Day v Brighton & Hove City Council East Sussex County Council [2006] EWHC 2928 (Admin)

Case No CO/3228/2006[2006] EWHC 2928 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 24 November 2006
Before
Mr Justice Collins
Between
Nicola Louise DAYClaimantBrighton & Hove City CouncilDefendantsEast Sussex County CouncilDefendant
Richard Harwood (instructed by EarthRights) for ClaimantTimothy Straker, Q.C. & Lisa Busch (instructed by the respective Legal Departments) for DefendantsHearing Hearing dates: 15 October 2006
Judgment
[1]The claimant lives in Newhaven. She seeks in this claim under s.287 of the Town and Country Planning Act 1990 to quash parts of the East Sussex and Brighton and Hove Waste Local Plan (WLP) which was adopted by the defendants on 21 February 2006. Her main concern has been that the WLP caters for incineration of waste generally and in particular at a site at North Quay, Newhaven, which is within half a mile of her home. She believes that the health risks associated with incineration will affect her and her family, especially since she suffers from hay fever and one of her children from eczema. However, I should make it clear that the matters raised in this claim are not limited to incineration and there are others which are said to show legal errors in the WLP as adopted.[2]Section 38 of the 1990 Act required the defendants as the authorities responsible for waste disposal in this area to prepare a WLP. The process started in 1996 with an informal consultation letter to 85 waste operators. Following the setting up of a joint committee and consideration of all relevant principles, a consultative draft WLP was published in December 1998. The issues which had been identified in the preparation of this WLP included the existing capacity for the safe deposit of waste to land, the availability of future landfill sites, the nature of waste management facilities required and the accommodation of new techniques. In the context of this claim, the important issues are the identification of sites, the targets for recycling and recovery and incineration.[3]In the consultative draft, 52 potentially suitable sites were identified. 13 of these were considered to be necessary in accordance with government requirements to achieve avoidance of landfill in favour of more sustainable methods of waste management such as waste recovery and recycling. In due course, following detailed examination of the responses to consultation based on a first deposit WLP of 1 November 2000 and a second deposit WLP of 5 April 2002, the proposed WLP went to consideration by an inspector at a Public Inquiry. Sittings took place over 48 days between 13 May 2003 and 24 October 2003. The inspector produced his report on 2 June 2004.[4]The WLP had identified 9 sites to be specified as locations for waste management facilities. Two of those were considered suitable for incineration, one of them being North Quay. The defendants had investigated the possibility of including a location for an incinerator (or, as the jargon had it, Energy from Waste (EfW)) within the Brighton and Hove conurbation, but none had been found.[5]The inquiry was necessary because of s.40(1) of the 1990 Act since many objections had been made to various aspects of the WLP. That is hardly surprising since waste disposal sites are rarely acceptable to everyone and there is a continuing concern that landfill must be reduced and incineration is unsatisfactory. Having received the inspector’s report, the defendants had to decide which of his recommendations to modify the WLP should be accepted. Of the 299 recommendations made by the inspector (many of which were relatively minor) the defendants accepted, in whole or in part, 231 and rejected 68. They then consulted on their proposals. That exercise resulted in submissions from 8429 objectors, many of which were in common form. The defendants had given reasons for their decision whether or not to accept each of the inspector’s recommendations. They decided not to accept any of the relevant objections with which this claim is concerned and to adopt the WLP. It was submitted to the Secretary of State, as the Act required (s.43) and, following a short time to consider it, the Secretary of State gave his approval on 17 February 2006. The WLP could not come into effect without that approval (s.45). It is to be noted that s.45 required the Secretary of State to consider the proposed WLP and any objections and enabled him to take any matters he considered relevant into account and to consult with any body or person he considered desirable (s.45(4)). Section 45(3) required him to consider any objections and to give any objector ‘an opportunity of appearing before and being heard by a person appointed by him’ unless ‘the objections have already been considered, or a local inquiry or other hearing into the objections has already been held, by the authority.’ Thus there was a built-in protection for objectors which was designed to ensure that an objection must be considered by an independent inspector if it had not already been considered by such an inspector. Section 45(5) applied s.287, which enables ‘a person aggrieved’ to apply to the High Court on the ground that:
“(a) it is not within the appropriate power, or (b) a procedural requirement has not been complied with.”
