Wiltshire Waste Alliance Ltd v Secretary of State for Communities And Local Government [2018] EWHC 1110 (Admin)

[2018] EWHC 1110 (Admin)Case No CO/3406/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10/05/2018
Before
SIR ROSS CRANSTON
Between
WILTSHIRE WASTE ALLIANCE LIMITEDClaimantSECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendant(1) HILLS WASTE SOLUTIONSInterested Parties(2) WILTSHIRE COUNCILInterested Party
Gregory Jones QC and Alexander Greaves (instructed by James Smith of Planning Law Services Ltd) for ClaimantCarine Patry (instructed by GLD) for DefendantGiles Cannock and Stephanie Hall (instructed by Paul Maile of Eversheds Sutherland) for First Interested PartyHearing Hearing date: 1-2 MAY 2018
JUDGMENTSir Ross Cranston:Introduction
[1]This is a claim under section 288 of the Town and Country Planning Act 1990 challenging a decision of a planning inspector appointed by the Secretary of State for Communities and Local Government. Wiltshire Council (“the Council”) had refused planning permission to Hills Waste Solutions Limited for a proposal to retain and extend the Lower Compton materials recycling facility, near Calne, in Wiltshire. The application site for the new facility is located within a larger site, the Lower Compton site, where the company conducts a variety of waste management activities.[2]The inspector allowed the company’s appeal and granted planning permission. Before him the company’s case was that if the appeal was dismissed the appeal site would continue to operate pursuant to a series of admittedly complicated planning permissions which, in any event, would allow a significant number of uses. The appeal was advanced on the basis of these “no project” baselines being in existence. No other grounds were advanced for the grant of planning permission. Essentially the claimant’s case against the appeal was that these baseline activities were not in fact permitted under the permissions operating. Further, for practical reasons what was permitted was limited and in any event could not take place.[3]The claimant brought this case in the Planning Court on 21 July 2017. Lang J granted permission on 14 September 2017 to proceed with six grounds of challenge to the inspector’s substantive decision, and a further ground of challenge to his associated costs decision. The Secretary of State conceded that ground 2 was made out in that the inspector was in error concerning the planning consents for two areas at the Lower Compton site, and that consequently the grant of planning permission should be quashed. The claimant had applied for summary judgment in respect of that ground. In its defence to the section 288 case, Hills Waste contested the claim in full, including ground 2.[4]The case was to be heard November last, but as a result of counsel’s illness it was adjourned. It has taken some time to find a convenient date for all parties. This is unfortunate since planning cases generally have an urgency about them. The Secretary of State appeared at the hearing before me but withdrew during the first day when the challenge to the associated costs decision was compromised. The Council has not been involved in the case and did not appear at the hearing. In the light of R (on the application of Shirley) v Secretary of State for Communities and Local Government [2017] EWHC 2306 (Admin); [2018] JPL 298 the claimant did not pursue ground 6 on air quality before me, but reserved the issue should the case go the Court of Appeal.

