HJ Banks & Co Ltd v Secretary of State for the Environment

Landfill site — Priority area — Inspector deciding need for landfill site did not override damage to regeneration of priority area — Speedier restoration under condition attached to existing operation — Whether inspector failing to take into account long-term advantages of restoration under appeal proposals — Whether judge entitled to fault inspector’s refusal on that ground — Judge allowing appeal — Secretary of State’s appeal allowedIn 1992 the applicant recovered coal from waste heaps left after the closure of Nailstone Colliery in north west Leicestershire under planning permission for tip washing. That planning permission was subject to a condition for restoration to woodlands and grasslands. The local planning authority later refused grant to the applicant planning permission for infilling the redundant site with controlled waste leading to a restoration of land for recreational and industrial use. The inspector dismissed the appeal against that refusal concluding that the appeal proposals would delay the final restoration of the site by up to 12 years and that it would be perfectly obvious in the neighbourhood, during the operational period, that the site was being used as a large landfill site. In the inspector’s view that would have a serious and deleterious effect on the regeneration of the area and constitute a breach of policy L/STI which designated the area as a priority area and would amount to demonstrable harm. Although he accepted the need for further landfill sites in that area of the county, he did not consider that that need was sufficient to override the damage that the proposed development would do to the redevelopment and regeneration of that part of the priority area. The inspector’s decision was quashed by the judge on the ground that the inspector, having reached the conclusion that the need did not override the damage to a priority area, had failed to have regard to the benefits of the appeal proposals, in particular the securing of future areas of mature woodland and ponds through a management plan, the increase in tree cover in the area, the opportunity to develop the public footpath system in the area and the long-term advantages which could be secured over and above those which would result from the existing restoration condition. The Secretary of State for the Environment appealed. Held The appeal was allowed. 1. Considering the decision letter as a whole, planning permission had been refused because although the inspector had accepted that there was a need for further landfill sites in the area, he had not been prepared to regard the planning application as acceptable since it conflicted, in his view, with the policy of a priority area. If planning permission was refused there would be an earlier restoration of the site under the condition in the original permission granted to the applicant for tip washing, whereas under the appeal proposals final restoration would be delayed for 12 years. In this matter it was the judgment of the inspector and not the judge which was relevant. The judge had thought that the inspector had omitted to take into account the additional benefit from the scheme and the fact that some of that benefit would happen very quickly. The judge had been too scrupulous in construing the inspector’s reasons and the appeal would be allowed. 2. The inspector had been impressed by the special fact that the site would be restored more quickly under the condition imposed by the tip washing permission. He had been entitled to concentrate on the completion of the works, but since each case was decided upon its own facts, no wider implications were to be read into the conclusion of the court. David Holgate (instructed by the Treasury Solicitor) appeared for the Secretary of State; Matthew Horton QC and Neil King (instructed by Aaron & Partners, of Chester) appeared for the respondent applicants.