[6]The procedure to be adopted is detailed in the Town & Country Planning (Development Plan)(England) Regulations 1999 (SI 1999/3280), Part 5 of which applies to WLPs. Following a local inquiry, the authorities must prepare a statement of the decisions they have reached after considering the inspector’s report and give ‘the reasons for any of those decisions which do not follow a recommendation contained in the report’ (Regulation 27(1)). If objections are made to any decision, the authorities must consider whether any further local inquiry is needed pursuant to the power conferred by s.42(2) of the Act to hold an inquiry ‘for the purpose of considering any … objections to the proposals’ other than those already considered in the initial inquiry.[7]I have used the past tense in referring to the 1990 Act because it has now been superseded by the Planning and Compulsory Purchase Act 2004. This requires the defendants to prepare what is called a Minerals and Waste Development Strategy, including a Minerals and Waste Strategy by means of a Waste Development Framework Process (WDF). That exercise has by now taken the place of the WLP procedure. It was proposed by the defendants that the process would be completed by 2010. The 2004 Act in its transitional arrangements provides for a 3 year extension of the life of a WLP with the possibility of a further extension. It is now contemplated that a WDF will be adopted in 2011. Furthermore, by now an environmental assessment will probably be needed to comply with Regulation 6 of the Environmental Assessment of Plans and Programmes Regulations 2004 (SI 2004/1633). This is important since it is clear that the defendants will have within a relatively short time to consider the problem of waste disposal afresh and will in particular have to look at any proposed sites. Thus they will inevitably consider the inspector’s recommendations in the course of that process.[8]The claimant relies on five grounds. Four of them assert that the defendants’ rejection of specific recommendations made by the inspector was unlawful and the fifth alleges that they unlawfully failed to consider holding an inquiry into the objections raised to the rejection of those recommendations. The recommendations in question were for the addition of a number of sites to be considered appropriate for use for waste disposal, the expansion of the procedures to be undertaken on existing sites and the setting of recycling and recovery targets.[9]The Office of the Deputy Prime Minister has issued guidance under the heading Code of Practice Local Plans and Unitary Development Plans to enable local authorities to judge whether they should exercise their discretion to hold an inquiry into objections. Paragraphs 86 and 87 read:- “86. The authority has discretion whether to hold an inquiry into all or any of the objections made to its proposed modifications or to any decision not to accept an Inspector’s recommendation. An inquiry into objections to proposed modifications will not normally be necessary where the matters raised have already been considered at the initial inquiry, or where there are objections to the fact that modifications are not being proposed by an authority in response to an Inspector’s recommendations. 87. The Secretary of State advises authorities to hold an inquiry where objections raise matters which were not at issue in the earlier stage. This may arise, for example, if it is proposed to substitute an entirely different proposal for one which was in the plan as considered earlier (e.g. a site not included in the plan at revised deposit), so that the objections made to the proposed modification include new evidence (for example, from an objector who did not appear or make representations to the original inquiry). It may also arise if, on consideration of objections, the authority are disposed to withdraw, or significantly alter, a proposed modification. If the original modification was put forward to meet an objection, it may be inappropriate to withdraw it without giving the original objector an opportunity to consider and comment on new arguments put forward.”[10]I have been referred to a number of authorities which consider the exercise of a local authority’s discretion to hold an inquiry. The purpose of holding such an inquiry is to ensure that objectors are treated fairly and that any matter which has not been adequately dealt with in the previous inquiry can be ventilated. Relevant considerations will also be whether a further inquiry would in reality provide a material benefit and whether the delay and expense would be justified in all the circumstances. As the guidance makes clear and as must be obvious, it will be rare for refusals to accept an inspector’s recommendations and so to make modifications to require a subsequent inquiry. Usually in such cases the issues will have been fully considered in the previous inquiry and it will only be likely that there is indeed anything new to be considered in the circumstances referred to in the last sentence of Paragraph 87 of the Guidance.[11]In considering an application under s.287 of the 1990 Act, the court must ask itself whether on normal judicial review principles that apply to local authorities the decision not to open an inquiry was unlawful: see Doncaster MBC v Rossington Hall investments Ltd [2001] PLCR 242 at 254 (Paragraph 36) per Buxton, L.J. In that case, he also cited pertinent observations of Schiemann, L.J. in Warren v Uttlesford DC [1997] JPL 1130, where at p.1135 he said:- “1. One of the matters which a LPA has to consider when deciding whether or not to open an inquiry to consider objections to proposed modifications is whether a decision not to do so will be unfair to the counter-objectors. If it fails to consider the point or comes to a perverse conclusion then its decision is liable to be struck down. 2. For its part, the court in deciding whether or not the decision not to open a new inquiry was procedurally fair, needs to bear in mind the position not merely of the parties before the court but also all others who might be affected by an order of the court quashing the adopting of the plan. 3. The court in coming to a conclusion as to whether a decision not to open a new inquiry was procedurally unfair, must give weight to the LPA’s view of the general situation to quote the words of Lord Donaldson of Lymington M.R. in the Guinness case … the court will ‘give great weight to the Tribunal’s own view of what is fair, and will not lightly decide that a Tribunal has adopted a procedure which is unfair’, to quote the words of Lloyd L.J. from the same case.”