Background

[5]Prior to the inspector’s inquiry, the claimant had been an unincorporated body of local residents and parish councillors. It was incorporated shortly before this claim was brought. The interested party, Hills Waste Solutions Limited (“Hills Waste”), is a family-owned waste management company and a subsidiary of The Hills Group Limited, a well-established privately owned company. It owns and operates the facility and the Lower Compton site. Hills Waste has had a household waste collection contract within Wiltshire for a number of years. A new contract was to commence in August 2017 but has now been revised to commence in August 2018. It requires Hills Waste to be capable of collecting and sorting co-mingled recycling, in other words recycling which has not been pre-sorted by householders into glass, plastic, paper and so on.[6]The existing materials recycling facility was granted planning permission in 1997 under reference N962022. The permission stated that the proposed development was for environmental improvements “and the provision of a materials recycling facility”. Condition 4 to the permission was that the use should be discontinued on or before 31 December 2016 and the building removed and land restored. The floor area of the existing facility is some 1,980 square metres. The inspector records that it is a green-clad, pitched-roofed building, 41m wide and rising to around 8.5 metres at the eaves. Immediately north of it there is an open area devoted to composting and other types of materials handling, including skip waste.[7]The existing facility is situated within the Lower Compton site, which is of some 4.8 hectares located about one kilometre to the east of Calne. It is about the same distance north of the A4, which passes through Calne. The site is just north of the residential area of Lower Compton, where the site access road joins the public highway. Compton Bassett is about 1.6 kilometres to the north east. Within the eastern boundary of the application site is a grassed screen bund, beyond which is grazing land. Beyond that there is a C class rural road running along the western border of the North Wessex Downs Area of Outstanding Natural Beauty.[8]On the Lower Compton site, on lands extending north and west of the application site, is a household recycling centre and several mineral and waste landfill sites. For the purposes of the inspector’s inquiry the Lower Compton site was divided into different areas, representing to an extent their planning status. The planning status of the different areas was not straightforward, but with some effort the claimant was able to clarify important matters to the benefit of all sides.[9]There are three areas within the site with permanent planning permission. The first is a household recycling centre. Then there are two overlapping areas within, and to the north of, the facility which, at the inspector’s inquiry, were known as areas F and G. The inspector stated that the main controversy concerned the land use and planning status of these two areas. Area F is for the management of green waste, area G for commercial and industrial waste.[10]Area F is operated under two permissions, the original permission and a later variation pursuant to section 73 of the Town and Country Planning Act 1990 (“the 1990 Act”). The schedule to the original permission, under Ref N012802, stated as a condition that the development should be carried out in accordance with the details set out in the planning application. Annex 2 to the planning application estimated a maximum capacity for composting of green waste of 32,000 tonnes per annum (“tpa”). The subsequent section 73 permission, under Ref N/09/01498/WCM, varied the operating hours of the development.[11]Area G is also operated under an original permission with a subsequent variation. The permission under reference N033304 stated at paragraph 1:
“The Local Planning Authority HEREBY GRANT PLANNING PERMISSION subject to the scheduled conditions (if any) for the development proposed by the applicant in the application, which is hereby expressly incorporated herewith and of which brief details are, by way of identification only, set out in the Schedule (see overleaf).”
[12]The schedule to the permission contained brief details of the development:
“Relocation of existing Recycling and Recovery Facility and continued permitted use as a Composting Facility.”
There is no reference to the planning application in the conditions, but the application is stamped:
“Certified as a document incorporated into the decision made on 03 February 2004…”
In the part of the application form headed “Waste Related Development”, the first question at paragraph A2.7 asked:
“What materials in what quantities (tonnes per year) will be imported to the application site?”
The answer stated:
“Less than 25,000 tonnes per year of non-hazardous waste – inert, commercial and industrial wastes”
. The second question at paragraph A2.8 asked:
“What materials in what quantities (tonnes per year) will be recovered at the application site?”
The answer stated:
“Up to 80% of the waste imported will be recovered - 20,000 tonnes per year.”
Under reference N0607019, there was a section 73 permission to vary the operating hours.[13]There are larger areas, called D and E, to the north and west of areas F and G. Planning permission for area D, under reference N/09/01497/WCM, was for an extension to a sand quarry and for landfilling with waste. Conditions 2 and 4 stated that sand extraction should cease in May 2018, and the tipping and deposit of waste material and restoration operations should cease in May 2022. Condition 4 also stated that the working, restoration and aftercare of the site should be carried out only in accordance with specified drawings. Condition 21 required the approval of a landscaping scheme by the planning authority, to include arrangements for subsequent maintenance. Any tree or shrub which died within five years of being planted was to be replaced to the authority’s satisfaction. Condition 22 stated that on completion of the importation of landfill, “all machinery, plant, buildings, structures and any other site facility not essential for restoration/aftercare or for continuing landfill gas/leachate monitoring and control shall be removed or demolished and removed from the site”. Condition 23 provided:
“All internal haul roads shall be removed when no longer required or during the course of site restoration, whichever is the sooner.”
Condition 24 required that prior to the commencement of the development, an aftercare scheme had to be submitted to the authority, showing the steps to be taken to restore the physical characteristics of the land to a condition suitable for agriculture.[14]The specified drawing for the restoration for what appears to cover areas D and E of the Lower Compton site shows the contour lines of what is to take place after the landfill ceases. The land is intended for agriculture with some woodland. On the drawing is a road leading up to the application site and continuing alongside it and areas F and G.

The 2014 application

[15]On 13 October 2014 Hills Waste applied for permanent planning permission to retain and extend the facility, including transfer activities, screening bund and ancillary activities and development. Existing temporary consent expired on 31 December 2016. The company’s case was that the extended facility was necessary to perform the new contract with the Council to collect household waste, and sorting mixed recycling. The extended building would include areas for the receipt, bulking and transfer of residual and green waste, which currently takes place on land adjacent to the existing building. The new contract with the Council also requires use of vehicles which conform to EURO VI standards. The fleet has been commissioned, its cost being underwritten by the Council.[16]The proposed extension to the building would be northward and of the same type of design, construction and finish as that already there. With an additional 3,770sqm, it would cover a total area of some 5,760sqm. The proposed building would encompass some of the current outdoor operations and provide also for bulking of residual municipal and green wastes for onward transfer. The maximum proposed annual throughput was 119,000 tonnes per annum, comprising 44,000 tpa of kerbside-collected municipal solid waste, 35,000 tpa transfer of residual wastes and 40,000 tpa green waste transfer. The development would continue with the same access road for vehicles from the public highway at Lower Compton. The application was accompanied by an Environmental Statement.[17]As relevant baselines against which the significance of likely effects arising from the proposed development could be assessed, Hills Waste relied on the activities associated with the existing facility. The Council requested that these be excluded due to their temporary nature. Hills Waste then referred to a series of other extant consents which it contended gave rise to other various fall-back positions which could be relied upon to comprise the baseline.[18]On 17 June 2015 the Council refused the application, against the recommendation of its officers. The reasons given for refusal were that the development proposal was in conflict with Core Policy 55 (Air Quality) of the Wiltshire Core Strategy, Core Policy 60 (Sustainable Transport), Core Policy 61 (Transport and New Development) and Core Policy 65 (Movement of Goods) of the Wiltshire Core Strategy. Further, the Environmental Statement accompanying the planning application was said to be flawed in terms of the approach taken to the no-project baseline scenario and the transport and air quality’s assessment.[19]Hills Waste appealed under section 78 of the 1990 Act against the Council’s refusal to grant planning permission. An inspector was appointed. The Council decided not to defend its reasons for refusal. The claimant became the main party defending the Council’s reasons for refusal and opposing the appeal. Prior to the inquiry, the inspector toured the area of Lower Compton, Compton Basset and Calne, noting (he said later in his report) the general extent of landfill and other waste management operations on the site, as well as the highway route between Lower Compton and Calne.[20]On the opening day of the inquiry, 6 September 2016, the inspector stated that, in the confused state of the planning status of the application site and adjacent lands, he did not understand the baseline positions. He ruled that the Environmental Statement was not an adequate starting point. The hearing was adjourned to enable Hills Waste to remedy the Environmental Statement. The formal regulation 22 request under the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, now the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (“the EIA Regulations”) explained that the additional information was to assess the likelihood of significant environmental effects of the proposed development, in particular with respect to traffic flow, emissions and landscape visual impact. It was to provide a comparison with baseline scenarios which had not been taken into account in the Environmental Statement.[21]In November 2016 Hills Waste produced additional information. In his report the inspector explained that it comprised updates to Chapters 1, 2, 6, 7, 8 and the non-technical summary of the original Environmental Statement. It was subject to voluntary public consultation. The inspector also explained that prior to the resumption of the inquiry, the Secretary of State (through the Planning Inspectorate) had reviewed the Environmental Statement in the light of the public consultation and found that it was adequate to assess the several baseline scenarios on which the Hills Waste evidence was predicated.[22]The inquiry began on 21 February 2017 and sat on 21 to 24 and 28 February, and 2 March 2017. The claimant appeared, along with a number of other parties opposing the appeal. The Council attended but did not call witnesses. During the inquiry the inspector made an official site visit. He also made an unaccompanied visit to observe the Hills Waste’s waste management facility at Porte Marsh.

