Golf Operations Ltd v First Secretary of State [2005] EWHC 2218 (Admin)

Case No CO/941/2005[2005] EWHC 2218 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 19th July 2005
Strand
London WC2
B E F O R E:
MR JUSTICE OUSELEY
Between
GOLF OPERATIONS LIMITEDClaimant-v-
Between
FIRST SECRETARY OF STATEDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR ROBERT WHITE (instructed by Messrs Scott Fowler) appeared for CLAIMANTMS SHAHEEN RAHMAN (instructed by the Treasury Solicitor) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE OUSELEY: This is an application under Section 288 of the Town and Country Planning Act 1990 to quash the decision of an Inspector dated 20th December 2004 in which he dismissed an appeal made by the claimant against the decision of Northamptonshire County Council, dated 25th October 2003.[2]The County Council had refused permission for development which comprised an 18-hole golf course and a 9-hole golf course with ancillary facilities, including a clubhouse, maintenance building and car park. The development was intended to be a pay-as-you-play golf course aimed primarily at novice golfers. It was intended to construct, as part of the course, a series of mounds, 2 to 4 metres high, between the fairways, as an aid to these novices. This construction would require the importation of about 429,000 cubic metres of inert waste, the import of which would fund the construction of the golf course. The Inspector dismissed the appeal after holding a public inquiry. The application had been dealt with by Northamptonshire County Council because the extent of the importation of waste material made it a County matter.[3]The Inspector, it was agreed, correctly identified the four main issues. These were: firstly, whether the incorporation of inert fill into the construction of the golf course represented the Best Practicable Environment Option (BPEO) for this material, having regard to local policies; secondly, the need for a pay-as-you-play golf course in this location, including the need for the level of mounding sourced from inert waste; thirdly, whether the proposal would have an adverse impact upon the landscape character of the area; and lastly, the loss of best and most versatile agricultural land.[4]It is accepted that, although there were these three other issues, it was the first issue which was critical, because of the way in which it affected the Inspector's reasoning on the other issues. If the claimant succeeded on that issue, it was accepted that the decision letter should be quashed. The other reasons were not freestanding ones which could sustain the decision. The claimant's challenge therefore revolves around the Inspector's approach to BPEO. BPEO[5]BPEO is a non-statutory concept, the relevance of which to the application and appeal derives in this way. Schedule 4 to the Waste Management Licensing Regulation 1994 SI 1056 implements the Waste Framework Directive. At paragraph 2.1 of Schedule 4 it sets out the duty as follows:
"... the competent authorities shall discharge their specified functions, insofar as they relate to the recovery or disposal of waste, with the relevant objectives."
The Local Planning Authority and Secretary of State are competent authorities for these purposes and the taking of decisions on planning applications and appeals are specified functions. The relevant objectives with which those functions have to be discharged in relation to the disposal of waste are:
"(a) ensuring that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment and in particular without- (i) risk to water, air, soil, plants or animals; or (ii) causing nuisance through noise or odours; or (iii) adversely affecting the countryside or places or special interest; (b) implementing, so far as material, any plan made under the plan-making provisions."
Plans made under the plan-making provisions include not only the Northamptonshire Structure Plan and the Northamptonshire Minerals Local Plan and will include, when adopted, the Northamptonshire Waste Local Plan, but importantly include the National Waste Strategy. This has been prepared pursuant to Section 44A of the Environment Protection Act 1990. That strategy has to include the Secretary of State's policies for attaining what are essentially the same objectives as those spelt out in paragraph 4, Schedule 2 to the Waste Management Licensing Regulations. Hence, the Inspector in deciding the appeal had to decide it with the objective in mind of implementing, so far as material, the National Waste Strategy.[6]The National Waste Strategy adopts the Royal Commission definition of BPEO, which is that it is the outcome of a systematic decision-making procedure which:
"... establishes, for a given set of objectives, the option that provides the most benefits or the least damage to the environment as a whole, at acceptable costs, in the long term as well as in the short term."
The elaboration in the National Waste Strategy shows:
"Decisions on waste management, including decisions on suitable sites and installations for treatment and disposal, should be based on local assessment of the [BPEO]. The right way to treat particular waste streams cannot be determined simply. The objective is to choose the [BPEO] in each case. BPEO varies from product to product, from area to area and from time to time. It requires waste managers to take decisions which minimise damage to the environment as a whole, at acceptable costs, in both the long and the short term... In determining BPEO we will expect those making decisions to take account of three key considerations: • the waste hierarchy. Within the hierarchy the Government and the National Assembly do not expect incineration and energy recovery to be considered before opportunities for recycling and composting have been explored... • the proximity principle requires waste to be disposed of as close to the place of production as possible. This avoids passing the environmental costs of waste management to communities which are not responsible for its generation, and reduces the environmental costs of transporting waste. • self-sufficiency. The Government believes that waste should not be exported from the UK for disposal. Waste Planning Authorities and the waste management industry should aim, wherever practicable, for regional self-sufficiency in managing waste."
