Enforcement notice — Waste — Council issuing enforcement notice against appellant alleging deposit of waste — Inspector upholding notice — Whether materials complained of constituting waste — Whether inspector entitled to take account of materials not covered by notice — Whether inspector applying relevant guidance — Appeal allowed
The appellant owned land in Hastings that benefited from a 1993 planning permission for residential development. In early 1998, the appellant brought various materials, including hardcore, onto the site, and moved subsoil and topsoil. The county council, which were responsible for regulating waste, issued an enforcement notice, alleging operational development consisting of the deposit of waste material on the land, and required the removal of the waste. The waste material was defined as including “soils, subsoils, hardcore and building rubble”.
The appellant appealed to the respondent Secretary of State, relying upon grounds B, C and F in section 174 of the Town and Country Planning Act 1990. The inspector dismissed the appeal, rejecting the appellant’s evidence that she intended to use the relevant materials in developing the land pursuant to the planning permission. In doing so, he treated as “most important” the evidence of consultants retained by the appellant, which he considered supported his conclusion that the materials on the land were waste.
The appellant appealed under section 289 of the 1990 Act. She contended that the inspector had, inter alia: (i) relied upon irrelevant considerations in concluding that the materials were waste, by having regard to the nature of deposits outside the areas covered by the enforcement notice; (ii) failed to apply the guidance in Annex 2 to Circular 11/34 on the Framework Directive on Waste, which distinguished between deposits that were to be put to beneficial use and those that were being finally disposed of, with only the latter constituting waste; and (iii) wrongly concluded that the alleged operations amounted to operational development.
Held: The appeal was allowed.
The inspector had been entitled to take account of the source and appearance of materials elsewhere on the land, together with evidence of the appellant’s intentions, since they might inform his view of the nature of the materials that were subject to the enforcement notice. Moreover, his approach had been consistent with Circular 11/34. He had been entitled to reject the appellant’s evidence as to her intentions and to conclude that the materials enforced against were not to be put to further use but had been deposited on the land as a convenient final resting place.
However, he had misinterpreted the appellant’s consultants’ evidence, which clearly asserted that the material covered by the enforcement notice was not waste, but was “cut and fill” intended for use in the appellant’s development. In treating that evidence as “most important evidence pointing to the contrary view”, the inspector had erred and had clearly failed to take into account a material consideration. It was possible that he might otherwise have reached a different conclusion, and it was highly likely that, at the least, more specific explanation and reasoning would have been called for. The appeal would therefore be allowed, and remitted to the Secretary of State for reconsideration.
Harriet Townsend (instructed by Morlings, of Maidstone) appeared for the appellant; Rupert Warren (instructed by the Treasury Solicitor) appeared for the respondent.
Sally Dobson, barrister
