Scarisbrick, R (On the Application Of) v Secretary of State for Communities and Local Government [2017] EWCA Civ 787

[2017] EWCA Civ 787

Case No C1/2016/0761

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ADMINISTRATIVE COURT

PLANNING COURT

MR JUSTICE CRANSTON

CO/3070/2015

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 23 June 2017

Before

The Senior President of Tribunals

Lord Justice Lindblom

Lord Justice Irwin

Between

R. (on the application of Arthur Scarisbrick)Claimant

Secretary of State for Communities andDefendant

Local GovernmentDefendant

Whitemoss Landfill Ltd.Interested Party

Mr David Wolfe Q.C.(instructed by Leigh Day Solicitors) for Claimant

Ms Nathalie Lieven Q.C.(instructed by the Government Legal Department) for Defendant

Mr James Pereira Q.C.(instructed by Nabarro LLP) for Interested Party

Hearing Hearing date: 2 March 2017

Judgment Approved by the court for handing down (subject to editorial corrections)

Introduction

[1]In this claim for judicial review we must decide whether the Government’s policy for “nationally significant hazardous waste infrastructure” was properly interpreted and lawfully applied in the making of a development consent order under section 114 of the Planning Act 2008.

[2]The claimant, Mr Arthur Scarisbrick, has permission to apply for judicial review of the decision of the defendant, the Secretary of State for Communities and Local Government, on 19 May 2015, to make the White Moss Landfill Order. The order granted consent for the construction of a hazardous waste landfill facility with a capacity of 150,000 tonnes per annum, and the continuation of filling with hazardous waste of the adjacent landfill site, known as Whitemoss Landfill, at White Moss Lane South in Skelmersdale. When making it, the Secretary of State confirmed the requisite powers for the compulsory acquisition of land under sections 122 and 123 of the 2008 Act. The applicant for the order was the interested party, Whitemoss Landfill Ltd., the operator of the existing landfill site. The Secretary of State’s decision to make it was in accordance with the recommendation made to him in the report, dated 21 February 2015, of the Examining Authority (Ms Wendy Burden, Mr Philip Asquith and Mr Robert Macey), after an examination undertaken between 21 May and 21 November 2014.

[3]Mr Scarisbrick owns land next to the site of the proposed development, and lives nearby. With a number of other local residents, who had formed a group called Action to Reduce and Recycle Our Waste (“ARROW”), he objected to the draft order and took part in the examination. His claim challenging the development consent order was issued on 30 June 2015. Permission to apply for judicial review was initially refused in the Planning Court. But at a hearing on 5 October 2016 I granted permission, on a single ground. Because of the possible wider importance of the issue raised, which concerns government policy in the “National Policy Statement for Hazardous Waste: A framework document for planning decisions on nationally significant hazardous waste infrastructure” (“the NPS”), published by the Department for Environment, Food and Rural Affairs in June 2013, I ordered that the claim was to be heard in this court.

The issue in the claim

[4]The issue raised in the single ground on which Mr Scarisbrick has permission to apply for judicial review is whether, in making the development consent order, the Secretary of State erred in his approach to the assessment of the need for the project by misconstruing and misapplying the policy in section 3.1 of the NPS, which says that relevant applications will be assessed “on the basis that need has been demonstrated”.

The 2008 Act

[5]In Parts 3, 4 and 5 of the 2008 Act, provision is made for the granting of development consent for a “nationally significant infrastructure project” – defined in section 14 as including “the construction or alteration of a hazardous waste facility” (subsection (1)(p)). Under section 30 a “hazardous waste facility” is within section 14(1)(p) only if it will be in England (subsection (1)(a)), and, “in the case of the disposal of hazardous waste by landfill or in a deep storage facility”, its capacity is “more than 100,000 tonnes per year” (subsections (1)(c) and (2)(a)). Section 37 provides for the making of an application for a development consent order.

[6]Section 5, “National Policy Statements”, provides that the Secretary of State may issue a national policy statement that “sets out national policy in relation to one or more specified descriptions of development” (subsection (1)(b)). Section 5(5) provides that a national policy statement may, among other things, “set out, in relation to a specified description of development, the amount, type or size of development of that description which is appropriate nationally or for a specified area” (subsection (5)(a)); “set out criteria to be applied in deciding whether a location is suitable (or potentially suitable) for a specified description of development” (subsection (5)(b)); “identify one or more locations as suitable (or potentially suitable) or unsuitable for a specified description of development” (subsection (5)(d)).Section 5(7) provides that “[a] national policy statement must give reasons for the policy set out in the statement”. Section 6(1) requires the Secretary of State to “review each national policy statement whenever [he] thinks it appropriate to do so”, and, if there has been “a significant change in any circumstances …” (section 6(3)(d)). Section 9 requires a proposed national policy statement to be laid before Parliament before it is designated and takes effect. Section 13, “Legal challenges relating to national policy statements”, provides for “proceedings for questioning a national policy statement …” to be brought by a claim for judicial review within six weeks of its designation or, if later, its publication (subsection (1)).

[7]In Part 6, “Deciding Applications for Orders Granting Development Consent”, section 103 provides that the Secretary of State “has the function of deciding an application for an order granting development consent”. Section 104, “Decisions in cases where national policy statement has effect”, applies to “an application for an order granting development consent if a national policy statement has effect in relation to development of the description to which the application relates” (subsection (1)). It provides, in subsection (2), that “[in] deciding the application the Secretary of State must have regard to “(a) any national policy statement which has effect in relation to development of the description to which the application relates (a “relevant national policy statement”) …”. Subsection (3) states that “[the] Secretary of State must decide the application in accordance with any relevant national policy statement, except to the extent that one or more of subsections (4) to (8) applies”. Subsection (7) applies “if the Secretary of State is satisfied that the adverse impact of the proposed development would outweigh its benefits”. Under section 114(1) the Secretary of State must either make the order granting development consent or refuse it. Section 118 requires a challenge to a development consent order to be made by a claim for judicial review.

[8]In Part 7, “Orders Granting Development Consent”, section 122, “Purpose for which compulsory acquisition may be authorised”, provides that an order granting development consent “may include provision authorising the compulsory acquisition of land only if the Secretary of State is satisfied that the conditions in subsections (2) and (3) are met” (subsection (1)). The conditions in subsections (2) and (3) are that the land “(a) is required for the development to which the development consent relates”, “(b) is required to facilitate or is incidental to that development”, or “(c) is replacement land which is to be given in exchange for the order land …” (subsection (2)), and “… that there is a compelling case in the public interest for the land to be acquired compulsorily” (subsection (3)). Under section 123(1) and (2) an order granting development consent may include provision authorizing compulsory acquisition of land if the Secretary of State is satisfied that the application for the order included a request for compulsory acquisition of that land.

The application for a development consent order

[9]Whitemoss Landfill is in the Green Belt, beside the M58 motorway on the southern side of Skelmersdale. A planning permission granted in October 2011 approved the disposal of hazardous waste on the site until 31 December 2018. The environmental permit restricts the disposal of hazardous waste to 149,500 tonnes per annum. But the annual throughput of waste has always been much less than that – at its highest 76,000 tonnes in 2013, and as low as 22,654 tonnes in 2011.

[10]In June 2013 the inspector who conducted the examination into the Lancashire Site Allocation and Development Management Policies Local Plan – for the administrative areas of Lancashire County Council, Blackburn with Darwen Council and Blackpool Council – concluded that “there will be a continuing need to find a location for the disposal of perhaps up to 17,000 tonnes per annum throughout the plan period” (paragraph 155 of his report). The three authorities had concluded that there was “no need to specifically identify a new site or an extension to an existing site in this [local plan]”, and that the originally proposed allocation for a hazardous waste landfill at Whitemoss Landfill should be deleted (paragraph 156). Instead, they now proposed “to include a criteria-based policy which would support permission for a new site, or an extension to an existing site, where there is a demonstrable need” (paragraph 157).

[11]The application for the development consent order was submitted by Whitemoss Landfill Ltd. on 20 December 2013. The application site extends to about 25 hectares, comprising the existing landfill site of about 8.5 hectares and additional land, some 16 hectares, for its extension to the west and north-west. The application was accepted for examination on 17 January 2014.