This description emphasises that a BPEO decision is by no means the same as a decision as to where a particular proposal fits within the waste hierarchy. True it is that disposal is at the bottom of the hierarchy, below reuse, and that the National Waste Strategy points to "the need to move substantially away from landfill towards recycling, composting and energy from waste" in identifying suitable sites. But it is establishing BPEO for any particular waste stream which is the overarching requirement in waste decision-making as the whole of the National Waste Strategy makes clear and as some of the material quoted above shows.[7]The Landfill Regulations 2002 SI 1559 are also relevant to the claimant's arguments. By Regulation 3, a "landfill" is a waste disposal site for the deposit of waste on to or into land. But it falls outside that definition by Regulation 4 where suitable inert waste is used for redevelopment, restoration and in-filling work or for construction purposes. The claimant's case was that that was what the proposal for mounding alongside the proposed fairways would amount to. The evidence at the Inquiry established, and this was not disputed before me, that construction and demolition waste was not required by conditions, on those planning permissions which required restoration through the import of such waste, to be sorted into inert and non-inert waste and that there was a component of construction and demolition waste which was not inert. It was therefore contended by the claimant that the use of that unsorted waste constituted waste disposal by landfill and that that was lower down the hierarchy than the use for redevelopment and construction which the claimant's proposal involved for inert waste.[8]The thinking behind that sort of point was considered by the Inspector who held an inquiry into the Northamptonshire Waste Local Plan. She concluded at paragraph 26:
"The extent to which construction and demolition waste, including sub-soil from site clearance, could be regarded as 'inert' is not entirely clear. It is questionable whether the use of such waste, as currently sourced, would conform to the definition of inert waste under the Landfill Directive and corresponding Regulations. The evidence available to the Inquiry, both at the Round Table Session and at site inspection, is that construction/demolition waste is unseparated and mixed to the point where it is likely to contain items that would disqualify it from classification as inert waste. Thus, its use in the restoration of minerals sites would appear to be caught by the Landfill Directive and the Landfill Regulations and its disposal, even if for restoration purposes, would be classed as landfill."
[9]The Waste Local Plan Inspector also pointed out that the non-inert nature of construction and demolition waste would mean that the restoration by landfill of sites in the River Nene Valley would require a high and costly standard and it could not be assumed that the necessary inert material would be available. If construction and demolition waste were not separated out between the truly inert and the rest, there could be a shortage of suitable mineral extraction sites for construction and demolition waste, which in turn might lead to the need for more landfill sites. The Decision Letter[10]The Inspector set out accurately the arguments before him as follows:
"It is the Appellant's case that the imported material would consist of inert soils only, sourced from greenfield development sites that arise in this part of the County. The waste would be screened first, if necessary, at the haulage contractor's depot. The scheme would not therefore be a landfill operation as defined in Regulation 2 of the Landfill Regulations but 'the use of suitable inert waste for redevelopment, restoration and filling-in work or for construction purposes', as defined in Regulation 4. It would thus amount to re-use of a waste material, which lies higher up the waste hierarchy than the disposal of unseparated waste by landfill as practised locally at exhausted mineral workings." "
The use of inert waste for the restoration of former mineral workings is the preferred alternative of the County Council. It claims that the appeal operation would prejudice the restoration of existing and permitted mineral extraction sites in the area, and thus the objectives of policy NMLP 36 of the Minerals Local Plan, as well as restricting the availability of much needed cover at the County's landfill sites."[11]The Inspector then considered the report of the Inspector into the Waste Local Plan to which I have referred and to which I shall return. He considered the availability of void space and the need for it to be filled, as well as the allocation of further sites for mineral extraction which would require filling for restoration purposes. He noted the Local Planning Authority's historical experience that there had been an excess of waste facilities which had led to delays in the restoration of mineral extraction sites and landfill sites.[12]He then pointed to what the Local Planning Authority said, which he appears to have accepted, that:
"the appeal proposal would still mean that a large percentage of the inert soils arising in the County each year for a three-year period would not be available for landfill or normal surface restoration purposes."