The inspector’s report

[23]On 12 June 2017 the inspector published his report. He allowed Hills Waste’s appeal and granted planning permission, subject to a number of conditions.[24]In his report, after describing the facility, the site and the proposed development, the inspector referred to the scope of the inquiry and the planning issues to be addressed. At DL26 he set out the main planning matters:(1) the principle of the permanent retention and extension of the facility in the light of adopted planning policy;(2) the planning fall-back positions assumed as baseline scenarios and the adequacy of the Environmental Statement;(3) the number of HGV movements likely to be generated by the proposed development, their effect on traffic flow, road safety, sustainable transport and air quality;(4) the effect the proposed development would have on the appearance and character of the surrounding area, including the nearby North Wessex Downs Area of Outstanding Natural Beauty;(5) other local concerns expressed at the inquiry and demonstrated at the formal site visit;(6) the planning need for the proposed development; and(7) on balance overall, whether the proposed development would comply with the development plan as a whole and whether any adverse impact due to the development would warrant dismissal of the appeal, having regard also to the national policy presumption in favour of sustainable development set down by the National Planning Policy Framework.[25]At DL27-38, the inspector outlined relevant planning law and policy. He then turned at DL40-49 to the first contested issue, the interpretation of the site allocation policy. After summarizing the rival contentions of the claimant and Hills Waste, he noted at DL44 the company’s concession that the presentation of the Wiltshire and Swindon Waste Site Allocations Local Plan was less than ideal and by itself did not provide the degree of certainty sought in national policy. However, the development plan was to be considered as a whole and the Wiltshire and Swindon Waste Site Allocations Local Plan needed to be read with the Wiltshire and Swindon Waste Core Strategy.[26]“Taking this approach”, he continued at DL44, “it is reasonable to interpret the meaning and intention of the allocation of the appeal site for strategic waste management to include a new or extended [materials recycling facility].” Accordingly, he added at DL45, the proposed development would be compliant with the Wiltshire and Swindon Waste Core Strategy and the Wiltshire and Swindon Waste Site Allocations Local Plan in terms of land use. It remained to be determined whether it would comply with other development plan policies with respect to its planning effects and overall whether it could be judged as being compliant with the development plan as a whole.[27]Paragraphs DL49-85 of the report were headed “Fall-back, Baseline Positions and Adequacy of the Environmental Statement”. DL49 began that it was crucial to the proper determination of the appeal that the effects of generated HGV traffic on the highway network and air quality were calculated “on a precautionary basis and compared with any planning fall-back position from which realistic baseline positions are drawn. It is established law that for a fall-back position to be taken into account it must be legally possible with respect to existing permitted land uses and also likely to occur on available evidence.”[28]Under the sub-heading “Planning Status and Permitted Uses”, the inspector noted at DL54 that, apart from the household recycling centre, areas F and G were the only parts of the entire waste management complex which were subject to permanent planning permissions. “The interpretation of the terms of the permissions and certain practical considerations for their future implementation potentially affect the degree to which the permitted operations should contribute to the baseline scenarios for the assessment of HGV generation.”[29]The inspector began with the interpretation of the permissions. Citing various decisions, including I’m Your Man v Secretary of State for the Environment [1998] 4 PLR 107 and R v Ashford Borough Council ex parte Shepway [1998] JPL 1073, the inspector said that it had been established by the courts that any limitation on a planning permission should be imposed by way of a planning condition, but that regard could be had to other documentation expressly incorporated or where there is ambiguity in the permission: DL58. Later in that paragraph, he added that development authorised by a permission “is both that which is described in the permission and any use which was not materially different from it”: DL58.[30]As regards area F, the inspector concluded, the permission:
“59…is subject to specific incorporation of the application documentation, which case law indicates should properly be construed as part of the description of the development permitted. This limits the total quantity of green waste to 32,000tpa for composting on site.”
[31]As to area G, the inspector concluded:
“60. The waste recycling, recovery and continued composting use of Area G was permitted under Ref N033304 and its hours of operation were also varied by a subsequent section 73 consent under Ref N/06/07019. Neither permission imposes any quantitative restriction on the development, either by specific condition or by express incorporation of application or other documentation, and neither contain any ambiguity in their terms. Accordingly, under established case law, there is no legal planning limitation upon the quantity or type of waste to be processed on Area G.”
[32]The next sub-section of the inspector’s report addressed “Baseline scenarios”. He began at DL63 with what Hills Waste had adopted as baseline scenarios with reference to existing planning permissions. Baseline 1 assumed composting 40,000 tpa of green waste on Area F; 75,000 tpa of commercial and industrial waste on Area G; and 130,000 tpa of landfill. Baseline 2 (the company’s preferred scenario since it corresponded to the intended uses within the proposed extended materials recycling facility) assumed 40,000 tpa of green waste composting and transfer on Area F; 40,000 tpa of commercial and industrial waste processing and 35,000 tpa of municipal solid waste processing on Area G; and 130,000 tpa of landfill. The inspector stated that baseline 3 was clearly a much higher generator of HGV traffic than either baselines 1 or 2 and could, in effect, be disregarded: DL65. Baselines 1 and 2 were broadly equivalent in terms of quantities of waste to be transported by HGV, including a total of 115,000 tpa on Areas F and G together: DL65. The inspector then said:
“67. Baselines 1 and 2 are further challenged by [the claimant] on grounds that the sites will be devoid of access and landlocked. However, there is nothing to prevent shared access via the existing access road which is preserved in the approved landfill restoration plan for maintenance purposes.”
[33]The sub-section on the baselines scenarios finished with the inspector’s conclusion at DL71 that the planning fallback position legally possible was appropriately represented by the chosen baselines 1, 2 and 3, with the exception that the amount of green waste permitted to be processed on Area F needed to be reduced from 40,000tpa to 32,000tpa.[34]Under the sub-heading “Practical Likelihood”, the inspector considered as relevant to the definition of the baseline scenarios for environmental assessment the effects of likely future activities of Hills Waste on and adjacent to the application site: DL73. It was reasonable to suppose, he continued in that paragraph, that Hills Waste, as a company with strong local connections and contractual commitments, would seek to continue to maximise the returns from its holdings at Lower Compton, whether or not the appeal was successful.[35]The inspector then referred to a statutory declaration of Mr Steven Burns, the company’s divisional director, as to its commercial intentions. The company declined to offer Mr Burns for cross-examination, and there was no witness summons to secure oral evidence on his part. Instead, the claimant made detailed written submissions as to the accuracy and veracity of Mr Burns’ evidence and submitted that, because there was no opportunity to cross-examine him, the inspector should attach less weight to it. Giving three examples, the claimant had also emphasized in its written closing submissions that the company’s intentions in the past were belied by its actions. Against that background, the inspector said this about the company’s evidence through Mr Burns: “74…it is not substantively challenged, other than with respect to the quantitative terms of the permissions discussed above, and is therefore to be regarded as robust”.[36]Notwithstanding the unresolved disagreement with the Council regarding the precise wastes allowed to be processed on Areas F and G, the inspector continued at DL75, the company’s evidence was that it would in practice continue with managing a total of 40,000 tpa of green waste on area F and 75,000 tpa of commercial and industrial waste and/or municipal solid waste on area G under the respective permanent permissions for those areas, “75…together with at least 130,000 tpa of landfill. That is compared with a stated potential landfill capacity of up to 300,000 tpa and [the company] assert that they would also seek to extend the life of the landfill sites in order to make use of the unused void space as a diminishing national resource.”[37]At DL76, the inspector stated his conclusion as to what could lawfully be processed via Area F, namely, no more than 32,000tpa of waste, a reduction of 8,000tpa below any of Baselines 1-3. He then added:
“77. Otherwise, the foregoing considerations add credibility to the practical likelihood of at least 130,00tpa of landfill continuing into the foreseeable future, together with a total of 107,000tpa of waste processing on Areas F and G, in the event of the failure of the present appeal. Moreover, there is potential for the importation of an additional 170,000tpa of landfill over the 130,000tpa that the baselines assume, vastly in excess of the required 8,000tpa reduction to comply with the Area F permission.”
[38]As a conclusion to the sub-section on practical likelihood, at DL79 the inspector concluded that “[t]hese factors lead to the reasonable and safe assumption that the assessment of increased HGV movements and their environmental effects against Baselines 1 and 2 will still result in a substantially conservative under-estimate".[39]“Adequacy of the Environmental Statement” was the next sub-section. The inspector began at DL80 with the claimant’s submission that it was inadequate because it did not assess the total cumulative environmental effects of the proposed development and associated waste uses on adjacent lands before comparing these with realistic baseline scenarios. On the basis of his earlier discussion of the fall-back and baseline positions, he noted at DL81 that the scenarios on which the Environmental Statement was founded would give rise to a conservative under-estimate of environmental effects.[40]Drawing to a close his discussion begun at DL49 on the baselines and adequacy of the Environmental Statement, the inspector said at DL84 that baselines 1 and 2, as identified by Hills Waste, provided an appropriate starting point for assessing the likely environmental effects of the proposed development, reflecting the legal and practical planning fall-back position, and that in relying upon those baselines the Environmental Statement was adequate with reference to the EIA Regulations.