The NPS

[12]Part 1 of the NPS is its “Introduction”. In section 1.1, “Background”, paragraph 1.1.4 says the NPS “will be kept under review by the Secretary of State, in accordance with the requirements of [the 2008 Act], in order to ensure it remains appropriate for decision making”, and that “[it] is expected that the Secretary of State would review the NPS approximately every five years …”. In section 1.2, “Infrastructure covered by this NPS”, paragraph 1.2.1 confirms that the scope of the NPS includes the construction of facilities in England where the main purpose of the facility is expected to be the final disposal or recovery of hazardous waste and the capacity is expected to be “in the case of the disposal of hazardous waste by landfill …, more than 100,000 tonnes per year”. In section 1.4, “The Appraisal of Sustainability”, paragraph 1.4.1 says the NPS “has been subject to Appraisal of Sustainability … , incorporating the requirements for Strategic Environmental Assessment …”. Paragraph 1.4.5 acknowledges, however, that “[it] will be for project applicants to set out in detail how they will meet the policy and requirements set out in the NPS”.

[13]Part 2 sets out “Government Policy on Hazardous Waste”. Section 2.1, “Summary of Government Policy”, identifies the four “main objectives of Government policy on hazardous waste”, one of which is “(c) Self-sufficiency and proximity – to ensure that sufficient disposal facilities are provided in the country as a whole to match expected arisings of all hazardous wastes, … and to enable hazardous waste to be disposed of in one of the nearest appropriate installations”. It goes on to refer to “A Strategy for Hazardous Waste Management in England”, published by the Departmentfor EnvironmentFood and Rural Affairs in March 2010, which was “based on six high level principles intended to drive the management of hazardous waste up the waste hierarchy”. One of these principles, it says, is “that the Government looks to the market to provide the infrastructure needed to implement the Strategy as it is industry that has the expertise required to consider where facilities are needed and the appropriate technologies to use”. It adds that “Government believes its role is to provide a clear steer on the types of new facility that are needed and provide the framework (including legislative safeguards on human health and the environment) within which the infrastructure is to be provided”.

[14]Under the heading “Implementation of the waste hierarchy”, paragraph 2.3.2 refers to the “waste hierarchy” in the Waste Framework Directive, and the “five steps which must be applied in waste prevention and management legislation and policy”. The fifth step is “Disposal (of which landfill is considered to be at the bottom)”. Paragraph 2.3.3 emphasizes that “[of] the disposal options available, landfilling of hazardous waste should only be used as a last resort”. In section 2.4, “Government strategy for hazardous waste management”, paragraph2.4.1 refers to the five principles in the March 2010 strategy which are “of particular relevance to the need for new infrastructure”. The second of these five principles, it says, “requires a reduction in reliance on landfill, with landfill only being used where, overall, there is no better recovery or disposal option”. Paragraph

2.4.2 emphasizes that, under Principle 2 in the 2010 strategy, “Government looks to the market to provide the infrastructure to implement the Strategy”, and “Government’s role is to provide the right framework and encouragement to the private sector to bring the necessary infrastructure forward”. Under the heading “Identification of suitable or unsuitable locations for infrastructure”, paragraph 2.5.6 confirms that it is “not … Government policy to prescribe exactly where new hazardous waste infrastructure should be provided”.

[15]Part 3 of the NPS deals with the “Need for Large Scale Hazardous Waste Infrastructure”. The policy of particular relevance in this case is in section 3.1, which states: “3.1 Summary of Need Hazardous waste management infrastructure is essential for public health and a clean environment. There will be a demand for new and improved large scale hazardous waste infrastructure, because of the following main drivers: Trends in hazardous waste arisings:• Measures have been implemented to prevent and minimize the production of hazardous waste. Nevertheless, arisings have remained significant despite the economic downturn. This is because the introduction of measures to further improve the environmentally sound management of waste has increased the types of waste that must be removed from the municipal waste stream and be managed separately as hazardous waste.

• Changes to the list of hazardous properties in the revised Waste Framework Directive and forthcoming changes to the European Waste List, are expected to lead to further increases in the amount of waste that must be managed as “hazardous”.

• There is a need to substantially reduce the relatively large amounts of hazardous waste continuing to be sent to landfill and increase that sent for recycling and reuse. The need to meet legislative requirements:

• To apply the waste hierarchy – as set out in the revised Waste Framework Directive. New improved facilities will be required to optimise the extent to which the management of hazardous waste can be moved up the waste hierarchy.

• To treat hazardous waste that can no longer be sent to landfill following the phase out of the practice of relying on higher Landfill Directive Waste acceptance criteria.

• To comply with the “proximity principle” of adequate provision of hazardous waste facilities within each EU Member State. ‘A Strategy of Hazardous Waste Management in England (2010)’ established the need for new hazardous waste facilities and set out the types of facility required. Of the facilities identified, the Strategy determined that the following generic types would be likely to include nationally significant infrastructure facilities:

• Waste electrical and electronic equipment plants

• Oil regeneration plant

• Treatment plant for air pollution control residues

• Facilities to treat oily wastes and oily sludges

• Bioremediation / soil washing to treat contaminated soil diverted from landfill

• Hazardous waste landfill The UK Ship Recycling Strategy encourages the development of Ship Recycling Facilities, some of which will need to be nationally significant infrastructure. The Secretary of State will assess applications for infrastructure covered by this NPS on the basis that need has been demonstrated.”

• Measures have been implemented to prevent and minimize the production of hazardous waste. Nevertheless, arisings have remained significant despite the economic downturn. This is because the introduction of measures to further improve the environmentally sound management of waste has increased the types of waste that must be removed from the municipal waste stream and be managed separately as hazardous waste.

• There is a need to substantially reduce the relatively large amounts of hazardous waste continuing to be sent to landfill and increase that sent for recycling and reuse.

• To treat hazardous waste that can no longer be sent to landfill following the phase out of the practice of relying on higher Landfill Directive Waste acceptance criteria.

• To comply with the “proximity principle” of adequate provision of hazardous waste facilities within each EU Member State.

• Waste electrical and electronic equipment plants

• Oil regeneration plant

• Treatment plant for air pollution control residues

• Facilities to treat oily wastes and oily sludges

• Bioremediation / soil washing to treat contaminated soil diverted from landfill

• Hazardous waste landfill

[16]In a passage headed “The total amounts of hazardous waste remain significant and are expected to increase”, paragraph 3.2.2 says that “[despite] measures to prevent and minimise hazardous waste and the economic downturn, arisings have not declined particularly significantly with around 3.3m tonnes of hazardous waste being consigned in England in 2010”, and “[arisings] are expected to increase as the economy improves”. In section 3.4, “What types of NSIP [nationally significant infrastructure project] will be needed?”, paragraph 3.4.1 says “[the] need for new facilities to manage hazardous waste was established” in the March 2010 strategy, which identified seven “generic categories of nationally significant infrastructure projects … likely to be needed”, one of which was “[hazardous] waste landfill”. Paragraph 3.4.13 confirms that “[landfill] is at the bottom of the waste hierarchy”, but goes on to acknowledge that “there will remain some waste streams for which landfill is the best overall environmental outcome” and that “there may be future applications for development consent for nationally significant hazardous waste landfill”. Paragraph 3.4.14 states:

“Government has therefore concluded that there is a need for these hazardous waste infrastructure facilities. The Examining Authority should examine applications for infrastructure covered by this NPS on the basis that need has been demonstrated.”

[17]In Part 4, “Assessment Principles”, paragraph 4.1.2 states:

“4.1.2 Subject to any more detailed policies set out in the Hazardous Waste NPSs and the legal constraints set out in [the 2008 Act], there should be a presumption in favour of granting consent to applications for hazardous waste NSIPs, which clearly meet the need for such infrastructure established in this NPS.”

Paragraph 4.1.3 says this:

“4.1.3 In considering any proposed development, and in particular when weighing its adverse impacts against its benefits, the Examining Authority and the Secretary of State (as decision maker) should take into account: • its potential benefits including its contribution to meeting the need for hazardous waste infrastructure, job creation and any long-term or wider benefits; and • its potential adverse impacts, including any longer-term and cumulative adverse impacts, as well as any measures to avoid, reduce or compensate for any adverse impacts.”