[12]Mr Harwood pressed me with a decision of Richards J, Bersted PC v Arun DC [2004] JPL 1235. He submitted that in that case Richards J had decided that it was essential for the councillors who made the decision to have had their attention drawn to the considerations which were relevant to a decision whether or not to hold an inquiry. These had helpfully been set out by Mr Robin Purchas, Q.C., sitting as a deputy High Court judge in Drexfine Holdings Ltd v Cherwell DC [1998] JPL 361. These included considerations of fairness to objectors and others, the practical implications and whether it would produce a benefit and delay. But those considerations, although clearly material, do not constitute a check list which must be specifically referred to in an officer’s report. The circumstances of each case must be considered and the court must decide whether the reasons given for deciding whether or not to accept a recommendation coupled with any reasons for not causing a further inquiry to be held suffice to show that the decision was not unlawful.[13]Where a decision is taken not to accept recommendations and so the WLP remains, in its material parts, as it was, it will be rare for an inquiry to be appropriate. It is not required to enable old ground to be covered nor to give the objectors an opportunity to raise what they may regard as new arguments which could and should have been ventilated at the original inquiry. Furthermore, as the Rossington Hall case makes clear, if the council has properly addressed the recommendations and has lawfully concluded that no new issues have been raised by their decision, there will be no need for a further inquiry.[14]In his covering letter, the inspector summarised his main conclusions. I should set out Paragraphs 13 to 17, which read:- “13. I set out here a brief summary of my main conclusions. Far and away the dominant objections (in number and content) were those which sought a ban on incinerators being built in the Plan area, which in consequence objected to proposals to identify sites for energy from waste facilities, and which pressed for higher recycling and composting rates which, it was contended, would make incineration unnecessary. The question of incineration is dealt with in Part 36. I do not accept that incineration should be banned. Chiefly this is because I am not convinced that in practice there can be any guarantee that such high rates of recycling and composting will be achieved as to justify a policy of no thermal treatment. The more likely effect of such a policy would be continued reliance on landfill, including transporting waste large distances across the country if local sites cannot be found. I have enlarged on this in the report. Also I do not accept that incineration should be banned on health grounds. A more constructive approach is to set requirements which proposals for incinerators or alternative types of thermal treatment would be required to satisfy.14. At the same time, I have not supported the identifying of sites specifically for energy from waste facilities, nor (for, as explained in the report, I prefer to get away from the term EfW) for thermal treatment or incinerators. I take the view that only at the planning application stage can it be decided whether an incinerator would be part of the BPEO for the waste stream(s) it was proposed to manage. This leads to a recommended strategy of identifying preferred locations for waste management in general, albeit with an indication of the type(s) of facility that may be acceptable at each location; combined with criteria-based policies for each type of waste management which would be applied in determining whether a particular proposal was acceptable. While some may criticise this as adding uncertainty, I see it as a realistic response to a rapidly changing scene.15. Subject to this change, I have supported all the locations identified in the Plan for waste management, except for Mountfield for the reasons given in Part 23. I have also recommended additional locations which are considered to have potential for waste management, subject to further investigation (see Part 15), or for inert waste disposal (see part 25). These should make the Plan more robust by increasing the scope for providing an adequate network of installations and a wider range of facilities. 16. I have also, in response to objections, recommended some increases in the recycling and composting rates aimed at in policy WLP1 (see Parts 5 and 6). But no-one should be under any illusion that these will be easy to achieve. Indeed, if East Sussex and Brighton & Hove succeed in reaching these targets they are likely to be among the leading authorities in the country in this field. It is a challenge for everyone, including individual’s and businesses. 17. Another main set of issues surrounds landfill. In Parts 5, 25 and 37-38 I have expressed misgivings about the adequacy of non-inert landfill provision in the Plan area, and have recommended changes to policies WLP20 and 21 which support bringing forward suitable proposals which can meet the criteria set out. This is in addition to the Ashdown brickworks site in policy WLP10. The report explains the basis for these conclusions.”[15]In considering additional sites, the inspector accepted the concerns of some objectors that a wider range ought to be identified and that existing sites should, if suitable, be accorded greater capacity. He indicated that additional sites should be safeguarded from development proposals which would prevent or prejudice their use for waste management rather than allocated. He stated (Paragraph 15.15):- “It would be open to the Councils, instead, to add those sites to policy WLP8 [i.e. allocating them for specific use for waste management purposes] at the modifications stage. This would be consistent with the purpose of my recommendations but may cause them to consider that a further inquiry would be needed. To avoid this potential delay I have not formally recommend it.”