England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Justice Sullivan)

		The Royal Courts of Justice Strand London WC2 Tuesday 30th July, 2002

1. LORD JUSTICE LAWS: This is an application for permission to appeal against the decision of Sullivan J, given in the Administrative Court on 27th March 2002, when he dismissed the applicants' application brought under section 287 of the Town and Country Planning Act 1990 for an order to quash in whole or in part the Essex and Southend waste local plan.
2. As the judge noted, the practical result sought to be achieved by the applicants was the deletion of Policy W7G which was concerned with proposals for the incineration of waste. One thing at least is very clear indeed from these papers: it is that incineration of waste was and remains an extremely contentious issue, not least in the area of the country with which we are concerned here.
3. In order to understand the nature of the challenge it is necessary to explain something of the history. The history of Policy W7G is quite long and not without its complexities. An inquiry was held into the draft deposit version of the local plan, I think over a period of some six weeks of sitting days, between 26th October 1999 and 5th January 2000. At that stage Policy W7G was numbered W7K. The inspector was to say in his report:

"It is probably true to say that the depth of concern expressed about incineration was greater than all the other objections to the Plan put together."

4. As presented to the inspector policy W7K was in this form:

"Incinerators without energy recovery will not be permitted. Incinerators with energy recovery may be permitted on the `major waste management sites' identified in this plan when detailed proposals are made provided that the WPA are satisfied that all the following criteria are met:

* Adequate measures to minimise environmental impact on the surrounding area, and to ensure compliance with statutory standards including those for emissions.

* access to the site complies with policy W4E, other relevant development plan policies and highway design standards.

* the structures are of a high standard of design.

* effective landscaping and screening is incorporated.

* means for the disposal of all residues are `identified'."

5. I should say that an issue before the inspector was whether Policy W7K should be deleted altogether and instead policy guidance on incineration should be incorporated into a different policy, namely W8A. As presented to the inspector Policy W8A was in this form:

"Major waste management facilities will be permitted on sites shown in schedule 1, subject to:

* There is a demonstrable need for the facility to provide for adequate management of waste arising in Essex and Southend.

* The full consideration of the acceptability of the type of development proposed when a detailed scheme is put forward, including environmental assessment where required; and.

* consideration of the environmental impact on the surrounding area; and.

* the policies and criteria of this plan and the development plan in general, in particular the considerations set out in policy W10F."

6. The inspector for his part concluded that incineration should not be ruled out as a matter of absolute principle, nor that W7K should be deleted and instead guidance incorporated into W8A. He gave reasons for those conclusions, and as I understand it his reasons are not as a matter of law sought to be criticised. At length he recommended, however, that W7K should be entirely reworded as follows:

"Proposals for incineration of waste will be permitted at the locations identified in schedule 1 (subject to compliance with the requirements of policy W8A) or at other locations (subject to the requirements of policy W8B), provided the following requirements are also met:

* incineration without energy recovery will not be permitted except in specialised cases;

* emissions to air and water from the process will not materially endanger human health or harm the environment. In deciding whether this requirement is met, the WPAs will assume that the necessary controls are exercised under Environmental Protection legislation and that the pollution control regime operates effectively, and will take into account whether the process proposed is the Best Practicable Environmental Option for the particular waste stream; and.

* provision is made for the recycling or other management of all residues, including the means of disposal to landfill where that is the BPEO [Best Practicable Environmental Option]."

7. The councils considered the inspector's report. In March 2001 they published a schedule of modifications. W7K was renumbered W7G. The opening paragraph of the policy was left the same except that the word "will" is substituted by the word "may". Then a further requirement is added as a third bullet point in the list of four which the inspector had recommended. Reasons were given in March 2001 for its introduction. It had apparently been agreed at a council meeting of 5th December 2000. It was in these terms:

"In considering the application of BPEO, there will be a presumption against incineration until the targets agreed for household waste recycling by the local authorities have been tested."