Planning policy

[41]The Wiltshire and Swindon Waste Core Strategy Development Plan Document 2006-26 was adopted in July 2009. Policy WCS1 identifies the need for additional waste management capacity and self-sufficiency. Over the period to 2026 the issue of delivering sufficient sites to meet needs of municipal waste management strategies by providing and safeguarding a network of site allocations would be addressed. The framework of sites would manage the forecast increase in waste from the planned growth of Swindon, Chippenham, Trowbridge and Salisbury. Policy WCS2, Future waste site locations, states that strategic future waste site locations were to be located as close as practicable to these four centres.[42]Policy WCS3 is entitled Preferred locations…by type and the provision of flexibility, and sets out the types of waste management facilities the councils would seek to allocate over the period to 2016. One type of waste management facility for municipal waste is a material recovery facility. WCS3 contains a table with types of waste management facilities on the left and preferred locations on the right. In a box on the left side containing “materials recovery facilities” are seven other types of facility. Opposite “materials recovery facilities” on the right is “industrial land / employment allocations”, although just below the latter is “site allocations and current waste management facilities”.[43]Policy WCS4 deals with safeguarding waste management facilities. It states that attempts will be made to safeguard the following sites for waste management facilities:(a) preferred areas in the site allocations development plan document(b) existing waste facilities and(c) other sites where planning permission is granted.[44]The Wiltshire and Swindon Waste Site Allocations Local Plan was adopted in February 2013. It presents a framework of 35 strategic and local sites offering a range of potential waste uses to meet with flexibility the capacity requirements of Wiltshire and Swindon up to 2026. Paragraph 1.2 classes sites as either “strategic” or “local” and identifies site allocations to include site specific allocations or areas of search comprising land allocated for employment uses within which waste uses could be accommodated. Paragraph 1.3 explains that in recognition of the need to be flexible and responsive to change, the plan has identified sufficient sites for existing waste management facilities to grow (see also para. 1.28). Paragraph 1.4 notes that each allocation will be subject to the planning application process. Paragraph 1.17 states that strategic scale sites are generally considered to include, inter alia, materials recovery facilities. There is a map for “North Wiltshire strategic scale waste sites,” with Hills Resource Recovery Centre, Compton Bassett, Stanton St Quintin and Parkgate Farm and Park Grounds Farm identified.[45]Proposed sites are indicated on inset maps. Each has a “current use” for the site and a “potential use(s)”. Inset Map N3 is for an area entitled the “Hills Resource Recovery” and identifies its potential use as “Waste Treatment (excluding energy from waste)”. Current use is described as follows:
“The site is located within an operational waste management facility which includes non-hazardous landfill, landfill gas electricity generation, HRC [household recycling centre], composting operations, materials recovery facility and skip waste recycling operation.”
In the glossary “waste treatment” is defined as biological, chemical, or mechanical methods to remove pollutants from industrial or municipal wastes, change the character and composition of medical waste or reduce or eliminate its potential for harm to living beings and the environment. Current use at Stanton St Quintin is agricultural, potential use a materials recovery facility/waste transfer station, local recycling and waste treatment. At Park Grounds Farm current use includes a waste management facility, with landraise; potential uses include landfill and landraise extension.