He then concluded:
"18. From the above it is clear that this proposal would compete in the market to attract inert soils and perpetuate the delay in the necessary restoration of both former mineral workings and landfill sites. The fact that the EA now states that minerals workings in the Nene Valley can only accept inert waste in future only adds to the competition that will ensue for the available inert waste in the area and the proposal would therefore conflict with the objectives of policy NMLP36 of the Minerals Plan. Whereas need is not directly a criterion for policy 25 of the WLP, it is necessary to have regard to the local and regional waste management and disposal requirements as part of policy W3 of the Structure Plan. I consider therefore that the use of the waste for mounding is not justified when compared with the existing need for the waste for minerals workings and landfill site restoration. "19. I acknowledge that the waste is likely to be sourced from local construction sites in accordance with the proximity principle and that this would also comply with the principle of regional self-sufficiency. But the same would be likely to apply to inert waste deposited at the County's exhausted minerals workings or landfill sites. "20. I also agree that the proposal would not be a landfill operation and that it is caught by Regulation 4 of the Landfill Regulations. But whether it is a re-use or a disposal of waste is immaterial in terms of the BPEO in this case, because I only need to compare the operation with that of the alternatives available. In this respect, in my view, the claimed re-use of the waste soils at the appeal site is no different to that arising if this waste were used for the final restoration of a minerals working, or the re-instatement of a landfill site for that matter, where the sites would be restored to beneficial use. In other words, if the use of the waste for the proposed mounding for a golf course is a re-use then so is the use of the soil to return a site to agriculture, for instance. I do not accept therefore that the proposed use would be higher up the waste hierarchy than the alternative uses available for this waste. "21. Waste Strategy 2000 states that the BPEO procedure establishes the option that provides the most benefits or the least damage to the environment as a whole, at acceptable cost, in both the long and short term. Consideration must be given to the three key issues of the waste hierarchy, the proximity principle and self-sufficiency as well as any social, economic, environmental and land use impacts. There are social and economic benefits in providing a recreational facility such as this where healthy exercise can be enjoyed at a reasonable cost. These need to be compared with the benefits arising from the protection and conservation of the environment and land-use as a result of using this waste stream for the restoration of exhausted mineral workings and completed landfill sites to beneficial use. To my mind these latter benefits substantially outweigh those resulting from its use for constructing a golf course, particularly when one takes into account the fact that this would be a greenfield site, where it is acknowledged that 58ha of BMV agricultural land would be lost. "22. Accordingly, I conclude that the incorporation of inert fill into the construction of the golf course does not represent the BPEO for this material, having regard to local planning policies."
I note in passing that policy 36 of the Northamptonshire Minerals Local Plan seeks the restoration of mineral extraction sites to their original landform. The challenge: Grounds One to Three[13]The first three grounds of challenge are interrelated. All attacked the Inspector's apparent conclusion that the use of inert waste for mounding on the golf course was at the same level in the waste hierarchy as would be its use in the restoration of landfill or mineral extraction sites. This error was then said to have been fed into his conclusion that the BPEO for this waste stream was not reuse for the development or construction of golf courses. All this was said to stem from the Inspector's failure to draw the necessary distinction between:(1) construction and demolition waste, which would be screened for the purposes of this proposal, would thus be inert waste and thus its use on the golf course would not be landfill or waste disposal but reuse; and(2) unscreened construction and demolition waste, which would not be inert and the use of which in landfill and mineral extraction sites would constitute landfill or waste disposal. If landfill, it would represent a use away from which the National Waste Strategy was seeking to move and, if disposal, it was a use below reuse in the hierarchy.[14]Mr White for the claimant accepted that if precisely the same screened waste had been used in the restoration of landfill or mineral extraction sites, it would have been legitimate for that to have been held equivalent to the golf course use and he could not have complained about such a conclusion. He accepted also that he could not have complained if the Inspector had spelt out why he was treating use in landfill and mineral extraction sites as equivalent in the waste hierarchy or in the BPEO assessment to reuse by way of mounding on the golf course.[15]In essence, it was said, the Inspector's approach, in treating as of equal rank both reuse on the golf course and use in the restoration of landfill and mineral extraction sites, would have been unobjectionable if he had been talking of the same materials. But his conclusion in the last sentence of paragraph 20 of his decision letter introduced by the word "therefore" could not be justified when the material which would be used in the landfill or mineral extraction site was not the same as inert waste, because it would be unscreened construction and demolition waste.