[16]He suggested that the WLP should contain the following text:- “Additional locations have … been identified, following examination of sites put forward by objectors through the Local Plan inquiry process. Some of these were included in the Consultation Draft of the Plan, but none of them were in the two Deposit Drafts and they have not therefore been through the same process of public consultation and objection that the sites in policy WLP8 have … These locations are not given the status of formal allocation in the Plan, but they will be considered for inclusion at the first review of the Plan, and in the meantime they will be safeguarded …”[17]It is apparent that the Inspector recognised that the lack of public consultation and the fact that the sites were not formally drawn to the attention of those who might wish to object to them in advance of the inquiry meant that, if they were allocated, a further inquiry would almost certainly be required if any objections were raised to them. It follows too that he believed that if he did not recommend allocation, no inquiry would be needed and he recognised the importance of avoiding it. Both sides accept that he was in error in that safeguarding as he proposed would almost certainly result in the need for a further inquiry. It would blight any development of adjoining land and of the sites themselves. Further, extensions of waste management uses would have the same effect since, for example, there would be vociferous opposition to any further incineration.[18]The report to Cabinet of East Sussex on 24 November 2004 picked up this point. In paragraph 2.2, it was noted that any significant modifications which attracted new objections might generate grounds for a further inquiry, as might also the rejection of recommendations without good planning reasons. In paragraph 2.5, it was said that there should be a start on reconsidering the additional sites and the further recommendations of the inspector since the WLP could only be saved for three years. In Appendix 3 to the report (which is headed Consideration of Inspector’s Conclusions and Recommendations Regarding Allocation of Additional Waste Treatment Facilities) the distinction drawn by the inspector between safeguarding and formal allocation is considered. In paragraph 2.3 to 2.10 this is said:- “2.3 However it is difficult to see how such a distinction can be made. If a site is ‘safeguarded’ for waste uses in the Plan, then the Councils would be obliged to resist proposals for other forms of development on the basis that these proposals would preclude the ability of the site to be developed for waste uses. If planning permission were rejected on these grounds and the applicant were to appeal, the Councils’ position would not easily be defended, as the site would have been merely safeguarded pending a future investigation which may or, importantly, may not confirm the site’s potential for development for waste use. 2.4 Furthermore, the Inspector suggests that by modifying the Plan such that additional sites are safeguarded, rather than formally allocated, would avoid the delay that would be caused by a further inquiry required to consider objections to the allocation. 2.5 Again it is difficult to see how this would be the case. Any safeguarding of a particular site is as likely to draw objections from the local community, who may not wish to see waste facilities developed in their locality, as would a formal allocation. As the issues raised by such objections will not have been properly considered by the Inspector, the Councils will be obliged to hold a further inquiry to examine them or run the significant risk that the Plan would be called in for an Inquiry by the Secretary of State for not having properly considered these matters. 2.6 Such an inquiry would not only cause significant delay to the adoption of the Plan, but would also likely cause uncertainty for the local community faced with the possibility of a waste facility being developed in their midst. 2.7 It should be noted that approaches have already been made by Hastings Borough Council and Rother District Council who are concerned that safeguarding sites in this manner could preclude developments, other than waste uses, at certain locations identified by the Inspector which are in their jurisdiction. 2.8 In addition it should be noted that, even if the sites put forward by the Inspector were safeguarded they have not undergone a proper appraisal for the uses he suggests and there is no guarantee that these sites would therefore be suitable. Under the new Planning and Compulsory Purchase Act 2004, any new sites would need to undergo sustainability appraisal and strategic environmental assessment, it would therefore beneficial to review these sites during the development of the Waste Development Framework such that these additional requirements can be properly incorporated at that time. 2.9 While it is accepted that it could be beneficial to identify more sites in the Plan, it is considered that, for the factors outlined above, the Inspector’s recommendations to safeguard additional sites should be rejected. 2.10 Under the new Planning and Compulsory Purchase Act 2004 it will be necessary for the Councils to prepare a new style Waste Development Framework which will replace the Waste Local Plan. Preparation of this document will entail a review of the Plan’s strategy and it is proposed that consideration of the suitability of the additional sites put forward by the Inspector for inclusion in the Plan takes place at the same time.”