Ground 1: Interpretation of allocations plan

[46]The claimant contended that the inspector was wrong in finding at DL44 that the application site was allocated under the development plan for strategic waste management to include a new or extended materials recycling facility. That was not simply an exercise on his part of planning judgement. His finding that there was an express allocation of the site for that use was wrong. Rather, the correct interpretation of Inset Map N3 of the Wiltshire and Swindon Waste Site Allocations Local Plan was that it allocated the application site for the potential use of “waste treatment (excluding energy from waste)” which, as defined in the glossary to the plan, did not include a materials recycling facility. Where the plan sought to allocate sites for multiple potential uses - use as a waste treatment facility and as a materials recovery facility as with Parkgate Farm and Stanton St Quintin - it expressly said so. Likewise, where it sought to allocate an extension of an existing use, as with Parkgate Farm, it again expressly said so.[47]In the claimant’s submission, reference by the inspector to Policy WCS3 to support his conclusion was erroneous: even if it was to be interpreted as identifying site allocations and current waste management facilities as preferred locations for materials recovery facilities and waste transfer stations, that identification as a preferred location did not amount to an actual allocation. As to the safeguarding Policy WCS4, that simply sought to prevent further inappropriate, non-waste uses, but did not allocate the site for any particular waste use. In any event, it could not be correct to interpret the term existing waste facilities to cover operations at the application site, when that was being conducted under a permission which was temporary and had already expired by the time the appeal was determined.[48]The policies the inspector was considering are expressed in broad, and not necessarily the clearest of terms. They do not require, nor lend themselves to, the same level of legal analysis as might be the case in other contexts: Secretary of State for Communities and Local Government v Hopkins Homes [2017] UKSC 37; [2017] 1 W.L.R. 1865, [24], per Lord Carnwath; Tesco Stores Ltd v Dundee City Council (ASDA Stores Ltd intervening) [2012] UKSC 13; [2012] PTSR 983, [19]. To my mind the starting point in interpreting the Wiltshire and Swindon Waste Site Allocations Local Plan is with the Wiltshire and Swindon Waste Core Strategy Development Plan Document 2006-26 since the plan is applying the allocation policies set out in the latter.[49]WCS3 of the core strategy would not win any prizes for design, but one interpretation is that it provides the preferred locations for materials recovery facilities in industrial land/employment allocations, site allocations and current waste management facilities. The term waste management facilities is not defined in the glossary, but its use in WCS3 makes clear that it is an umbrella term. The Lower Compton site falls within this description.[50]In any event, WCS4 provides that the planning authority will seek to safeguard as sites for waste management facilities “b. existing waste facilities”. There is no reason to interpret WCS4 narrowly as intending simply to safeguard against non-waste uses, although that is one aspect. Consequently, even if the application site does not fall within WCS3 – preferred areas in the site allocations development plan document - it is a site to be safeguarded within WSC4 for existing waste facilities, even if permission for the materials recovery facility part was due to expire in 2016.[51]As to the Wiltshire and Swindon Waste Site Allocations Local Plan, 2013, the application site is a site specific allocation within paragraph 1.2 of the document. As well, according to the map for North Wiltshire strategic scale waste sites, the “Hills Resource recovery centre” at the Lower Compton site is a strategic site. As to the insert maps, each accompanied by a table with a “current use” and a “potential use”, I accept Hill Waste’s submission that the sensible interpretation of these is that the current use is what the waste planning authority has implicitly found acceptable on that site, and that the potential use is a statement of what the plan concludes could still be additionally offered there. Thus on the Lower Compton site, since it is listed as a current use, a materials recovery facility has been found to be acceptable. Waste treatment (excluding energy from waste) is a future option - a potential use - for the site.[52]In other words, that potential use cannot be the only use contemplated for the site in the future. This is a strategic site and the various passages in the plan documents referred to earlier recognise the need to serve increasing waste needs in a flexible manner, with existing waste management facilities being able to grow. That a materials recovery facility is mentioned as a potential use in the tables accompanying other insert maps says nothing when that is a current use on the application site, but not with those other sites.[53]The presumption must be that this expert inspector properly understood the policy framework. In my view, he did not err in concluding that the proposed development would be compliant with the Wiltshire and Swindon Waste Core Strategy and Wiltshire and Swindon Waste Site Allocations Local Plan in terms of land use. The conclusion at DL44 - that a reasonable interpretation of the policies was an intention to allocate the application site for strategic waste management, including a new or extended materials recycling facility - has to be seen in the context of his discussion of the policies, albeit condensed. In my view there is no error in his conclusion.

Ground 2: Interpretation of planning consent for area G

[54]Paragraph 1 of the consent for area G stated that incorporated in it were the conditions contained in the application. The application was stamped in the manner described earlier, and stated that the quantities which would be imported to the application site were less than 25,000 tonnes of non-hazardous waste per annum. At DL58 the inspector recognised that regard had to be had to other documentation expressly incorporated or where there was ambiguity in the permission. In respect of area F, he found at DL59 that the earlier permission was subject to specific incorporation of the application documentation, which limited the total quantity of green waste to 32,000 tpa for composting on site. At DL60 he stated that there was no permission imposing any quantitative restriction on the development for area G, either by specific condition or by express incorporation of other documentation, and neither contained any ambiguity.[55]The Secretary of State accepted that the Inspector erred in his consideration of the relevant consents on Areas F and G and failed to give consideration to the questions posed as to the limits of those consents. He agreed that the decision should be quashed. At the hearing both the claimant and Hills Waste accepted that the application for the permission for area G, with its reference to less than 25,000 tonnes per year of non-hazardous waste coming onto the site, was incorporated by reference into the permission itself. Both also accepted that this was not a condition, so that bringing more than that quantity of non-hazardous waste onto the site was not prohibited.[56]However, the claimant’s case was that the inspector had to consider whether the levels of use relied upon by Hills Waste, an increase from 25,000 tpa to 75,000 tpa, resulted in a material change of use by intensification from what was permitted under the consents. The claimant referred to how Hickinbottom J in Cotswold Country Park Ltd v Secretary of State for Communities and Local Government [2014] EWHC 1138 (Admin), [2014] JPL 981 had referred back to the Secretary of State the question of whether there had been a material change of use when a limitation in the description of the development on the number of caravans on a site had been exceeded. In this case, the claimant submitted, it was inconceivable that the inspector had made a finding on material change without stating that he had, let alone explaining how he had reached that conclusion.[57]Hills Waste contended that what the inspector said at DL60 was correct, that there is no limitation in the consent. Although incorporated in the permission for area G, what was stated in the application could not constitute a prohibition. Cited in that regard was the line of authorities beginning with I’m Your Man v Secretary of State for the Environment (1999) 77 P&CR 251 and represented most recently by Lambeth LBC v Secretary of State for Communities and Local Government [2018] EWCA Civ 844. In Lambeth the Court of Appeal endorsed what Hickinbottom J had said in Cotswold Country Park Ltd, that simply because something is expressly permitted in a grant does not mean that everything else is prohibited: [15]. Hills Waste then submitted that the inspector recognized in the last sentence of DL58 the material change of use point when he said that development authorised by a permission is both that which is described there and any use which is not materially different from it. The inspector had then considered the baselines in detail and reached his overall conclusion in DL79. Consequently, properly interpreted, ground 2 was a reasons challenge not now open to it.[58]In my view, as the Secretary of State conceded, the inspector failed to give proper consideration to the limits of the existing consents. As regards DL60 and area G, the only way I can read the clause in the first sentence, “or by express incorporation of application or other documentation”, is that the inspector momentarily slipped in concluding that the application documents were not incorporated into the consent. However, I agree with what the Secretary of State said in his detailed grounds of defence, that it would have been perfectly possible for the inspector to construe the relevant planning permissions correctly and yet conclude that a baseline which included current uses was an appropriate method of assessment. When the issue of the area G consent is considered again, along with the consent for area F, the Secretary of State will also need to address the material change of use point, as relevant. Whether reconsideration will make any difference, in light of the inspector’s clear conclusion on practical likelihood at DL79, is for another day.

