
which make it advantageous for the work to be carried out in accordance with
their proposals.
Two policies
apply to the proposals which are particularly important. One is L/WD4, which
deals with waste disposal and other community services. That sets out seven
criteria which should be considered when proposals for landfill operations are
being made. The first of those is the need for further landfill capacity; the
second is the opportunity provided by landfill in restoring the site to
beneficial after use; the third, the methods of infill and suitability of
materials for the proposed after use; the
geological or other environmental resources; the fifth, the adequacy of
appropriate pollution control arrangements; the sixth, the avoidance of
conflict with adjacent land users; the seventh, the impact of traffic on
highways and local access.
In his very
full report the inspector considered the criteria individually. He came to the
conclusion that there was a need for additional capacity to meet the waste
disposal requirements of north west Leicestershire, and that the Nailstone site
could meet that need. That is referred to in para 270 of the report, so that
dealt with criteria one.
In relation to
the other six criteria to which I have referred, I do not propose to read out
the various paragraphs in which the inspector deals with them, but deal with
them in turn as he did. He comes to the conclusion — and I will just give
examples of the sort of expressions that he used, that the way it was going to
be done would ‘keep the problem to a minimum’; ‘keep the problem to an
acceptable level’; ‘minimise any problems of odour’; ‘greatly reduce any
nuisance from birds’; ‘the road network serving the site would not be
overloaded’. With regard to the traffic he says again, ‘I do not think it would
have a significantly adverse affect on the amenities of the local residents’;
‘in the circumstances the traffic would not have an unacceptable impact’.
What he is
saying in those paragraphs, as I understand them (and they are very clear in
their language) is that, although there is going to be some impact on the
environment in the locality of the landfill proposals, that is going to be kept
to acceptable levels. It seems to me logical, in view of his conclusions with
regard to that particular statement of policy, that if there had not been the
other policy to which I must now refer, the inspector’s recommendation would
have been in favour of the grant of the planning permission. However, the other
policy is a policy which is contained in the Leicestershire structure plan. It
provides (p87):
The County
Council, in meeting the needs of new development and tackling the most critical
economic, environmental and other problems within the County, will pursue a
planning strategy which:
(i)
identifies inner Leicester and the mining areas of north west Leicestershire as
Priority Areas where appropriate support and encouragement particularly for
redevelopment and regeneration will be focused …
The inspector
then recommended that planning permission should be refused because, although
he accepted the need, he was not prepared to regard the planning application as
being acceptable because it conflicted with the policy to which I have just
referred, the colliery being one of the priority areas which needed the
appropriate support and encouragement for redevelopment and regeneration.
Having made
those introductory remarks, I can turn to the critical paragraphs of the
inspector’s report in relation to which the outcome of this appeal depends.
I can start
for this purpose at para 291. That recites:
Police L/ST1,
sets out that the County Council in meeting the needs of new development and
tackling the most critical economic, environmental and other problems within
the county has, inter alia, identified the mining area of north west
Leicestershire as a Priority Area where appropriate support … must apply.
He goes on in
para 292:
There can be
no doubt that the Nailstone area has suffered to a very considerable degree
from the effects of mining and its subsequent decline. The appeal site was
established as a pit in 1865 and finally closed in 1991. In 1989 the appellant
[HJ Banks] was granted planning permission to recover coal from the existing
waste heap on the site by a washing process. The operations started in April
1992 and finished in September 1992. The permission required the land used for
the tip washing operation to be restored to woodlands and grassland. A good
deal, but not all of the restoration work has been carried out.
Para 293:
In view of
the past history and current situation of mining in the locality it seems to me
that the restoration of the tip washing site can reasonably be considered as
being a step towards the regeneration of the area and can therefore be
considered as an early stage of the implementation of the policy for the
Priority Area.
So the
inspector is there saying, ‘If I do not grant the planning permission, what is
going to happen is an early stage of the implementation of the policy statement
to which I just referred’.
I note that
there may be some difficulties in achieving the degree of tree planting assumed
in the Tip washing restoration scheme but although I accept that the appeal
restoration proposals would be better in the long term, nevertheless, it seems
to me to be reasonable to expect that a satisfactory scheme would be achieved
from the approved Tip Washing Restoration.
Pausing there,
the base from which the succeeding paragraphs proceed is a base where the
position is satisfactory. He continues:
The appeal
proposals would delay the final restoration of the site by up to 12 years.
I emphasise
there that he uses the word ‘final’, clearly bearing in mind that, under the
proposals, there would be substantial restoration work carried out within two
years, as he indicated earlier in his report. He continues:
I note that
the appellants claim that only 13.8 hectares of land which would be grassed by
1995 under the tip washing restoration scheme, would not be restored until the
end of the twelve year waste disposal operations.
Pausing for a
moment, he is there indicating that he recognises that it is only a small area
of the total covered by the colliery which is going to be affected over the
period of 12 years. He adds:
… and that
land [the 13.8 ha] would not be visible from existing viewpoints. However, it
would be perfectly obvious in the neighbourhood, during the operational period,
that the site was being used as a large landfill site. In my view that would
have a serious and deleterious effect on the regeneration of the area and would
be a serious breach of Policy L/ST1 which designates the area in which the
appeal site lies as a Priority Area where support and encouragement for the
redevelopment and regeneration will be focused. I consider that such a breach
in this case would amount to demonstrable harm to an interest of acknowledged
importance.