[19]The defendants published a schedule detailing which recommendations were accepted and which rejected and giving the reasons for the decisions made. Thus in rejecting a recommendation to add a site, this is said (page 69 of the schedule: Rejection Reference R6/13):- “This recommendation flows from the inspector’s wider recommendation that waste uses at sites appropriately allocated in the Plan be widened out and the Plan’s allocation of sites should be dealt with in a single policy. These sites have not been assessed for the additional waste uses put forward by the inspector and there has not been consultation on such additional uses. It is considered therefore that it would be inappropriate to identify those sites in the Plan as being suitable for [the various sites of waste disposal facilities] at this stage. The review of the Plan to produce a Waste Development Framework will provide an opportunity to re-appraise and consult on any undeveloped identified sites with a view to broadening out the waste uses and incorporating any new technology, if this is subsequently considered appropriate.”[20]The Schedule also deals with the rejection of the inspector’s recommendation for an increase in the targets for recycling or composting. The recommendation was that the relevant policy should be amended to substitute these words:- “… by 2005, recycle or compost at least 25% of municipal waste and 40% of commercial and industrial wastes, and recover at least 40% of municipal waste and 55% of commercial and industrial wastes.” The reasons for rejecting this recommendation state:- “A 25% recycling and composting target for municipal waste in 2005 is below the statutory targets set by Government for East Sussex County Council and Brighton & Hove City Council. The Plan’s current recovery target for municipal waste in 2005 is 40%. The introduction of recycling and recovery targets for commercial and industrial waste in the Waste Local Plan may not necessarily lead to the direct provision of facilities as certain parts of this waste stream may not require intermediate facilities or may be more appropriately handled at a regional level. The lack of reliable data would mean that the targets could not be adequately monitored. New national and regional targets are to be resolved in the near future. It is therefore considered counter-productive to make changes to the Plan’s targets at this time, especially as policy WLP1 indicates they can be exceeded. Following adoption, of the Waste Local Plan the targets will be reviewed as part of the development of the Waste Development Framework document to be prepared under the new Planning and Compulsory Purchase Act 2004.” Similar reasons are given for rejecting the further recommendations for increasing percentages in other relevant policies. It is not necessary to set them out.[21]There followed a substantial number of objections to the rejection of the recommendations. Many of these were in standard form and it was asserted that a new inquiry should be held to allow the revised Plan to be examined in detail. The report of the Cabinet of 15 November 2005 stated, so far as material, as follows:- “1.5 … The Council’s proposed response does not identify the need for any formal modifications to the WLP. It is not therefore necessary to consider any further Public Inquiry .. 1.12 After consideration of objections to the Councils’ response to the Inspector’s report and Proposed Modifications to the Plan, it is not considered any new issues have been raised and, therefore, it is not proposed that further modifications be made to the Plan, or that a second Public Inquiry be held. The Plan, once adopted, will provide a robust policy framework which will aid the Council in making sound decisions on planning applications for waste management facilities. However, a WDF will need to be prepared following adoption of the WLP, to address issues raised by the WLP inspector and changes in national and regional policy. The Councils have already agreed to this course of action.”[22]There can be no doubt that the Councils did appreciate that they had to consider whether the objections to their decisions modifying the Plan in the light of the inspector’s recommendations required them to hold a second inquiry. It is clear that the inspector was anxious to avoid the delay which would result from such an inquiry and thought that safeguarding would achieve that. He was wrong. The decision not to hold a further inquiry was entirely consistent with his concern to avoid delay. Since the issues would in any event be considered in connection with the WDF, it is in my view apparent that to hold a further inquiry would be to incur unnecessary expense for no good purpose. The decision was consistent with government guidance. Mr Harwood complains that sites might as a result be lost if development inconsistent with their use for waste management was applied for in the meantime. That is hardly a substantial point since an inquiry would create delay and the same problem would arise. He further submits that no reference was made to the Drexfine considerations. In the circumstances of this case, there was no need to do so: indeed, I am far from persuaded that it is necessary in any case to refer to them specifically provided that the court can be satisfied that the authority in question has acted in accordance with the law and has had regard to the material considerations. It is necessary to look at all the circumstances of a particular case and the reasons given for refusing a second inquiry cannot be viewed in isolation. The reasons for rejecting the proposed modifications have to be taken into account. Overall, the decision was not only entirely justifiable but was in my view the only sensible course to adopt.[23]Ground 2 asserts that the decision to reject the inclusion of the higher targets was unlawful. In a response to the inspector’s questions regarding recovery targets dated 9 October 2003, the Councils accepted that a commercial and industrial waste recovery target of 67% by 2015/2016 could usefully be set in Policy in the Plan but – “it should be noted that data relating to commercial and industrial waste is not as reliable as that relating to municipal waste and, unless data collection methods improve, monitoring progress towards this target may be problematic.” Mr Harwood submits that the reasons for rejecting the inclusion of the higher targets show that the Councils were resiling from that acceptance for no good reason. But it is apparent that the response I have cited did not indicate that higher targets should be introduced, particularly as the relevant data was not considered to be reliable. In addition to those reasons I have already cited, this was said:- “There is an element of complication involved in calculating C & I waste arisings in the Plan area. The data used by the Councils with regard to C & I waste arisings is supplied by the Environment Agency, and is not currently up to date. The Agency has stated that a Strategic Waste management Assessment (SWMA), covering C & I arisings in the south east region, and the Plan is currently being prepared for probable publication in 2005. When this SWMA document is published there should be clearer information with which to predict future C & I arisings, and this plan for its management, and therefore in the meantime the Councils do not intend to change the Plan strategy regarding the management of C & I waste.”