8. I should say that it was also proposed, as I understand it, to modify Policy W8A in line with recommendations made by the inspector. Moreover, it was proposed in addition to add a paragraph 1.10 to the explanatory text and that was in these terms:

"In April 1999 the WDA's and WCA's agreed to a statement of intent, entitled `Working Together', to aim for a minimum of 40% recycling/composting of household waste by the end of 2004, and seeking to achieve a minimum 60% by 2007. Progress will be reviewed and a detailed plan for dealing with the residual waste will be developed by the WDA/WCA's in October 2001."

9. Then a reason was given for this modification. That stated as follows:

"Reflect a desire by WCA's and WDA's to work together to reduce waste."

10. When the final modifications were put on deposit in March 2001 the incineration policy attracted over 15,000 objections. Many of them, but by no means all, made on a standard pro forma. There was a very large body of opinion which was absolutely opposed to any use of incineration as a means of dealing with waste. Regulations required the council to consider the objections and prepare a statement of their decision on the objections with reasons. A statement was prepared and considered at an Executive Board meeting on 26th June 2001. It included this:

"For all representations on Policy W7K (now W7G) the following response applies. The inspector's recommended policy for incineration was arrived at after hearing a considerable amount of evidence at the Inquiry. The Joint Waste Planning Authorities (Essex County Council and Southend Borough Council) have accepted that recommendation but have introduced a presumption against incineration until recycling targets have been tested."

11. That presumption of course refers to the new bullet point which I have already described. A report was prepared for the Executive Board by the Cabinet Member for Strategic Planning and Transportation. Under the heading "Incineration" this was stated:

"This is the topic which has raised the largest number of objections. Many are detailed with concerns about health, the effect on recycling, the preference for small local facilities, and the impact of large facilities. In short the objectors want the Plan to have a `no incineration' policy. The Inspector heard substantial evidence on this issue at the Inquiry where objectors were proposing such a policy. In his report the Inspector says ... that there must be a policy to guide a response to planning applications for incineration and that it would not be appropriate to express an automatic presumption against incineration.

Council in December modified this policy to indicate a presumption against incineration until targets for recycling had been tested, through the contract process. The reality is that no incineration proposal will be made without fulfilling the test of Essex/Southend waste only, which can only come from a successful tender. If the waste contract process secures long-term facilities for household waste without incineration then planning applications would seem most unlikely. However, there are no planning reasons for including a `no incineration' policy in the Waste Plan. Health and pollution are matters for the Environment Agency through the Site licensing statutory process.

Whilst this is an emotive and contentious issue the Plan should continue to be in the modified form recommended by the Inspector, as agreed by full Council last December, and no further amendment is proposed."

12. This was taken in by the Executive Board, who reported in substantially like terms to the meeting of the full council on 17th July 2001. The decision of the Executive Board had been called in by the Environment and Transport Select Committee on 5th July, and the Select Committee reported to the full council meeting.
13. On 17th July 2001 the full council had no fewer than three reports before it: one from the Executive Board; one from the Select Committee; and a minority dissenting report from the Select Committee. By a vote of 48 to 27 the council resolved as follows:

"(1) That the schedule of the Council's decisions on the objections to the Proposed Modifications as attached with this Agenda be endorsed.

2. That the Essex and Southend Waste Local Plan be adopted without any further modification (other than non-material factual up dating).

3. That a Notice of Intention to Adopt the Waste Plan be published (subject to the concurrence of Southend Borough Council).

4. That there will be no incineration of waste in Essex under the current Administration. Any change to this position is forced upon the Council a referendum will be held [sic].

(5) That a Panel of the Environment and Transport Select Committee be established to review all consultation procedures for statutory plans and to report to the Select Committee on improvements to the process, taking into account the issues raised by the call-in on the Essex and Southend Waste Plan."