Paragraph 4.4.3 says that “[whilst] this NPS and supporting [Appraisal of Sustainability] have shown that there is no alternative, at a strategic level, to meeting the need for new hazardous waste infrastructure, it must not be assumed that there will be no alternatives for individual projects”.

[18]Part 5, “Generic Impacts”, acknowledges in paragraph 5.1.1 that “[some] impacts will be relevant to any hazardous waste infrastructure, whatever the type”. It indicates the approach to decision-making in cases where such impacts are relevant – specifically, for example, in section 5.2, “Air Quality and Emissions”; in section 5.3, “Biodiversity and Geological Conservation”; in section 5.7, “Flood Risk”; in section 5.8, “The Historic Environment”; in section 5.9, “Landscape and Visual Impacts”; and in section 5.10, “Land Use Including Open Space, Green Infrastructure and Green Belt”. The policy for decision-making on proposals for hazardous waste infrastructure in the Green Belt is set out, in familiar terms, in paragraph 5.10.15:

“5.10.15 When located in the Green Belt hazardous waste infrastructure projects may comprise inappropriate development. Inappropriate development [Here a footnote refers to the policies in paragraphs 79 to 92 of the National Planning Policy Framework (“the NPPF”)] is by definition harmful to the Green Belt and there is a presumption against it except in very special circumstances. The Secretary of State will need to assess whether there are very special circumstances to justify inappropriate development. Very special circumstances will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt, when considering any application for such development.”

What does the policy in section 3.1 of the NPS mean?

[19]The court’s general approach to the interpretation of planning policy is well established and clear (see the decision of the Supreme Court in Tesco Stores Ltd. v Dundee City Council

[2012] UKSC 13

, in particular the judgment of Lord Reed at paragraphs 17 to 19). The same approach applies both to development plan policy and statements of government policy (see the judgment of Lord Carnwath in Suffolk Coastal District Council v Hopkins Homes Ltd. and Richborough Estates Partnership LLP v Cheshire East Borough Council

[2017] UKSC 37

, at paragraphs 22 to 26). Statements of policy are to be interpreted objectively in accordance with the language used, read in its proper context (see paragraph 18 of Lord Reed’s judgment in Tesco Stores v Dundee City Council). The author of a planning policy is not free to interpret the policy so as to give it whatever meaning he might choose in a particular case. The interpretation of planning policy is, in the end, a matter for the court (see paragraph 18 of Lord Reed’s judgment in Tesco v Dundee City Council). But the role of the court should not be overstated. Even when dispute arises over the interpretation of policy, it may not be decisive in the outcome of the proceedings. It is always important to distinguish issues of the interpretation of policy, which are appropriate for judicial analysis, from issues of planning judgment in the application of that policy, which are for the decision-maker, whose exercise of planning judgment is subject only to review on public law grounds (see paragraphs 24 to 26 of Lord Carnwath’s judgment in Suffolk Coastal District Council). It is not suggested that those basic principles are inapplicable to the NPS – notwithstanding the particular statutory framework within which it was prepared and is to be used in decision-making.

[20]It is common ground that the policy section 3.1 of the NPS is policy of a general kind, in the sense that it is not specific to any particular site or location or for a particular type of development. This is not the kind of policy contemplated in section 5(5)(d) of the 2008 Act. Nor does it set out any criteria to be applied in deciding whether a particular location or locations are suitable, or might be suitable, for development of the type to which it relates. It is not, therefore, the kind of policy contemplated in section 5(5)(b).

[21]Mr David Wolfe Q.C., for Mr Scarisbrick, submitted that the policy in section 3.1 merely requires it to be assumed that there is a “strategic” need, or a need in principle, for some large hazardous waste landfill facilities in England. So it is not appropriate for an Examining Authority, or the Secretary of State, when dealing with an application for a development consent order, to discuss the broad principle of having hazardous waste landfill as part of the mix of facilities. The policy means no more than that there is, in principle, a need for developments of this kind, and that the decision-maker should not debate whether hazardous waste landfill proposals should be rejected outright. But – as Mr Wolfe put it in his skeleton argument (at paragraph 35) – the policy “should not be understood as prescribing a need for any (i.e. each and every) proposed hazardous waste facility however large (the sky seems to be the limit) at any location in England …”. It cannot mean, he submitted, that in making a decision on an application for a development consent order the Secretary of State must, or may, act on the unquestionable assumption that there is a need for the facility the developer has proposed – of whatever scale and capacity, in whichever location, and no matter whether the site is in the Green Belt or powers are being sought for the compulsory acquisition of third party land.

[22]For the Secretary of State, Ms Nathalie Lieven Q.C. submitted that the policy in section 3.1 of the NPS makes it clear that the starting point in the making of a decision on a relevant project is that need is established, and that the applicant for a development consent order does not have to prove need for the type of development proposed. If the site on which the development is proposed is subject to constraints of the kind referred to in Part 5 of the NPS (“Generic Impacts”), such as being in the Green Belt or in an area at risk of flooding, the Secretary of State will have to carry out the appropriate planning balance. The approach indicated in the NPS, is in this sense perfectly conventional. The NPS establishes a national need for hazardous waste infrastructure of the relevant types, confirms that it is in the public interest that such need is met by the provision of new facilities and that there is a presumption in favour of consent being granted for such facilities, but recognizes that, inevitably, in the determination of particular applications, the meeting of the need, in the public interest, must be set against other material planning considerations. This will necessarily involve considering the weight to be attached to the need for the development. The NPS accepts that the market is likely to assess the level of need, and the most appropriate locations for development. But it also accepts, for example, that if the site is in the Green Belt, the Secretary of State will have to consider whether there are “very special circumstances” to justify the project in hand, and this will require him to evaluate the need for it, including any regional or local need that may be demonstrated.

[23]On behalf of Whitemoss Landfill Ltd., Mr James Pereira Q.C. made submissions similar to Ms Lieven’s. He argued that the NPS clearly does identify a need for hazardous waste infrastructure of the specified types. It is wrong, he submitted, to use such concepts as “strategic need” and “need in principle”, in contradistinction to concepts such as “specific need” and the “need for a particular project”, to qualify the policy in section 3.1. The policy identifies a need for hazardous waste landfill infrastructure with a capacity sufficient to make it a nationally significant infrastructure project. As paragraph 3.4.14 makes plain, the need relates to a “application for infrastructure …”, and must be taken into account in decision-making on particular projects. Because the NPS does not identify particular locations for the infrastructure it deals with, the need identified in the policy applies to relevant infrastructure wherever it is proposed. This does not mean, however, that the identified need will automatically determine the outcome of an application for a development consent order. The location of the proposed development, and its design, must be appropriate in environmental terms when judged against relevant policy. And any need for powers of compulsory acquisition must be justified with a compelling case, to which the policy need may be relevant but, again, not necessarily decisive.

[24]In my view, the policy in the final sentence of section 3.1 of the NPS, read in its proper context, identifies and establishes the need for nationally significant infrastructure facilities of the “generic types” to which section 3.1 refers, which include facilities for “Hazardous waste landfill”. It applies to all nationally significant infrastructure projects falling within those “generic types”, not just to some. The need it identifies is a general need. It establishes what might be described as a “qualitative” need for hazardous waste infrastructure of the relevant types. It does not define a “quantitative” need for such development, by setting for each relevant type of infrastructure an upper limit to the number or capacity of the facilities required. It does not descend at all into the question of capacity, in the sense of the requirement for a given level of throughput of hazardous waste in infrastructure of the relevant types. It creates, at the level of national policy, a general assumption of need for such facilities. The need is not explicitly for an individual project of any particular scale or capacity or in any particular location. But the policy does not exclude any project of a relevant type. It applies to every relevant project capable of meeting the identified need, regardless of the scale, capacity and location of the development proposed. An applicant for a development consent order is entitled to proceed on that basis.