Ground 3: Interpretation of the landfill restoration plan

[59]Among the arguments the claimant advanced at the inquiry that Hills Waste’s fall-back position was unlikely is that areas F and G will lack road access. The words of condition 23 to the permission for area D, the large area to the north and west of areas F and G, was that all internal haul roads should be removed once it came to an end. Under the permission, sand extraction is to cease in May 2018, and the tipping and deposit of waste material and restoration operations in May 2022. The claimant submitted that maintenance requirements, such as the maintenance and replacement of trees or shrubs in accordance with the landscape scheme (condition 21) or leachate monitoring (condition 22) do not require access along roads designed for haulage lorries, by comparison with access over a rough track, which would not be uncommon for such activities and would plainly suffice.[60]Further, the claimant submitted, the inspector was wrong at DL67 to suggest that there is nothing to prevent shared access via the existing access road, which he said was preserved in the approved landfill restoration plan for maintenance purposes. In the claimant’s submission the post-settlement restoration plan could not be considered determinative of what would happen to the road, just as it was not determinative as to what would ultimately happen to the materials recycling facility, which is also shown on the restoration plan and which is currently required to be removed before the restoration of the landfill takes place. In any event, the claimant contended, the inspector did not give reasons explaining what it contended went to the heart of the fall-back position for areas F and G.[61]Fall back cases are fact specific and involve an exercise of broad planning judgment: Samuel Smith Old Brewery (Tadcaster) v Secretary of State for Communities [2009] EWCA Civ 333; [2009] J.P.L. 132 at [21]-[22], per Sullivan LJ. That was the inspector’s approach in this case. He took the realistic view that with permanent planning consent the Council would not insist upon the removal of an existing access road to these areas F and G and that access to other waste management activities on the Lower Compton site could share that access. As to condition 23, that applies to area D and refers to “internal” roads. To my mind it has nothing to do with roads external to that area, so does not include access to the application site and other waste management activities on the Lower Compton site.[62]The post-settlement restoration plan is not exactly clear on the point, but it shows a road. Under condition 21 dead trees and scrubs must be replaced, and under condition 22 facilities for restoration/aftercare and for continuing landfill gas/leachate monitoring and control may be retained. In the real world a road providing vehicle access for these purposes follows. Further, the area is destined for agriculture and it would be surprising if there was not to be vehicular access to it in the future. The reasons challenge is hopeless; lack of access to areas F and G was an unrealistic scenario. Unsurprisingly the inspector spent his time on what were the principal important controversial issues before him.