[24]In addition, the reasons made the point that the current targets in the Plan for household and municipal waste exceeded national targets. Including targets for C & I waste in the Plan would not necessarily lead to the direct provision of facilities as certain parts of that waste stream might not require intermediate facilities or might be more conveniently handled at local level. The lack of reliable data would mean that targets could not be adequately monitored.[25]There can in my judgment be no doubt that the reasons given were not only adequate but were not flawed by any failures which could amount to an error of law. The second ground accordingly fails.[26]The third ground relates to the decision to reject the inspector’s recommendations to widen the range of activities on allocated sites and to safeguard further sites and areas of search. I have already cited the reasons which in general were that such sites had not been put to consultation or properly assessed. That in itself is, as it seems to me, a proper ground for deciding not to include them in the Plan and the decision is the more sensible when it is recognised that acceptance of the modifications would lead to a further public Inquiry.[27]The specific matters relied on by Mr Harwood are put under four headings. First, he submits that the decision frustrated the policy of the 1990 Act by preventing objectors from having sites or activities added. It is far from clear that such a policy can be shown to exist in the Act. Those appearing at the original inquiry were able to point to other sites and activities and those would be considered in due course in connection with the WDF. The Act gave a discretion to the Councils to accept or reject the proposed modifications. Avoidance of further delay and a recognition that the extensions would be considered within a relatively short time justified the decision.[28]Secondly, it is submitted that the Councils displayed closed minds in refusing to consider the merits of adding new sites or activities. The short answer to this is that they had undertaken a substantial consultation exercise and had had regard to and had modified the draft plan because of objections. They were fully entitled for the reasons they gave to decide as they did. The submission made by the claimant is tantamount to an assertion that it would never be proper to refuse to include such a modification because there would otherwise be no point in an objector seeking to widen use or add sites. That is an impossible submission since it flies in the face of the discretion given to the councils and ignores the reality that such sites and wider ranges of activities will be considered in relation to the WDF.[29]The third submission asserts that the councils failed ‘to appreciate that the modification process provides for assessment (as the Council must consider the inspector’s report) and consultation (with the public) [on] these or other changes’. Mr Straker, Q.C. says in his skeleton argument ‘this ground … is not understood’. I sympathise. The Councils clearly did consider the inspector’s report in detail and did consult with the public. This submission adds nothing.[30]The fourth submission alleges a failure to appreciate that, since the minerals waste development scheme proposed that sites were not adopted within the WDF until 2010, there must be a delay which made it necessary to include such sites in the WLP. The Councils were of course aware of the proposed timings, but it was hardly an error of law to decide as they did. In any event, there would be considerable delay if a further inquiry were held.[31]The final complaint is that the Councils should have identified that the inspector’s recommendation to safeguard rather than allocate was itself wrong in law. There was no challenge to the inspector’s decision. In any event, the Councils did not implement the recommendations. Thus their lawfulness or otherwise was immaterial. This complaint adds nothing.[32]I am conscious that I have not dealt in detail with all the arguments deployed by Mr Harwood in support of his third ground. It is not in my judgment necessary to lengthen this judgment by doing so since they fail because the defendants were entitled to reject the recommendations on the ground that there had been no proper evaluation of or consultation about them and to include them would inevitably result in a further inquiry and delay. The detailed arguments cannot overcome those fundamental points. It follows that the third ground is without substance.[33]That leaves an attack on the decision to reject the inspector’s recommendations in relation to two specific sites. The first is Sackville Road coal yard in Hove. The inspector deals with this in paragraphs 14.8 to 14.21 of his report. He refers to Policy TR14 of the second deposit draft Brighton & Hove Local Plan (BHLP). This is now Policy TR16 of the adopted plan which is in identical terms. It provides:- “Planning permission will only be granted for developments that will not affect the use of the railway sidings and coal depot adjacent to Hove station, together with the road and rail access to them, because they have been identified as a potential site for transfer of waste …. the rail system. The site will be protected from built development until it has been appraised during the plan period, to determine whether it could form a site for rail-freight or rail to road transfer.” The inspector considered and rejected the objections which involved an attack on the use of the site for any form of waste management. He recognised that the potential to connect the site to the rail network made it an important part of the WLP strategy, albeit at present the owners did not choose to make it available for such use. In Paragraph 14.20, the inspector concluded:- “… this site ought to be retained in the Plan, but pursuant to my general conclusions above it would be included in the list under Policy WLP8. Suitable uses in addition to road to rail transfer might include recycling, composting or anaerobic digestion, but this would be subject to compliance with other policies of the Plan.”