[25]In framing the policy in section 3.1, the Government chose not to identify particular locations suitable or unsuitable for such development, and not to set down criteria as to suitable or potentially suitable locations. It leaves with “the market” the initiative in bringing forward development (section 2.1 and paragraph 2.4.2 of the NPS). And it is not limited in time, save to the extent that it must be read together with the statutory requirement, in section 6 of the 2008 Act, that a national policy statement be kept under review, and the indication in paragraph 1.1.4 that the NPS is expected to be reviewed “approximately every five years”.

[26]The comprehensive nature of the need is confirmed in paragraph 3.4.1 of the NPS, which refers to the 2010 strategy as having identified certain “generic categories” of nationally significant infrastructure projects that were “likely to be needed”, and in paragraph 3.4.14, which records the Government’s conclusion that “there is a need for these hazardous waste infrastructure facilities”. Paragraph 3.4.13 does not deny the need for “hazardous waste landfill”, but it does provide the specific context for the application of the policy in section 3.1 in cases where the Secretary of State has before him a proposal for a facility of this particular kind.

[27]It is also clear that the policy in section 3.1 was deliberately included in the NPS not merely to identify the relevant national need, but also to guide the assessment of applications for development consent orders. Its explicit purpose is to ensure that when “applications for infrastructure covered by this NPS” come to be determined, the Secretary of State “will assess” such proposals on the basis that need has been demonstrated. To implement the policy selectively in relevant decision-making – by applying it to some of the projects embraced within it but not to others – would be to ignore its plain meaning and purpose as a policy intended to influence decisions on all proposals properly within its scope. The policy enables an Examining Authority, and the Secretary of State, to start with the assumption that a national need for such projects is established.

[28]The policy in section 3.1 must be read together with the related passages in Part 4, “Assessment Principles” and Part 5, “Generic Impact”. These include the “presumption” stated in paragraph 4.1.2 – the presumption in favour of granting consent to applications “for hazardous waste NSIPs, which clearly meet the need for such infrastructure established in this NPS”. This “presumption” is applicable to all such projects within the “generic types” referred to in the policy in section 3.1, including “Hazardous waste landfill”. It is, however, only a “presumption”. It is not automatically conclusive of the outcome of a particular application for a development consent order. This is confirmed by the policy in paragraph 4.1.3, which envisages a balancing exercise for a particular proposal, “weighing its adverse impacts against its benefits”, one potential benefit being the proposal’s “contribution to meeting the need for hazardous waste infrastructure, …”.

[29]Likewise, the policies for the treatment of “Generic Impacts” in Part 5, including the policy for the consideration of proposals for development in the Green Belt in section 5.10, require a project-specific and site-specific evaluation of the factors for and against a particular proposal in a particular location, applying the relevant policy principles. It follows for example, as Ms Lieven submitted, that the policy for development in the Green Belt, in paragraph 5.10.15, must be applied in the way described. Whether the “harm by reason of inappropriateness, and any other harm” is outweighed by the “need” for relevant hazardous waste infrastructure identified in section 3.1 and the “presumption” in favour of relevant proposals in paragraph 4.1.2, together with any other considerations weighing in favour of the project, so that “very special circumstances” exist, will be a matter for the Secretary of State to consider. In such a case the “need” identified in section 3.1 of the NPS may prove to be an important consideration in establishing “very special circumstances”; or it may not.

[30]When determining an application for a development consent order, the Secretary of State must proceed as section 104 of the 2008 Act requires. The considerations bearing on his decision will include the policy need established in the NPS, any specific regional or local need for the development, any planning benefits, and the likely effects of the development on the environment. Where the development is proposed in the Green Belt, as in this case, the making of the decision must be approached as the relevant policy in the NPS requires.

[31]Implicit in all this is that the weight to be given to particular considerations, including the need identified in the policy in section 3.1 of the NPS, will always be a matter for the exercise of the Secretary of State’s planning judgment in the particular circumstances of the case. The need identified and established in the policy must be given appropriate weight in the making of a decision on an application for a development consent order, but it will not necessarily carry decisive or even significant weight when the planning balance is struck. The weight to be given to that need, case by case, is not prescribed, either in the policy in section 3.1 or elsewhere in the NPS. It will not necessarily increase with the scale or capacity of a particular proposal. The policy does not place a “trump card” or a “blank cheque” in the hands of a developer. Nor does it provide the Secretary of State with “carte blanche” to grant consent, without carrying out a proper balancing exercise in which the need identified and established in the policy is given the weight it is due in the decision on the project in hand, no more and no less. The need identified in section 3.1 will always be a material factor in a case where the policy applies. It will only be met, and can only be met, by individual developments of the relevant types. In this sense it is truly a need for an individual project of a relevant type, and will count in favour of any such project when the decision is made. But the policy does not mean that the bigger the project, the greater is the need for it – or, as Mr Wolfe put it (in paragraph 35 of his skeleton argument), “the sky seems to be the limit”. That is not what the policy says, and not how it should be understood.

The Examining Authority’s report

[32]The Examining Authority held a preliminary meeting on 21 May 2014. On 30 May 2014 they sent a letter to the parties, setting out their procedural decisions (in Annex A to their letter). On “the issue of need for a facility of the scale proposed”, which had been raised by Lancashire County Council and CPRE Lancashire, they said they would be “inviting debate” during the examination as to “whether the need identified in the NPS (para 3.1) constitutes need at a strategic level, or whether it prescribes a need for any proposed hazardous waste facility, including a landfill facility of the scale and in the location of the Whitemoss proposal”. In their observations on “Policy matters” in Annex A to their letter, they “[put] forward the view that the strategic need for hazardous waste infrastructure identified in the NPS should not be interpreted as an accepted need for a hazardous waste landfill facility at the application site”, and that “[not] all applications for hazardous waste NSIPs will necessarily “clearly meet the need for infrastructure established in the NPS” (para 4.1.2) having regard to the policy objectives set out in the NPS in 2.1 and 2.3”. They invited “[submissions] on the issue of whether or not there is a need for this particular facility in the location proposed …”. However, they also said that they did “not consider that such submissions would relate to the merits of Government policy set out in the NPS, which is not a topic for debate during the examination”.

[33]The examination was conducted on the basis of written evidence and evidence given at hearings held between 17 July and 23 October 2014.

[34]In paragraph 4.3 of their report of 21 February 2015, the Examining Authority identified the “issues of importance to interested parties”. One of these was “(i) [whether] National Policy should be interpreted as stating that the need for nationally significant hazardous waste landfill sites has been demonstrated”. ARROW, together with Lancashire County Council, West Lancashire Borough Council, CPRE Lancashire and others, had “questioned the need for the application scheme”, pointing out that the existing landfill facility had an environmental permit to deposit approximately 150,000 tonnes per annum of hazardous waste, but that since 2006, less than 100,000 tonnes per annum of waste had been taken for disposal (paragraph 4.13, in a section of the report headed “Conformity with NPSs and other key policy statements”).

[35]Having acknowledged that “[the] issue of need is addressed in the NPS and summarised in [section] 3.1” (paragraph 4.14), the Examining Authority went on to say (in paragraph 4.16):

“4.16 It is stated in NPS [section] 3.1 that the [Secretary of State] “will assess applications for infrastructure covered by this NPS on the basis that need has been demonstrated”

. Need is therefore to be taken as established for the application project regardless of the past history of the existing landfill site.” and (in paragraph 4.18):

“4.18 In view of the importance of hazardous waste infrastructure to support economic activities and public services, and the requirement for England to be self-sufficient in disposal facilities, we give considerable weight to the need for the application project.”

[36]They also considered whether there was, specifically, a need for hazardous waste facilities in the North West region. They acknowledged that “the North West is itself a major generator of hazardous waste”; that “[the] existing provision for hazardous waste landfill in the region includes Minosus in Cheshire, the Ineos Chlor Randle Island Landfill in Runcorn, and the current Whitemoss Landfill site” (paragraph 4.26); but that there were “limitations as to the types of waste which can be deposited at Minosus, and evidence was submitted to the effect that the Ineos site had no remaining constructed void space available”, and that “[in] these circumstances, there is a realistic prospect that the application project would provide for regionally-generated hazardous waste arisings” (paragraph 4.27).