We have heard
a considerable amount of argument about that paragraph, as did the judge in the
court below. But it seems to me that the paragraph is clear as to what it means
(when he says in the sentence beginning with ‘however’) that that would have a
serious deleterious effect on the regeneration of the area. He is referring
back to what is said earlier, that it would be perfectly obvious in the
neighbourhood during the operational period that the site was being used as a
large landfill site. He was therefore indicating that what he was relying upon
as having a serious and deleterious effect on the regeneration, was the
operational period when the site was being used as landfill. I continue with
the final paragraph:
Although I
accept that there is a need for further landfill sites in North West Leicestershire
I do not consider that in this case it is sufficient to override the damage
that the proposed development of the appeal site would be likely to do to the
redevelopment and regeneration of this part of the North West Leicestershire
Priority Area.
The decision
of the judge to allow the appeal to him turned on the final paragraph. The
learned judge, having dealt very carefully with the previous arguments, came to
the conclusion that, at the last fence, the Secretary of State failed because
of the language contained in para 295. What the inspector is saying in para
295, as I understand it, is that: ‘I have accepted there is a need for a
landfill site. However, the damage which is involved in the proposal outweighs
the need’. That is very much a matter of judgment; a matter which is one for
the inspector and not for a judge. Why then did the judge think that the
inspector had gone wrong?
The judge
found, as is submitted to this court, the inspector had gone wrong because,
when he had been considering the damage, he had omitted to take into account,
first of all the additional benefit which would be derived from the scheme
proposed by the applicants, and second, that some of that benefit (or again I
would say a substantial part of that benefit) would happen relatively rapidly.
The judge found that argument acceptable. I do not. If you read this letter as
a whole and the paragraphs as a whole, it is absolutely obvious to me that in
the earlier para (294)
it was not going to be the whole restoration which was going to be left for 12
years, but only the final restoration, and that it was not the whole site but
only part of the site. Here the judge fell into error in being too scrupulous
in seeking to construe the inspector’s reasoning and not reading the letter as
a whole. I would, on that ground, not accept Mr Horton’s argument that the
judge was right.
What are the
other arguments? I can deal with them fairly shortly because, with respect to
the skill with which Mr Horton has advanced his case, I do not consider that
they have any substance, and I largely accept the reasoning of the judge in
relation to these arguments which he considered.
Mr Horton is
concerned by the fact that in para 294 the inspector has said that what is
proposed would have a serious and deleterious effect on the regeneration. He
asked first of all: where is the evidence to support that? I would accept Mr
Holgate’s submission that this was a matter largely for his judgment, having
heard the evidence which he did. However, having regard to the way he dealt
with the criteria which are set out in the policy L/WD4, it is clear that the
continuous operation of the site for landfilling purposes would be something
which would be, to use the inspector’s words, ‘perfectly obvious in the
neighbourhood’. It would generate an acceptable degree of traffic, but a large
amount of traffic. I do not propose to go through the items again, because each
one is indicating that while, if it was not for policy L/ST1, what was proposed
might be acceptable, it was still going to have an impact on the neighbourhood.
Again, reading the letter as a whole, it is clear, in my view, what the
inspector is saying is that there is ample evidence to support his decision
and, furthermore, I have no difficulty with the inspector’s reasoning. As to
the criticism of the decision on the basis of its reasoning, I would reject
this.
Mr Horton did,
however, submit in his helpful submissions on this point, that the problem from
his client’s point of view is that, if this is right, that would mean that,
wherever they seek to do landfilling, the same problem would arise. There would
always be some deleterious effects and, if a policy of this sort applied, this
case could be used as a precedent to refuse permission elsewhere.
Considerable
circumspection needs to be exercised, where a decision of an inspector in one
planning case is sought to be relied upon in another planning case. The facts
of each case will always differ to some degree, and if you have not had the
advantage (which this inspector had) of conducting this planning inquiry, it is
very difficult to get a proper grasp of the issues in the planning inquiry, the
result of which is being sought to be relied on in another inquiry. To regard
this decision as anything more than a decision on its own facts, would,
certainly in the majority of situations, be something which should not be done
without considerable care being exercised.
There is also
a submission of a very similar nature made, which is described as issue three
in the respondent’s notice. It is in these words and is very similar to those
to which I have previously referred:
did the
learned judge err in law in upholding the inspector’s conclusion that a
suitable site for landfill would be perfectly obvious and thereby was
sufficient evidence upon which to conclude that the proposals would have a
serious and deleterious effect on the redevelopment and regeneration of the area?
For the
reasons that I have already indicated, it seems to me that there was ample
material for the inspector to come to the conclusion which he did. It was a
matter for him to come to that conclusion and, like the judge, I would not
regard that as a matter upon which the applicants can succeed. I would adopt
the reasoning of the judge in regard thereto.