[16]The claimant's first three related grounds of challenge were thus that the Inspector had ignored relevant conclusions of the Waste Local Plan Inspector or had failed to give adequate reasons for disagreeing with those conclusions. He had ignored her acceptance that construction and demolition waste used in landfill and mineral extraction sites was not screened and so was not inert nor required to be. This was also consistent with answers given in cross-examination by the Local Planning Authority's witness. Conclusion[17]I accept that construction and demolition waste in the area of Northamptonshire County Council is not generally screened nor required to be screened at present by conditions on the planning permissions for landfill and mineral extraction sites and that it cannot therefore all or necessarily even in part be said to be inert.[18]The Inspector has not drawn upon any significant distinction between screened and thus inert construction and demolition waste, and unscreened construction and demolition waste which may not therefore be inert; see, for example, paragraphs 19 and 20 of the decision letter. This is the distinction drawn by the claimant. It is a distinction acknowledged as being of some importance by the Waste Local Plan Inspector, in the context of the need to increase the supply of truly inert materials used in the restoration of flood plain sites and in seeing how much void space was needed to cope with non-inert construction and demolition waste.[19]The appeal Inspector accepted that the claimant's proposed use would be a reuse and not landfill for the purposes of the Landfill Regulations and in paragraph 20, second sentence, took the view that the use of inert fill in the restoration of mineral extraction sites or landfill sites would be waste disposal as the claimant had contended at the inquiry.[20]The Inspector to my mind approached matters in the way in which he did, because to him the distinction between the use of inert waste for mounding on the proposed golf course and the disposal of waste, even if it was unseparated inert and non-inert waste, to fill and so restore worked-out mineral extraction sites or for the reinstatement of landfill sites for beneficial use, was one of language and not of substance. He approached the latter as involving restoration and the use of non-inert waste for that purpose as restoration. Although that was not reuse in the Landfill Regulations definition because the waste was not inert, it was in essence in the same level in the hierarchy. It is clear from his refusal to draw the distinction relied on by the claimant that he was aware of it. He simply did not attribute to it the significance which the claimant argued for. Instead he regarded it in this case as an essentially artificial distinction. He did not see the waste stream, screened or unscreened, as merely being dumped in a landfill site for want of anything better, such as golf course construction. He saw it as being used in a restoration of mineral extraction sites and in the reinstatement of landfill sites for beneficial use. This explained why he did not see his approach as conflicting with the move away from landfill.[21]I would accept that paragraph 20 does not draw a clear distinction between the waste hierarchy and the BPEO when it should have been recognised that the waste hierarchy was but a component in the BPEO analysis. However, in reality, on the Inspector's approach, there was no very large distinction between how he assessed the position in the waste hierarchy and how he assessed the BPEO. It is very clear from paragraph 22 of the decision letter that he thought greater benefits would be derived from using this waste stream for the restoration of exhausted mineral workings and the restoration of landfill sites to beneficial use, than from using it on a golf course for mounding. That is a wholly legitimate planning conclusion for him to come to. It is also clear from his analysis that even if he had concluded on a legalistic approach that the Landfill Regulations meant that use for golf course mounding as opposed to the restoration of exhausted mineral workings or a landfill site was higher in the hierarchy, it would not have affected his BPEO conclusions.[22]The fallacy in the claimant's argument is this: the Inspector did not ignore or overlook the distinction on which the claimant's arguments relied. He regarded it as unimportant. That is a planning judgment to which he was entitled to come. The waste stream here could be used to provide restoration for mineral extraction and landfill sites even if not sorted, because of the considerable quantity needed; even in the absence of planning permissions requiring screening it would be useful to those purposes. Those purposes required material, even if not screened, which had to come from somewhere. I deal later with the position in terms of the availability of arisings and capacity.[23]Alternatively, if the material were screened, there was an even greater need for it for that same purpose, with the stricter Environment Agency requirements involved in the consideration of future extraction sites. There was a continuing need for restoration, as new mineral sites were allocated and worked as discussed by the Inspector in paragraphs 15 and 18. Accordingly there was no error of law or inadequacy in reasoning but instead a legitimate planning conclusion as to the reality of the waste hierarchy and, in any event, as to what was BPEO for this waste. Ground 4[24]These considerations also link into ground 4. The claimant contends that the Inspector, in concluding that there was a continuing need for fill for landfill sites, relied upon statistics for void capacity of about 7 million cubic metres which the Waste Local Plan Inspector had criticised as unsoundly based. The claimant placed some weight here upon her criticisms of the statistical basis for the Waste Local Plan and in particular of the available capacity for landfill. The claimant submitted that the appeal Inspector had ignored her reservations about the void space.[25]True it is that she criticised the statistical accuracy of the Local Planning Authority calculations of void space and its relationship to the various waste streams which would fill it. But she also said, as the Inspector had recorded, that the parties appeared to be agreed that there was sufficient capacity to accept waste for the next five to six years, and longer for some waste streams.[26]The terms of her reservations in the body of her report are important:
"3.20 Similarly, 3.13 does not represent adequate statistics on the available void space for inert and construction/demolition waste. Having quoted a figure (6-7 million m³) 3.13 goes on to state hat this void space consists of inert only landfill, engineering works, amenity reclamation works, void space given over for restoration and engineering works on other non-hazardous landfill sites. It does not include all of the void space on mineral restoration works. (The implication is that it includes some). No guidance at all is given in Section 3 on the sources of such information, or on the distribution of the capacity across the County. It is not made clear how many mineral restoration sites are contributing to current capacity for the landfilling of inert and construction/demolition waste, or where they are. The simple quotation of a broad summary figure, with no contributory data and no sources, is unsatisfactory. 3.21 The perception of Objectors is that the Plan significantly overstates the capacity of void available to take landfilled waste during the Plan period. Even if justified, that perception should not lead automatically to the allocation of more sites for landfill void. If the Council is correct in its view that previously unspecified mineral sites will be capable of taking inert waste for restoration, there may not prove to be a capacity problem. Whether or not the Plan overstates available void capacity, however, the scale of any future capacity problem depends largely on the extent to which the assumptions of the Plan on future success in re-use and recycling are justified."
She recommended that the section on capacity be redrafted.[27]As I read those passages, the point is not that there is a shortage of capacity for the truly inert construction and demolition waste, but rather the extent of the capacity for unscreened construction and demolition waste was unknown and may be overstated. Her concern therefore was addressed to the possible need to provide more general construction and demolition waste capacity rather than capacity for inert waste properly so called. That that is her true concern can be seen from earlier passages set out above, which occur later in the report, which urged greater efforts to differentiate between inert construction and demolition waste and the rest, so that more inert waste could be available for restoration.[28]It follows from this that the Waste Local Plan Inspector's concern about the weaknesses of the statistics did not relate to the availability of sites for screened but rather to unscreened construction and demolition waste. In principle therefore, this does not help the claimant because his case concerned screened waste.[29]In any event, the Appeal Inspector was aware of those criticisms and refers to them in paragraph 14 of his decision letter. He has to grapple with their significance not knowing how the issue would resolve itself. It is clear from the Waste Local Plan Inspector's report that(a) there is capacity at least for 5 to 6 years (and more for some streams) and so there is no immediate shortage requiring capacity for any waste to be provided on proposed golf courses, and(b) in the state of unknowing, and even taking double the error figure suggested of 1 million cubic metres, there is still ample capacity for ten years.[30]There is nothing wrong in law with the Inspector approaching the uncertain implication of the statistics and their weaknesses, in the way in which he did. It was a reasonable approach leading to a reasonable allowance and on any view there was as yet plenty of void capacity for construction and demolition waste. If so, this is important on the Inspector's approach to the BPEO issue, because he had shown that there was a greater need for waste to be used in the restoration of mineral extraction sites and of landfill sites than for it to be placed on the proposed golf course.[31]The Inspector saw, as he was entitled to, that this was not simply an alternative to disposal in landfill, but was an alternative to disposal in a way which would bring about the restoration of mineral extraction sites or landfill sites to a beneficial purpose.[32]There is no error of law, no material consideration ignored, no failure to decide the BPEO with the relevant aims in mind and therefore, despite Mr White's able advocacy, this application is dismissed.[33]MS RAHMAN: My Lord, I do make an application for my costs. I have a statement of costs to hand up to you.[34]MR JUSTICE OUSELEY: Yes, thank you. Is it agreed?[35]MR WHITE: Yes.

MR JUSTICE OUSELEY: Just tell me how much is sought.

[37]MS RAHMAN: The total amount is £5,624, my Lord.[38]MR JUSTICE OUSELEY: And there is no dispute about the principle. There will be an order for costs in the defendant's favour in the sum of £5,624.[39]MR WHITE: My Lord, I wonder if I might also have 14 days from the date of the transcript to consider the appellant's notice?

MR JUSTICE OUSELEY: Yes.

[41]MR WHITE: Thank you.