[37]Dealing with the relationship of the application project to policy for development in the Green Belt in the NPPF, the Examining Authority concluded that “… [during] its construction and its operational phase the project would … be inappropriate development in the [Green Belt]” (paragraph 4.52); that “by raising the ground level of a significant area [of generally open and relatively low-lying countryside south of the motorway] there would be an intrusion into the openness of the wider countryside which … would interfere with and have an impact on the openness of the [Green Belt]” (paragraph 4.56); but that, “… the overall impact on openness in the long term would be mitigated to some degree through the proposals for the restoration of the site” (paragraph 4.57).

[38]When dealing with the policies of the development plan, they noted that the inspector in the MWLP [the Joint Lancashire Minerals and Waste Local Plan Site Allocation and Development Management Policies] process “considered there would be a continuing need for a location that would provide capacity for the landfilling of hazardous waste of up to 17,000 tpa generated from within the plan area only” (paragraph 4.68). They repeated their conclusion that “the need for the application project is established in the NPS” (paragraph 4.70), and reminded themselves that “the NPS takes priority over the development plan in the determination of this application”, and that “[as] a result there is no requirement for [Whitemoss Landfill Ltd.] to demonstrate a specific local or regional need for the proposal” (paragraph 4.76). They concluded that “the application project would clearly meet the need identified in the MWLP”, and that although it “would provide well in excess of the capacity identified in the MWLP, … it is not the intention of the NPS to limit provision to that which would meet the locally-generated demand” (paragraph 4.77). The project “would contribute to self-sufficiency as required by the MWCS [the Joint Lancashire Minerals and Waste Local Development Framework Core Strategy], and fulfil the need identified in the MWLP”. Though there “may be some areas of conflict with other development plan policies”, these were “not so significant as to weigh heavily against the application project” (paragraph 4.78).

[39]The Examining Authority also noted that there had been “a relatively recent review of potential hazardous waste sites through the Development Plan process, where no alternatives to Whitemoss Landfill were identified”, and that “no alternative site was put forward as a result of the consultation process on the [environmental statement]” (in paragraph 4.85).

[40]In their “Conclusions on the main issues and whether very special circumstances exist”, the Examining Authority directed themselves that under section 104(3) of the 2008 Act “the application must be decided in accordance with the NPS, subject to certain exceptions”, and concluded that it “[did] not fall within any of the exceptions” (paragraph 4.316). They said it was “[fundamental] to [their] consideration of the White Moss project” that “the location of the application site [is] within the Green Belt” (paragraph 4.317).

[41]Under the heading “Considerations which weigh in favour of the application”, they said (in paragraphs 4.331 to 4.337):

“4.331 There is no target level of provision, or limit to the capacity or location of new facilities set within the NPS. It is left for operators to use their judgement as to the location and capacity of new facilities [4.23]. The importance of providing for all types of hazardous waste infrastructure, including landfill, is clear from the wide range of activities which rely on the availability of such infrastructure [4.17]. With growth in the economy, the level of arisings is expected to increase [4.15]. The availability of suitable facilities within England to meet the demands resulting from economic growth is essential to comply with the principles of self-sufficiency and proximity in the revised Waste Framework Directive [4.17]. 4.332 Hazardous waste infrastructure of national significance is necessary to meet a national rather than a regional or local need [4.28]. Nevertheless, in this case the project would be located in the North West region which is a national hub for treating and processing hazardous waste, and with its industrial legacy and the regeneration of the Liverpool/Merseyside and Manchester conurbations, the region is itself a major generator of hazardous waste [4.26]. The application project would be well located to serve this market. 4.333 Existing provision for hazardous waste landfill in the North West is limited [4.27]; the examination into the … MWCS identified a need for some 17,000 tpa of hazardous waste generated from within its plan area; and Policy LF3 provides support for new provision subject to certain criteria. 4.334 We have noted the arguments as to whether there is a need for a facility of the capacity proposed at White Moss. In view of the provisions of the NPS, we do not question the level of need. We do, however, recognise that there could be environmental consequences if the rate of deposits is not sufficient to fill the capacity of the voids, and address this through [requirement] 32 in the recommended [development consent order] [4.140]. 4.335 We find that in addition to the national need for hazardous waste landfill identified in the NPS, the application project would be well located to meet a regional need for such a facility. Without the application project, the existing Whitemoss Landfill would have no capacity beyond 2015, and the need identified in the examination of the MWCS would not be met [4.68]. … 4.337 … No alternative site has been put forward for hazardous waste landfill and the relatively recent review of hazardous waste sites through the Development Plan process did not identify any alternatives [4.85]. … .”

[42]In their “Balance and conclusions”, having acknowledged again (in paragraph 4.341) that the “application project would constitute inappropriate development which in itself is harmful to the [Green Belt]”, they said this:

“4.341 … In summary, we find the harm to the [Green Belt] and any other harm to comprise: • During the 20 years of construction and operation, an adverse impact on openness and conflict with a purpose of the [Green Belt] to protect the countryside from encroachment. • Following restoration, there would be some impact on openness but the restoration proposals would restore the rural character of the site such that there would no longer be encroachment. • A limited degree of harm to the character and appearance of the countryside during the 20 years of construction and operation. • The perception of a risk to health within the local community to which we attribute limited weight.”

As for the considerations on the other side of the balance, they said (in paragraph 4.342):

“4.342 In relation to the “other considerations” which fall to be weighed against harm to the [Green Belt] and any other harm, in summary we find as follows: • The presumption in favour of granting consent to applications for hazardous waste NSIPs, which clearly meet the need for such infrastructure established in the NPS. The application project would meet that need. • As a project which accords with the policy and requirements of the NPS, it would constitute sustainable development which attracts the presumption in favour of sustainable development set out in the NPPF. • The project would contribute towards meeting the principles of national self-sufficiency and of proximity in the revised Waste Framework Directive. • The importance of the facility to meet the need for hazardous waste disposal within the North-West of England. • The locational benefits of the landfill facility at White Moss, reflecting its proximity to the national motorway network, with consequently no significant adverse transport impacts and being easy to reach by businesses looking to manage waste. • The ability to make use of current infrastructure, reducing the environmental footprint of creating new facilities. • The limited life-span of the landfill operations and its consequent impacts. • The long-term benefits to biodiversity from the restoration proposals, replace an ecologically poor site with a more habitat and species-rich environment. • The other long-term benefits in terms of restoration of Grade 2 agricultural land, visual amenity and recreation.”

Their “overall conclusion” (in paragraph 4.343) was that “these “other considerations” are of such importance that they clearly outweigh the harm to the [Green Belt] and the limited other harm that [they had] identified”. And “[looking] at the case as a whole”, they concluded that “very special circumstances exist which justify the making of the White Moss Landfill [development consent order].” • During the 20 years of construction and operation, an adverse impact on openness and conflict with a purpose of the [Green Belt] to protect the countryside from encroachment. • Following restoration, there would be some impact on openness but the restoration proposals would restore the rural character of the site such that there would no longer be encroachment. • A limited degree of harm to the character and appearance of the countryside during the 20 years of construction and operation. • The perception of a risk to health within the local community to which we attribute limited weight.” • The presumption in favour of granting consent to applications for hazardous waste NSIPs, which clearly meet the need for such infrastructure established in the NPS. The application project would meet that need. • As a project which accords with the policy and requirements of the NPS, it would constitute sustainable development which attracts the presumption in favour of sustainable development set out in the NPPF. • The project would contribute towards meeting the principles of national self-sufficiency and of proximity in the revised Waste Framework Directive. • The importance of the facility to meet the need for hazardous waste disposal within the North-West of England. • The locational benefits of the landfill facility at White Moss, reflecting its proximity to the national motorway network, with consequently no significant adverse transport impacts and being easy to reach by businesses looking to manage waste. • The ability to make use of current infrastructure, reducing the environmental footprint of creating new facilities. • The limited life-span of the landfill operations and its consequent impacts. • The long-term benefits to biodiversity from the restoration proposals, replace an ecologically poor site with a more habitat and species-rich environment. • The other long-term benefits in terms of restoration of Grade 2 agricultural land, visual amenity and recreation.”