[34]The defendants’ reasons for rejecting the inspector’s recommendation were:- “The proposed change contradicts the BHLP where [the] site is identified solely for freight transfer, including waste freight. The erection of buildings or plant on the site could prejudice its role in freight handling. Any other built development apart from freight transfer is expressly excluded in policy [TR16 …]. The suitability of the site for other waste uses has not been properly assessed and until such an assessment is complete it would be premature to allocate the site specifically for those uses.” There are thus two reasons. The first is based on the conflict with the BHLP and the second on the general concern of lack of assessment and consultation. The latter is more apparent in this case because the objections related to the use for any sort of waste management and no-one had suggested the possibility of widening the uses. In a statement lodged on behalf of the Brighton & Hove Council, Ms Thomas says in paragraph 12:- “The inspector referred cautiously to alternative uses in Paragraph 14.2 of his report stating that “if facilities for recovering waste for recycling or composting could be accommodated …” (…my emphasis). However, because there had been no objector seeking to widen out uses, there was no evidence before him from the Council as to whether a range of uses could be accommodated on the site.” In the same paragraph (14.2), the inspector had noted that, although such facilities might not turn out to be environmentally acceptable, he saw ‘no reason to exclude this option at the Plan stage’. Ms Thomas also referred to the absence of any other suitable potential rail link which, she said, made it necessary to maintain the separate listing of the site. This accorded with government policy as set out in PPG13.[35]Mr Harwood submits that the defendants could not answer the inspector’s recommendation by relying on the BHLP since the inspector had taken it into account. The defendants were entitled to disagree with the inspector and to regard the conflict as a real obstacle, particularly as the inspector’s approach was driven by his general concern that wider possible uses should be considered for all sites whether or not there had been prior consultation or assessment. Mr Harwood further submits that the reference to Ms Thomas to PPG13 is to add a reason which was not given by the defendants in rejecting the inspector’s recommendation. The explanatory text to Policy TR16 refers to PPG13 and so, in relying on it, the defendants must be taken to have had regard to that guidance as well. In any event, the concerns had been part of the Council’s case before the inspector.[36]In the circumstances, there was nothing unlawful in the rejection of the recommendation. I am bound to say that it is somewhat curious that the claimant should seek to quash this particular decision on the ground that the Plan should have included the possibility of more extensive waste management uses when all the objections were to any waste management uses at the site.[37]The final ground relates to North Quay in Newhaven. In addition to his general concern that the sites included in the Plan should have the potential for wider uses, the inspector gave, it is said, an additional reason specifically for North Quay which related to his view that the acceptability of incineration proposals could only be determined in a planning application and so sites should not be allocated specifically for incineration.[38]It is necessary to consider the relevant paragraphs of the inspector’s report to put his conclusions in context. As he noted, by far the biggest concern raised by local people (including the claimant) was over the risk of harmful emissions if an incinerator were to be built. He had considered the general objections to incineration in some detail in part 36 of his report and had concluded that the general policy in the Plan which dealt with the possibility of incineration was acceptable. The relevant policy (WLP19) made it clear that incineration would only be allowed if a need was demonstrated which could not practicably be met by waste management proposals higher up the waste hierarchy and subject to an assessment of the environmental and health impacts which demonstrated that the process would not materially endanger human health or harm the environment.[39]In Paragraphs 22.12 and 22.13, the inspector discusses the question of the range of uses which might be permitted at the site. These read:- 22.12 The principal concern of most objectors is that policy WLP9 proposes use of the site for energy from waste (with material recovery facilities), which is assumed to mean an incinerator. Confirmation of that is inferred from the Council’s BPEO analysis which identifies as part of the preferred option incinerators at 1 or 2 locations (core proof WPA1 table 1), and the waste disposal contract , which envisages a mass burn incinerator of 225,000 tonnes a year capacity at Newhaven (CD13.16 appendix E). The Council’s defence of this proposal at the inquiry also focussed mainly on the impact of an incinerator, while making the point that policy WLP9 would admit other forms of thermal treatment (such as gasification or pyrolysis) or anaerobic digestion. Many objectors say that they would not object, or object less, to a small-scale waste management facility serving the local area. However the scale of the proposal is another source of objection, as paragraph 6.26 of the Plan says that it would serve the western part of the Plan area, i.e. including Brighton & Hove. It is felt to be wrong that Brighton & Hove cannot manage their own waste, and contrary to the proximity principle. 