Planning permission – Waste treatment facility – Directive 2008/98/EC and Waste (England and Wales) Regulations 2011 – Waste hierarchy – Planning permission granted on appeal for facility for treatment of waste by incineration and export of resulting electricity to National Grid – Whether planning inspector wrongly characterising process at facility as waste “recovery” rather than “disposal” at bottom of waste hierarchy – Whether relevant that facility having potential to carry out “recovery” operations in future – Appeal dismissed
The appellant was one of the objectors at the hearing of the third respondent’s planning appeal challenging a refusal of planning permission by the second respondent council for a waste treatment facility on land in Sinfin, Derby. In determining the appeal, the first respondent’s planning inspector considered the “waste hierarchy” set out in Article 4 of Directive 2008/98/EC (the Waste Framework Directive), as implemented by the implemented by the Waste (England and Wales) Regulations 2011 and relevant planning policies; these promoted proposals for the treatment of waste higher up the waste hierarchy with a view to achieving more sustainable waste management and listed “disposal” at the bottom of the hierarchy below “recovery”.
The third respondent’s proposed facility was to use a process involving incineration and the use of the heat to generate electricity for export to the National Grid. It would not initially qualify as a “recovery” process, since its energy efficiency did not achieve the required threshold. However, the facility was also to contain equipment for the export of residual heat through steam and hot water and it was common ground that, if contracts were secured in future to export that residual heat to local businesses for their use, that additional use would suffice to bring the facility’s processes into the “recovery” category.
The inspector allowed the appeal and granted planning permission. In his decision, he stated that the proposed waste treatment facility was higher in the waste hierarchy than disposal and that it met the planning policy requirements for the management of waste to be taken up the waste hierarchy.
In proceedings brought under section 288 of the Town and Country Planning Act 1990, the appellants contended that the inspector had erroneously categorised the proposed facility as a recovery operation rather than as a disposal. Dismissing the claim, the judge that the inspector had correctly identified the issue as whether the proposal would result in waste being treated higher up the waste hierarchy and had understood that electricity generation alone would not qualify as recovery without the additional export of heat: see [2013] EWHC 733 (Admin).
Held: The appeal was dismissed.
In order to obtain planning permission, it was not necessary for the facility to fall within the “recovery” category at the date when it began operating. The Waste Framework Directive, the 2011 Regulations and the relevant planning policy documents made it clear that the waste hierarchy did not have to be followed slavishly. The inspector had not fallen into the error of categorising the proposal as initially a “recovery” proposal for the purposes of the directive and the waste hierarchy. His decision had to be interpreted without excessive legalism, with regard to the entirety of the document, and recognising that it was addressed to parties who were aware of the issues involved and the arguments advanced. The objectors’ contentions had been that the proposal was not consistent with waste treatment planning policy because incineration lay at the bottom of the “waste hierarchy” and was little better than the traditional practice of disposal of waste to landfill sites. The inspector had correctly found that the proposal was not “recovery” but had gone on to make findings as to how the facility might operate in future. There could be there can be no genuine or substantial doubt about what the inspector decided and why.
Zack Simons (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the appellant; Jonathan Moffett (instructed by the Treasury Solicitor) appeared for the first respondent; the second respondents, Derby City Council, did not appear and were not represented; Martin Kingston QC and Richard Kimblin (instructed by Addleshaw Goddard LLP, of Manchester) appeared for the third respondent, Resource Recovery Solutions (Derbyshire) Ltd.
Sally Dobson, barrister
Skrytek v Secretary of State for Communities and Local Government and others
Planning permission – Waste treatment facility – Directive 2008/98/EC and Waste (England and Wales) Regulations 2011 – Waste hierarchy – Planning permission granted on appeal for facility for treatment of waste by incineration and export of resulting electricity to National Grid – Whether planning inspector wrongly characterising process at facility as waste “recovery” rather than “disposal” at bottom of waste hierarchy – Whether relevant that facility having potential to carry out “recovery” operations in future – Appeal dismissed The appellant was one of the objectors at the hearing of the third respondent’s planning appeal challenging a refusal of planning permission by the second respondent council for a waste treatment facility on land in Sinfin, Derby. In determining the appeal, the first respondent’s planning inspector considered the “waste hierarchy” set out in Article 4 of Directive 2008/98/EC (the Waste Framework Directive), as implemented by the implemented by the Waste (England and Wales) Regulations 2011 and relevant planning policies; these promoted proposals for the treatment of waste higher up the waste hierarchy with a view to achieving more sustainable waste management and listed “disposal” at the bottom of the hierarchy below “recovery”.The third respondent’s proposed facility was to use a process involving incineration and the use of the heat to generate electricity for export to the National Grid. It would not initially qualify as a “recovery” process, since its energy efficiency did not achieve the required threshold. However, the facility was also to contain equipment for the export of residual heat through steam and hot water and it was common ground that, if contracts were secured in future to export that residual heat to local businesses for their use, that additional use would suffice to bring the facility’s processes into the “recovery” category.The inspector allowed the appeal and granted planning permission. In his decision, he stated that the proposed waste treatment facility was higher in the waste hierarchy than disposal and that it met the planning policy requirements for the management of waste to be taken up the waste hierarchy.In proceedings brought under section 288 of the Town and Country Planning Act 1990, the appellants contended that the inspector had erroneously categorised the proposed facility as a recovery operation rather than as a disposal. Dismissing the claim, the judge that the inspector had correctly identified the issue as whether the proposal would result in waste being treated higher up the waste hierarchy and had understood that electricity generation alone would not qualify as recovery without the additional export of heat: see [2013] EWHC 733 (Admin).Held: The appeal was dismissed. In order to obtain planning permission, it was not necessary for the facility to fall within the “recovery” category at the date when it began operating. The Waste Framework Directive, the 2011 Regulations and the relevant planning policy documents made it clear that the waste hierarchy did not have to be followed slavishly. The inspector had not fallen into the error of categorising the proposal as initially a “recovery” proposal for the purposes of the directive and the waste hierarchy. His decision had to be interpreted without excessive legalism, with regard to the entirety of the document, and recognising that it was addressed to parties who were aware of the issues involved and the arguments advanced. The objectors’ contentions had been that the proposal was not consistent with waste treatment planning policy because incineration lay at the bottom of the “waste hierarchy” and was little better than the traditional practice of disposal of waste to landfill sites. The inspector had correctly found that the proposal was not “recovery” but had gone on to make findings as to how the facility might operate in future. There could be there can be no genuine or substantial doubt about what the inspector decided and why.Zack Simons (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the appellant; Jonathan Moffett (instructed by the Treasury Solicitor) appeared for the first respondent; the second respondents, Derby City Council, did not appear and were not represented; Martin Kingston QC and Richard Kimblin (instructed by Addleshaw Goddard LLP, of Manchester) appeared for the third respondent, Resource Recovery Solutions (Derbyshire) Ltd.Sally Dobson, barrister