[43]In section 6 of their report, which dealt with the request for powers of compulsory acquisition, the Examining Authority directed themselves on the requirements of sections 122 and 123 of the 2008 Act (paragraphs 6.1 to 6.15) and a number of “general considerations”, including the need for the decision-maker to explore “[all] reasonable alternatives to compulsory acquisition”, and to “be satisfied that the purposes stated for the acquisition are legitimate and sufficient to justify the inevitable interference with the human rights of those affected” (paragraph 6.15). They concluded (in paragraph 6.38):

“6.38 In Section 4 we concluded that there are very special circumstances which clearly outweigh the harm to the [Green Belt] and any other harm from the application project. On the basis of this conclusion we find that there is a compelling case in the public interest for the development as a whole and there is a compelling case in the public interest for the acquisition of Plot 18B. Compulsory acquisition would therefore be compliant with [section] 122 of [the 2008 Act] as a whole.”

[44]They addressed “Human Rights Act 1998 considerations” (in paragraphs 6.52 to 6.56), concluding (in paragraph 6.52):

“6.52 In the event that [compulsory acquisition] rights are granted, Article 1 of the First Protocol [to the Human Rights Convention] is engaged. Article 8 is also engaged in relation to Plots 4 and 8A … . … [Development] could not take place in the manner proposed without this land. The other land to be acquired is necessary for the development to proceed in the manner intended. No objections have been raised by affected persons other than in respect of the WLBC-owned land, Plot 18B. Those affected would be entitled to compensation and … there is, in principle, the ability for this to be available. Interference with private rights in order to carry out the development would be both proportionate and justified in the public interest.”

[45]In their conclusions on the request for compulsory acquisition powers, they said “the case for [compulsory acquisition] must be dependent on and consistent with the view that the [development consent order] as a whole should be made” (paragraph 6.58), and (in paragraph 6.59):

“6.59 The [Examining Authority] has shown in the conclusions to Section 4 that it has reached the view that development consent should be granted. Having regard to all the particular circumstances in this case for compulsory acquisition, in the event that the Secretary of State decides to give consent and make the Order, there would be a compelling case in the public interest for acquisition. There is no disproportionate or unjustified interference with human rights so as to conflict with the provisions of the Human Rights Act 1998.”

[46]In their “Overall conclusion and recommendation on the DCO”, the Examining Authority said “that the recommended DCO provides the appropriate balance between the need to facilitate the development with the requirements necessary to mitigate potentially adverse consequences” (paragraph 7.22). And they confirmed their conclusion “that the potential harm to the [Green Belt] together with the limited other harm is clearly outweighed by the need for national hazardous waste infrastructure set out in the NPS, combined with the other benefits of the project including its location, the use of existing infrastructure, and the benefits following restoration”, and that “[as] a result the very special circumstances exist to justify making the White Moss DCO” (paragraph 8.11).

The Secretary of State’s decision letter

[47]The Secretary of State’s conclusions in his decision letter mirror the Examining Authority’s in their report. In considering “Conformity with National Policy Statements and other key policy statements”, he said (in paragraph 12):

“12. The Secretary of State agrees with the ExA that, in accordance with [section] 104(3) of the 2008 Act, the Application falls to be considered against the National Policy Statement for Hazardous Waste June 2013 (NPS) (ER 4.9), and that the NPS is the primary basis for decision-making on nationally significant infrastructure projects (NSIP) for hazardous waste (ER 4.12). He notes that, for the reasons set out in paragraph 3.1 of the NPS, need is to be taken as established for the Application regardless of the past history of the existing landfill site (ER 4.16). In view of the importance of hazardous waste infrastructure to support economic activities and public services, and the requirement for England to be self-sufficient in disposal facilities, the Secretary of State, like the ExA, gives considerable weight to the need for the Application (ER 4.18).”

[48]As for “Development Plan Policies”, he said (in paragraph 15):

“15. … Whilst he agrees with the ExA that there is no requirement for the Applicant to demonstrate a specific local or regional need for the proposal (ER 4.76), he notes that the development plan includes a number of policies against which it is appropriate to assess the project, and that many of the matters covered are also raised in the NPS (ER 4.76). Overall, he agrees with the ExA that the Development would contribute to self-sufficiency as required by the MWCS, and fulfill the need identified in the MWLP, and that while there may be some areas of conflict with other development plan policies, these are not so significant as to weigh heavily against the Development (ER 4.78).”

[49]When considering the “Green Belt balance”, the Secretary of State agreed (in paragraphs 58 to 62) with the relevant conclusions of the Examining Authority, including their assessment, in paragraphs 4.330 to 4.340 of their report, of the “other considerations” weighing in favour of the development, to be set against the harm to the Green Belt and any other harm (paragraph 61). He specifically agreed (also in paragraph 61) with the Examining Authority’s summary in paragraph 4.342 of their report. Of the nine considerations to which he referred in the corresponding summary of his own, the first and fourth were these:

“ • the presumption in favour of granting consent to applications for hazardous waste NSIPs which clearly meet the need for such infrastructure is established in the NPS; and the Development would meet that need; … • the importance of the facility to meet the need for hazardous waste disposal within the North-West of England; …”

. He agreed with the Examining Authority’s conclusion in paragraph 4.343 of their report that, as he put it (in paragraph 62), “the other considerations are of such importance that they clearly outweigh the harm to the Green Belt and the limited other harm that has been identified …”, and that “very special circumstances exist which justify the making of the Order”. • the presumption in favour of granting consent to applications for hazardous waste NSIPs which clearly meet the need for such infrastructure is established in the NPS; and the Development would meet that need; … • the importance of the facility to meet the need for hazardous waste disposal within the North-West of England; …”.

[50]The Secretary of State also agreed with the Examining Authority, in paragraph 6.59 of their report, that there was “a compelling case in the public interest for [compulsory acquisition]” and “no disproportionate or unjustified interference with human rights so as to conflict with the provisions of the Human Rights Act 1998”. He concluded too that there was a “compelling case in the public interest for the creation and acquisition of … new rights”, and that “granting this power would also not give rise to any disproportionate or unjustified interference with human rights so as to conflict with the provisions of the Human Rights Act 1998” (paragraph 77 of the decision letter).

[51]Drawing his conclusions together, he said that he considered “the harm to the Green Belt together with the limited other harm he [had] identified” was “clearly outweighed by the need for national hazardous waste infrastructure set out in the NPS, together with the other benefits of the project … ; and that as a result very special circumstances exist to justify making the [development consent order]” (paragraph 88); and that “the requests for compulsory acquisition powers meet the tests in [sections] 122 and 123 of the 2008 Act, with a compelling case in the public interest for the land to be acquired compulsorily” (paragraph 89).

[52]The development consent order included, in Schedule 2, a number of conditions, one of which provided for the “Review of void consumption”, as recommended in the Examining Authority’s requirement 32, to which they had referred in paragraph 4.334 of their report.

Did the Secretary of State misinterpret or misapply policy in the NPS?

[53]Mr Wolfe submitted that the Secretary of State misdirected himself in his understanding and application of the policy in section 3.1 of the NPS – as had the Examining Authority in their report. He thought – wrongly – that the policy required him to assume a need for a hazardous waste landfill facility on the application site with a capacity of 150,000 tonnes per annum. He thought – again, wrongly – that the policy compelled him to assume a need for a facility of whatever size a developer might choose to propose, and therefore that he must not evaluate competing evidence and submissions as to the extent of the real need, if any. He prevented himself from considering whether a facility of the particular size proposed was actually needed. This made it impossible for him to deal as he should with at least three basic issues: first, whether there truly was a need for this proposed development, and “very special circumstances” justifying its approval as “inappropriate development” in the Green Belt; secondly, whether there was a “compelling case in the public interest” for Whitemoss Landfill Ltd. to be given powers of compulsory acquisition over third party land; and thirdly, whether the development itself, and the compulsory acquisition of land, would be a proportionate interference with the landowners’ human rights under the European Convention on Human Rights, including their right to property under Article 1 of the First Protocol – and, in particular, whether a less intrusive measure could have been used and whether a fair balance had been struck between Convention rights and the public interest (see the judgment of Lord Sumption in Bank Mellat v Her Majesty’s Treasury (No. 2) [2014] A.C. 700, at paragraph 20). If a hazardous waste landfill facility was shown to be needed, but not of the size proposed, should development consent be granted, and powers of compulsory acquisition given, for a facility as large as this? The answer, Mr Wolfe submitted, must be “No”. And if the need for a facility of a capacity of more than 100,000 tonnes per annum was not demonstrated, the Secretary of State would have had no power to make a development consent order for the scheme required.