22.13 many of these issues are partly dealt with in other Parts of this report. In Part 36 I examine the general objections to incineration, and conclude that the Plan should not reject it or other forms of thermal treatment on principle, but should set strict criteria which any planning application would have to satisfy. My reasons for these conclusions are explained in Part 36 and this part of the report should be read in conjunction with them. The question therefore is whether there is an overriding site specific objection to thermal treatment being included in the waste management options for Newhaven, and I address this in the other issues examined below. As to the other options, the Plan already allows for anaerobic digestion (which the Councils include under the heading of EfW and materials recovery/recycling facilities. On this basis I would see no objection in principle to mechanical-biological treatment, recycling or composting facilities; indeed these would be preferable in terms of the waste hierarchy provided they could address the strategic waste management need.)”[40]The relevant Policy which deals with North Quay is WLP9. This reads, under the heading ‘Site-specific Allocations for Energy from Waste and Material Recovery Facilities’:
“Proposals for energy from waste with material recovery facilities will be supported on suitable land within the following area of search as shown on the proposals map and accompanying insert plan … North Quay, Newhaven …”
As will be apparent, there is a slight mismatch between the heading which was the word ‘and’ instead of ‘was’ and the body of the policy which uses the word ‘with’. But it is clear that energy from waste, namely incineration, is not the only possible form of management envisaged. North Quay, Newhaven …”[41]The relevant paragraphs in which the inspector sets out his conclusions are 22.40 and 22.45. These read:- 22.40 By far the biggest concern raised by local people is over the risk of harmful emissions if an incinerator were built. I refer to the detailed analysis of this issue in Part 36. For the reasons set out there, I conclude that whether an incinerator was acceptable or not would depend on a detailed study of an actual proposal in the light of the standards and controls applying at the time. I do not consider that the option should be ruled out as a matter of principle at this stage. However because of this uncertainty, I also conclude that sites should not be allocated in the Plan specifically for incinerators. That is an other reason for extending the range of facilities that might be acceptable at North Quay, to allow for alternative means of achieving the Plan’s waste strategy in accordance with policy WLP1. 22.45 I have explained that I do not accept the Plan’s approach of allocating this location just for EfW and materials recovery. However my conclusion from the above examination of the main issues is that the North Quay site is in principle a suitable location for a wide range of waste management facilities and that there is no overriding case for excluding thermal treatment. The actual type(s) and capacity of facilities would be determined at the application stage in the light of the policies of the Plan and an analysis of the BPEO. This gives the flexibility that I regard as essential to allow for the latest thinking and techniques for waste management, and take account of the availability of alternative locations. What the Plan must do is to be clear about the range of waste management uses that may be considered, and the requirements that any proposal would have to satisfy before permission could be given.”[42]The reasons given for rejecting the recommendation were:- “This recommendation flows from the inspector’s wider recommendation that waste uses at sites appropriately allocated in the Plan be widened out and the Plan’s allocation of sites should be dealt with in a single policy. These sites have not been assessed for the additional waste uses put forward by the inspector and there has not been consultation on such additional uses. It is considered therefore that it would be inappropriate to identify these sites in the Plan as being suitable for mechanical-biological treatment, anaerobic digestion, waste reprocessing or additional thermal treatment facilities at this stage. The review of the Plan to produce a WDF will provide an opportunity to re-appraise and consult on any undeveloped identified sites with a view to broadening out the waste uses and incorporating any new technology, if this is subsequently considered appropriate.”[43]Mr Harwood submits that the reasons show that the defendants failed to take into account the inspector’s view that the acceptability of incinerator proposals would only be determined at the planning stage and that therefore sites should not be allocated specifically for incinerators. Paragraph 22.40 shows clearly that the inspector’s view was general and was not site specific. Thus it was correct for the defendants to rely on the lack of assessment and consultation. In any event, the specific reference to incineration did not rule out the possibility of other waste management facilities if an application were to be made for such a facility. And incineration would only be permitted if it was not harmful to health or to the environment. There was a good reason for identifying sites which were said to be suitable for incineration since it had not been possible to find any within the Brighton & Hove conurbation and, as the deletion of the only other possible site identified in the draft WLP showed, it would be difficult to identify any sites. Thus I reject Mr Harwood’s submissions under Ground 5.[44]I would only add that it was open to the Secretary of State to refuse to give his approval to the adoption of the WLP. While I recognise that his approval cannot mean that no error of law would exist, it is a matter which can be taken into consideration. But it is unnecessary to rely on it in any way since, for the reasons I have given, I am satisfied that this claim must fail.