There is a
similar argument advanced by Mr Horton with regard to the 12-year period. But
again it seems to me that is a matter for the judgment of the inspector. I
therefore turn, finally, to the issue of need which is the new argument which
was not advanced in the court below.
There was
evidence before the inspector which showed the capacity which existed at the
time that he was considering the matter of permitted landfill of the sort which
was proposed for by the applicants. There was also evidence before the
inspector which indicated that that capacity was inadequate to meet the demand
which there was for landfill sites of this sort. Landfill sites are very
important because waste has to be disposed of somewhere, but the inspector came
to the conclusion (in para 295) that he should weigh the damage against the
need. He did so and came to the conclusion that the damage exceeded the need.
Mr Horton
submits he may have done that, but he did not take into account the problems
that would arise if he came to such a decision because somewhere else would
have to be found to fulfil the need if this site was not going to be used for
that purpose. In my judgment, in a case of this nature there is no obligation
on the inspector to try and carry out a survey of all sites which may or may
not have the potential to be used for landfill, and see whether or not any of
them are more suitable or less suitable than this site. This inquiry lasted a
great number of days. It would have lasted much longer than that if the
inspector was obliged to carry out such an exercise. It is true that the county
council made some general observation to the effect that there was suitable alternative
sites. They did not identify the sites which they said would achieve this
purpose, and the position was that the inspector had only the most general
evidence before him to carry out that sort of operation. In my judgment, he
would have been unwise to embark upon it.
We were
referred to the case of Trusthouse Forte Hotels Ltd v Secretary of
State for the Environment (1986) 53 P&CR 293. In that case Simon Brown
J (as he then was) gave some helpful indications as to the approach which
should be adopted. The headnote is sufficient for my purposes where it states:
While it was
generally desirable that a planning authority should identify that possibility
…
That is the
possibility that:
… an accepted
need could be met elsewhere than upon the application or appeal site without
reference to any specific or alternative site … it would not always be
essential or appropriate to do so. Where the planning objections related
essentially to the development of the application site itself rather than to
some intrinsically offensive aspect of the development wherever it might be
sited, or where the requirements to be satisfied in order to meet the accepted
need were less specific and exacting, the more likely it was that a planning
authority could reasonably conclude that the need could be met elsewhere
without reference to some identifiable preferable alternative site.
It seems to me
this was a case where what was being objected to was not to the nature of the
development which was proposed in general, but the development on this
particular site having regard to the policy which applied to this site. It
seems to me, therefore, that there is nothing involved in the argument which
has been advanced on the additional point which would require this appeal to be
dismissed on a different ground from that which was relied upon by the judge in
the judgment which he gave.
Accordingly,
for those reasons I would allow this appeal and set aside the decision of the
learned judge in so far as he quashed the decision of the Secretary of State.
SWINTON
THOMAS LJ: I agree. I would add only this on one
point already dealt with by Lord Woolf MR. Mr Horton expressed concern that the
decision of the inspector on this application would be relied on to refuse
planning permission in other similar cases. I understand his concern in
relation to that. However, this refusal was by an individual inspector based on
the facts of this particular case. I do not think that his decision in this
case should be allowed to carry weight, or certainly undue weight, in other
applications.
I agree with
the orders proposed by Lord Woolf MR for the reasons given by him.
BROOKE LJ: I agree. I would add a few words on the matter to which Swinton
Thomas LJ has just referred.
Each case has
to be determined on its own particular facts. Here, among other things, there
was the special fact which impressed the inspector that there had been recent
permitted development on the site in the form of the tip washing project which
had lasted for two and a half years and carried with it a condition that an
important part of the site would be restored to woodland and grassland. This
matter was referred to by all the local authorities who made submissions to the
inspector, and it clearly impressed him. The county council said:
Landfill was
not needed to restore the site. The tip would be restored under the condition
imposed on the tip washing operation.
After
referring to a report, they went on:
… that report
made it clear that, with care, the restoration would work and on the balance of
probabilities, an effective restoration would take place.
They said that
this was an important factor in this case because if it did, the area restored,
together with the ponds area and the old bank, would represent 86% of the site
which would be restored by spring 1995. The landfill, however, would hardly
have started by that time.
The local
borough council echoed the point. They said:
It was
accepted that landfill operations could offer an opportunity to achieve the
restoration of derelict land in the form of mineral workings. However, in the
case of Nailstone Colliery the restoration and landscaping of much of the site
was already assured by the implementation of restoration conditions imposed on
the consent in 1989 for tip washing. That restoration was already underway and
the re-opening of the site for waste disposal would delay the completion of the
scheme in respect of the main central parts of the site by at least 12 years.
A more or less
identical point was made by the local parish councils, as is reported in para
235 of the inspector’s report.
Restoration is
an important part of regeneration and in the context of this particular case,
in my judgment, the inspector was entitled to concentrate on the time when
restoration works were finally concluded after any industrial activities on the
site had finished, and not on what might be happening by way of restoration
while those very substantial activities were continued.
In my
judgment, this decision was taken on its own particular facts and should not be
thought to have any wider implications.
Appeal
allowed with costs.