[54]I cannot accept that argument. On a fair reading of the Examining Authority’s report and the Secretary of State’s decision letter, I do not think it can be said that either betrays any misunderstanding or a misapplication of the relevant policies in the NPS – including the policy in section 3.1.

[55]These proceedings do not – and could not – attack the NPS itself as unlawful. Such a challenge could only have been brought under section 13 of the 2008 Act. There has been none. Nor can it be said that the Secretary of State’s decision is invalidated by his reliance on a policy which exceeded his power to issue a national policy statement under section 5 of the 2008 Act. Such an argument would be misconceived. The issue for us is not whether the NPS is lawful, but whether, in this case, it was lawfully construed and applied.

[56]Neither the Examining Authority nor the Secretary of State misled themselves as to what the policy in section 3.1 says. The Examining Authority quoted it, accurately, in paragraph 4.16 of their report – which the Secretary of State noted in paragraph 12 of his decision letter. They also referred to some of the salient passages in the text of the NPS, which explain the policy in section 3.1.

[57]What did the Examining Authority mean when they said in paragraph 4.16 of their report that “[need] is … taken to be established for the application project …”, and when they referred in paragraph 4.18 to “the need for the application project” – with the Secretary of State’s agreement in paragraph 12 of his decision letter? In my view, they were doing what the policy in section 3.1 required of them. They were acknowledging that the application project, because it fell within the scope of the policy in section 3.1 of the NPS and would contribute to the meeting of that need, was one of those projects for which a national need was established by the policy. Like any other infrastructure project of a relevant type and of the requisite scale, this one engaged the policy in the final sentence of section 3.1. Under that policy, therefore, there was a need for “the application project”. As the policy is explicitly intended to guide decision-making on applications for development consent, this proposed development, like any other relevant proposal, had therefore to be assessed “on the basis that need had been demonstrated”. In this sense, and to this extent, need was established for it by national policy.

[58]The Examining Authority did not read more into the policy than is actually there. They were not saying that the need established by the policy in section 3.1 of the NPS was a specific requirement for a facility of a particular capacity – whether 150,000 tonnes per annum or any other capacity above 100,000 tonnes per annum – or in a particular location – whether on this application site or any other. Rather, they were acknowledging, rightly, that this particular project was one to which the general policy in the final sentence of section 3.1 of the NPS applied, and for which, therefore, a national need was deemed by government policy to exist – and that the existence of this need for the project did not depend on the scale, capacity and location of the development proposed, or on the planning history of the existing landfill site. They clearly understood that. And so did the Secretary of State.

[59]The Examining Authority’s other conclusions referring to NPS policy as it relates to the need for the project are all consistent with the correct interpretation of that policy. In paragraph 4.77 of their report they recognized, rightly, that national policy in the NPS does not intend to limit the provision of new hazardous waste facilities to the meeting of “locally-generated demand”; in paragraph 4.331, that the NPS does not set any “target level of provision, or limit to the capacity or location of new facilities”, leaving it to “operators to use their judgement as to the location and capacity of new facilities”; in paragraph 4.332, that hazardous waste infrastructure “of national significance” is necessary to meet “a national rather than a regional or local need”; in paragraph 4.334, that, in view of the provisions of the NPS, “the level of need” was not to be questioned; in paragraph 4.342, that there is a “presumption in favour of granting consent to applications for hazardous waste NSIPs, which clearly meet the need for such infrastructure established in the NPS”, and that the “application project would meet that need”. All of this shows a sound understanding of NPS policy, including the policy in section 3.1. The same may be said of the Secretary of State’s relevant conclusions, in paragraph 61 of his decision letter.

[60]In view of the requirement in section 104(2) of the 2008 Act that the Secretary of State “must have regard to” any relevant national policy statement, and the requirement in section 104(3) that he must decide the application “in accordance with” any such national policy statement unless one of the relevant exceptions apply, he would have been at fault if he had not taken into account the national need established in section 3.1 of the NPS, and the presumption in paragraph 4.1.2.

[61]In this case the Secretary of State found himself able to make his decision in accordance with the NPS, and did.

[62]In paragraph 4.18 the Examining Authority said they gave “considerable weight” to the need for the application project – by which, as is clear from the context, they meant the national need for such projects established in the NPS. In paragraph 12 of his decision letter the Secretary of State agreed. He was entitled to give that need the weight he did. This was a matter of planning judgment for him, subject only to challenge on public law grounds (see the speech of Lord Hoffmann in Tesco Stores Ltd. v Secretary of State for the Environment [1995] 1 W.L.R. 759, at p.780). To assess the weight to be given to the need for the project under the policy in section 3.1 of the NPS as “considerable” was not irrational. To give “considerable” weight to a need established in a statement of national planning policy is not, on the face of it, a surprising planning judgment, let alone an unreasonable one. Indeed, it was consistent with the policy “presumption” in paragraph 4.1.2 of the NPS, the “presumption in favour of granting consent to applications for hazardous waste NSIPs, which clearly meet the need for such infrastructure in this NPS”.

[63]Neither the Examining Authority nor the Secretary of State concluded that the need for the project under NPS policy was itself greater, or the weight to be given to it increased, by the fact that the proposed facility would have a capacity of 150,000 tonnes per annum, rather than, say, 100,001 tonnes per annum, or some other level of capacity in between. The Secretary of State simply gave the need “considerable weight”. But he did not leap from that to the conclusion that the development must be approved. Important as it was, he did not treat the policy need for the development as the single decisive factor in his assessment of the planning merits.

[64]Mr Wolfe criticized the Examining Authority’s observation in paragraph 4.334 of their report that “[in] view of the provisions of the NPS”, they did “not question the level of need”. I do not think that criticism is justified. Contrary to Mr Wolfe’s submission, the Examining Authority were not, without scrutiny or question, equating “the level of need” under NPS policy with the capacity of the facility proposed in Whitemoss Landfill Ltd.’s application. They were simply acknowledging, correctly, that the policy in section 3.1 of the NPS does not set any maximum or minimum “level of need” for the facilities to which it relates, or make the need for any particular proposal depend on its scale or capacity. And in paragraph 61 of his decision letter the Secretary of State agreed. The Examining Authority were alive to the possibility that the “rate of deposits” might not turn out to be “sufficient to fill the capacity of the voids”, and dealt with this possibility by providing for the “Review of void consumption” in requirement 32, which was incorporated in Schedule 2 to the development consent order.

[65]There were, it should be remembered, two further needs to be considered in this case, both of which played an important part in the Examining Authority’s assessment of the project. As well as the national need for the project arising from the NPS, they found both a regional need – a need for additional hazardous waste infrastructure in the North-West region, and also a local need – for additional capacity in the MWLP area.

[66]The regional need arose from the “limitations as to the types of waste that can be deposited at [the] Minosus [landfill site]” and the lack of further “void space” at the Ineos site (paragraph 4.27 of the report). The existing provision for hazardous waste landfill in the region was “limited” (paragraph 4.333). The Examining Authority concluded that this development could meet that regional need (paragraphs 4.26 and 4.27), and that it “would be well located” to do so (paragraphs 4.332 and 4.335). They attached “importance” to this consideration (paragraph 4.342). And the Secretary of State agreed (in paragraph 12 of his decision letter).