Ground 4: Hills Waste’s evidence

[63]The claimant contended that there was a failure to have regard to its legitimate concerns regarding Hills Waste’s evidence. At DL74, the inspector concluded that the statutory declaration of Mr Burns, Hills Waste’s divisional director, had not been substantively challenged, other than with respect to the quantitative terms of the permissions, and was therefore to be regarded as robust. The claimant submitted that this demonstrated a failure to have regard to a material consideration, since during the inquiry it had made sustained criticisms of the statement and the company had refused to call Mr Burns for cross-examination. If the Inspector had taken these factors into account, it added, he failed to provide reasons why he thought these factors were incapable of going to the weight of the evidence. The claimant’s case was that it had suffered substantial prejudice in the absence of reasons and an explanation as to why the inspector thought the company’s evidence was robust. That conclusion defied logic and was irrational.[64]As I read the inspector’s report, he was well aware that the claimant challenged Hills Waste’s view of the fall-back permissions, dealt with in Mr Burns’ statutory declaration, as well as other matters. However, he concluded that the former was the main area of contention. As he put it at DL74, the evidence was not otherwise substantively challenged. Earlier in the report, in the paragraphs on the baselines, he had discussed the differences and drawn conclusions about the fall-back permissions. With hindsight perhaps Mr Burns should have been encouraged to give evidence, although I note that the claimant did not suggest he should be summoned. Overall I have concluded that the inspector was entitled to come to the view that the criticisms which the claimant made of Hills Waste’s record were relatively unimportant and part of the forensic battle. In my view it cannot be said that the inspector failed to have regard to a material consideration.[65]Thus the inspector came to a conclusion about the weight of the evidence, that it was robust, which as the decision-maker he was entitled to do. The reasons given for this conclusion at DL74 are perhaps economical, but read in the context of the report as a whole, and given that this was not one of the main planning matters for the inspector’s consideration, they meet the requirements as summarised in the well-known speech of Lord Brown in South Bucks District Council and another v Porter (No 2) [2004] UKHL 33; [2004] 1 W.L.R. 1953, [36]. Rationality is a very high hurdle, and it is sufficient to say that the claimant does not surmount it.

Ground 5: adequacy of the Environment Statement

[66]Under the EIA Regulations, the Environmental Statement must set out a description of the aspects of the environment likely to be significantly affected by a development. In this context “likely” means a serious possibility but no more: R (on the application of Bateman) v South Cambridgeshire District Council [2011] EWCA Civ 157, [17]. In Re Mooreland and Owenvarragh Residents' Association's Application for Judicial Review [2014] NIQB 130 Horner J held that “no project” baselines (as in this case) must be assessed on the basis of likely significant effects: [81].[67]Since ground 2 was made out as described earlier, it has the potential to infect the conclusions regarding the baseline scenarios. In turn, since the Environmental Statement was dependent upon the baselines, as the inspector makes clear at DL84, this means that its assessment of likely significant effects arising from the proposed development is also affected. To that extent ground 5 is made out and the adequacy of the Environment Statement in this regard needs to be reconsidered.[68]However, under this ground the claimant identified what it contended was a further error, whether the fall-back position is lawful and therefore capable of comprising a material consideration in the first place: Gambone v Secretary of State for Communities and Local Government [2014] EWHC 952 (Admin), [25], per Dove J. The focus in this regard was on DL77, and the consequent assessment at DL79 of increased HGV movements and their environmental effects from the development against baselines 1 and 2.[69]The claimant submits that the inspector relied on irrelevant considerations in his analysis. Where he went wrong, the claimant submitted, was that at DL77 he had considered the potential for the importation of an additional 170,000 tpa of landfill over the 130,000 tpa that baselines 1 and 2 assumed. The 170,000 tpa uplift came from baseline 3, but Hills Waste had refrained from relying on that particular baseline. Further, if the potential for an additional 170,000tpa of landfill was sufficiently likely to be taken into account as part of the baselines, the claimant submitted, the inspector should also have taken this into account when assessing the impacts of the development going ahead. Since the landfill operations related to land outside the application site, and were not affected by the proposal, they should properly have been regarded as neutral in the assessment of the impacts of the development.[70]It is horn-book law that an overly forensic reading of decision letters is to be eschewed: Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314], [41]-[42], per Lindblom LJ. In my view a sympathetic and non-legalistic approach to the relevant paragraphs shows that the inspector’s reasoning was not infected with irrelevant considerations. One begins with the introductory paragraph to this section of the report, DL49, set out earlier in the judgment, where the inspector states that he will approach matters on a precautionary basis and with realistic baseline positions in mind. There is no challenge, nor could there be, to the statement of law in the second sentence of that paragraph.[71]One then turns to the sub-section in which DL75-79 occur, entitled “Practical likelihood”. At DL75 there is recognition of the potential landfill capacity of up to 300,000tpa and the implication that the company’s extending the life of its landfill sites would be seen as in the public interest. Building on DL75, the inspector is accepting at DL77 the practical likelihood of the baselines 1 and 2 – the credibility of 130,00 tpa of landfill continuing into the foreseeable future, coupled with a total of 107,000 tpa of waste processing on Areas F and G. (That 107,000 tpa figure took into account the figures for area F of 40,000 tpa of green waste, minus 8,000 tpa as a result of inspector’s conclusions regarding processing there, adding for area G, 75.000 tpa construction and industrial waste and/or municipal solid waste.)[72]The sentence in DL75 which is at the heart of the claimant’s objection, with its reference to an additional 170,000 tpa of landfill over the 130,000 tpa that the baselines assumed, begins “Moreover”. In other words, it is a separate point, and that point is explained in the remainder of the sentence, the potential for that additional landfill is vastly in excess of the required 8,000tpa reduction to comply with the area F permission. In other words, it is focused on a relatively small and peripheral point in the inspector’s analysis. There is no mention there of baseline 3. In my view, therefore, the inspector did not take into account an irrelevant consideration in his conclusion at DL79 (reiterated at DL81). The inspector’s very clear view there was that the fall-back position was both lawful and likely.

Conclusion

[73]The claimant succeeds on grounds 2 and 5, to the extent explained above.