[67]The local need was identified in the MWLP. At that tier of planning for the provision of hazardous waste infrastructure, as the Examining Authority acknowledged, the application site had itself been “identified in an early iteration of the MWLP as suitable for hazardous waste landfill”. The “need identified in the MWLP for additional capacity [had] not been fulfilled in the development of any other site”. This project “would clearly meet the need identified in the MWLP” (paragraph 4.77). It would “contribute to self-sufficiency as required by the MWCS”, and would “fulfil the need identified in the MWLP” (paragraph 4.78). The Secretary of State agreed (in paragraph 15 of his decision letter). Without it, “the need identified in the examination of the MWCS would not be met” (paragraph 4.335). The fact that the proposed development would provide “well in excess of the capacity identified in the MWLP” did not negate those conclusions on the ability of the development to meet a local need, because – as the Examining Authority said – it was “not the intention of the NPS to limit provision to that which would meet the locally-generated demand” (paragraph 4.77).

[68]This was not a case in which the Secretary of State had to determine, at the same time, two or more applications for development in a particular area, each promoted as nationally significant infrastructure projects under the 2008 Act, each capable of meeting an identified regional or local need for new hazardous waste facilities of a particular type within the scope of the policy in section 3.1 of the NPS. When that happens, the Secretary of State may find it necessary to assess the comparative merits of the proposals as competing or alternative schemes, or to consider their potential cumulative effects, and perhaps to grant development consent only for one. He may find, in the circumstances, that the weight to be given to the national need under NPS policy is not enough to outbalance the planning objections to one or more of the proposals before him.

[69]The task facing the Secretary of State here was more straightforward. Only one application had to be determined. There was no rival scheme to compare with Whitemoss Landfill Ltd.’s project. To discharge the requirements of section 104 of the 2008 Act, the Secretary of State had to undertake an appropriate balance of considerations weighing for and against this particular proposal, giving NPS policy the statutory priority it was due. He also had to be satisfied, under the provisions of sections 122 and 123, that there was a compelling case in the public interest for the compulsory acquisition of land, and that both the development itself and that compulsory acquisition of land would be a proportionate interference with the landowners’ human rights.

[70]In my view, in all these respects the Secretary of State determined the application lawfully, complying with the requirements of the statutory scheme. Whether the outcome would have been different if the proposal for the site had been a hazardous waste landfill facility of greater capacity than 150,000 tonnes per annum, or less, is immaterial.

[71]I do not accept that the Secretary of State went wrong in his approach to the justification for the project as inappropriate development in the Green Belt. He did exactly what paragraph 5.10.15 of the NPS says he should. In paragraph 4.341 of their report the Examining Authority referred to the four main considerations constituting “harm to the [Green Belt] and any other harm”. In paragraph 4.342 they referred to the considerations, nine in all, which in their view had to be weighed against the harm. Two of those nine considerations related to the need for the project: the fact that it enjoyed “the presumption [in the NPS] in favour of granting consent to applications for hazardous waste NSIPs, which clearly meet the need for such infrastructure established in the NPS”, and “[the] importance of the facility to meet the need for hazardous waste disposal within the North-West of England”. The other seven were particular attributes and benefits of the proposal: its compliance with the “the policy and requirements of the NPS” and the finding that it was “sustainable development”; its contribution to “meeting the principles of national self-sufficiency and … proximity in the … Waste Framework Directive”; its “locational benefits … reflecting its proximity to the national motorway network …”; its “ability to make use of current infrastructure …”; the “limited life-span of the landfill operations and its consequent impacts”; the “long-term benefits to biodiversity from the restoration proposals …”; and “[the] other long-term benefits in terms of restoration of Grade 2 agricultural land, visual amenity and recreation”. The Examining Authority were able to conclude, in paragraph 4.343, that these “other considerations”, taken together, “clearly [outweighed] the harm to the [Green Belt] and the limited other harm”, and that “very special circumstances” existed to justify the making of the development consent order. They repeated that conclusion at the end of their report, in paragraph 8.11. And the Secretary of State agreed with it (in paragraph 62 of his decision letter).

[72]It is plain therefore that neither the Examining Authority nor the Secretary of State regarded the national need under the policy in section 3.1 of the NPS as an automatically overriding factor in the planning balance that had to be struck for this particular project. They did not treat it as decisive, on its own, of the Green Belt issues, or of any other issue. It did not displace any other relevant factor, on either side of the balance. It was only one of several considerations, which, in combination, were found to be sufficiently strong to enable consent for the project to be granted. The ability of the development to address the regional need was a separate and additional factor. So were each of the attributes and benefits to which the Examining Authority referred to in paragraph 4.342 of their report. The weight given to those considerations, both individually and together, was ultimately for the Secretary of State’s planning judgment, which in my view he exercised lawfully. The “considerable” weight he gave to the national need for the project under NPS policy was, as I have said, within the range of reasonable planning judgment. It does not indicate any misinterpretation or misapplication of NPS policy.

[73]Similar conclusions apply to the Secretary of State’s consideration of the evidence and arguments on the need for the development consent order to include provision authorizing the compulsory acquisition of land under sections 122 and 123 of the 2008 Act, and on the question of whether the development itself, and the compulsory acquisition of land, would be a proportionate interference with the landowners’ human rights. Again, I do not accept that either the Examining Authority or the Secretary of State fell into error.

[74]As one would expect, the Examining Authority based their conclusions on the need for powers of compulsory acquisition squarely upon their assessment of and conclusions on the planning merits of the proposed development. Having concluded that the case for approving the project was secure – on the basis that the “other considerations” they had identified were “of such importance that they clearly outweigh the harm to the [Green Belt] and the limited other harm”, so that there were “very special circumstances … which justify the making of the [development consent order]” (paragraph 4.343 of their report) – they went on to consider the evidence and representations for and against the granting of the powers of compulsory acquisition required to enable the project to go ahead. As they said, the case for compulsory acquisition depended on the view that the development consent order “as a whole” should be made (paragraph 6.58). Their conclusion that if the development consent order were made there would be a “compelling case in the public interest for acquisition” was founded on the conclusion in section 4 of their report that development consent should be granted (paragraph 6.59) – and the Secretary of State agreed (in paragraph 77 of his decision letter). Underpinning that conclusion were the nine “other considerations” set out in paragraph 4.342 of the report.

[75]Two things follow. First, if, as I have concluded, the Examining Authority and the Secretary of State neither misinterpreted nor misapplied NPS policy in their assessment of the planning merits, they made no such error in concluding that powers of compulsory acquisition ought to be included in the development consent order under sections 122 and 123. And second, the national need for the project under the policy in section 3.1 of the NPS did not play any greater role than it lawfully could in the assessment of the factors weighing in favour of compulsory acquisition powers being granted. It was, again, only one of several considerations in that assessment.

[76]The same goes for the Examining Authority’s and the Secretary of State’s consideration of the landowners’ human rights, under article 1 of the First Protocol and article 8. The conclusion again was clear, and based on a proper consideration of the planning merits and of the need for powers of compulsory acquisition to be included in the development consent order. Both the Examining Authority and the Secretary of State were satisfied that “[interference] with private rights in order to carry out the development would be both proportionate and justified in the public interest” (paragraph 6.52 of the Examining Authority’s report and paragraph 77 of the Secretary of State’s decision letter). And in the light of their view that development consent for the project should be granted, and that, if it were granted, “there would be a compelling case in the public interest for acquisition”, they were also satisfied that there was “no disproportionate or unjustified interference with human rights so as to conflict with the provisions of the Human Rights Act 1998” (paragraph 6.59 of the report and paragraph 77 of the decision letter). I do not think that conclusion can be faulted. It discloses no misinterpretation or misapplication of national policy in the NPS. It is both lawful and sound.

[77]In my view, therefore, the Secretary of State neither misinterpreted nor misapplied any policy of the NPS in making the development consent order – nor did he otherwise err in law.

Conclusion

[78]For those reasons I would dismiss the claim for judicial review.

[79]I agree.

The Senior President of Tribunals

[80]I also agree.

Scarisbrick, R (On the Application Of) v Secretary of State for Communities and Local Government [2017] EWCA Civ 787

Introduction

The issue in the claim

The 2008 Act

The application for a development consent order

The NPS

What does the policy in section 3.1 of the NPS mean?

The Examining Authority’s report

The Secretary of State’s decision letter

Did the Secretary of State misinterpret or misapply policy in the NPS?

Conclusion

The Senior President of Tribunals

Cited in 9 later judgments