14. It will be necessary to look back at some of the material before the council, but I can go now to the grounds of challenge as they are articulated in the grounds of appeal and very helpful skeleton argument prepared by Mr Banwell's predecessor. Mr Banwell has represented the applicants before us today.
15. It is first said that the resolution to adopt the plan was unlawful. This complaint relates to the fourth head of the council's resolution on 17th July. That is the one referring to no incineration of waste in Essex and referring further to a referendum. It is said that this infects the whole resolution. Mr Banwell, as I understood him, accepts that he has to show that it is arguable that but for this rogue insertion in the resolution, the council may have adopted a substantially different stance in deciding what the local plan should include by way of policies referring to incineration.
16. The learned judge below dealt with this in paragraph 66 of his judgment:

"66. The fourth resolution (referring to the possibility of a referendum) sits uneasily with the resolution to approve the Regulation 29 Statement and adopt the Local Plan without any further modification. But does it invalidate those resolutions? As I have sought to explain above, cogent planning reasons, with which the defendants agreed, had been advanced by the Local Plan Inspector for adopting the policies contained in the proposed modifications. In the light of those reasons, the further resolution might well be regarded as contradictory or even irrational, but it cannot invalidate the decision to adopt the plan for which (subject to ground 4 below) perfectly sensible reasons have been given. There is nothing in the minutes of the Council meeting of 17th July to suggest that the decision to approve the plan was contingent upon the decision to hold out the possibility of a referendum."

17. Mr Banwell says that the fourth head was an irrational point wrongly taken into consideration. It seems to me, however, that the judge was right. I consider it effectively to be beyond reality to suppose that but for this eccentric statement the council might have resolved differently. It is important to look at the way the whole matter was dealt with and the to and fro of debate and difference of opinion. A substantial position was arrived at by the council here by a considerable majority. I am afraid I do not accept that the insertion of this fourth point in the resolution can arguably be said to invalidate the decision to adopt the plan. As the judge said at the end of paragraph 66 (which I have set out), "There is nothing in the minutes of the Council meeting of 17th July to suggest that the decision to approve the plan was contingent upon the decision to hold out the possibility of a referendum."
18. The next point taken is that the council's decision was flawed by an inadequacy of reasons. It is said that there should have been separate reasons given as to why the objections raised to the amended Policy W7G were not to be accepted.
19. I am afraid I consider that this is an insubstantial head of complaint. The judge dealt with it in paragraphs 72 to 74 of his judgment:

"72. Regulation 29 requires the defendants to give their reasons for proposing the modifications. Those reasons must be intelligible and deal with the substantial points raised by objectors. But the level of detail required in any particular case will vary depending on the circumstances and, in particular, on whether the Council is accepting or rejecting a recommendation made by a Local Plan Inspector. In the latter case, more detailed reasons may be required; but even where the Council differs from an Inspector, little elaboration may be necessary if the matter is essentially one of planning judgment: see Welsh Development Agency v Carnathenshire County Council (1999) 80 P&CR 192, per Schiemann LJ at pages 199-201

73. As explained under ground (1) above, the additional requirements in Policy W7G made explicit a presumption that was already implicit in the need to comply with the requirements contained in Policy W8A. The resulting policy did not differ materially from the policy recommended by the Inspector. The Inspector having given adequate reasons for his recommendation, the defendants were entitled to do no more than say that they accepted the Inspector's recommended policy and, by necessary inference, that they accepted the Inspector's reasons for recommending that policy, which was arrived at after hearing a considerable amount of evidence at the Local Plan Inquiry.

74. The Joint Authorities' response mentioned that they had introduced a presumption against incineration until recycling targets had been tested (the additional requirement). Reference was also made in response to the objections to paragraph 1.10 to the "Working Together" initiative. No further explanation was required. It was clear why the Council were proposing to adopt Policy W7G in the form set out in the modifications. Of equal importance in considering whether the claimants have been substantially prejudiced by the lack of further reasons is the fact that it is perfectly clear why the Council has rejected their objections that the policy should prohibit the incineration of waste in Essex. That objection was rejected because the Inspector had recommended against such a policy and the Council agreed with the Inspector."

20. It is to be noted that the judge there at paragraph 73 was at pains to point out:

"the additional requirements in Policy W7G made explicit a presumption that was already implicit in the need to comply with the requirements contained in Policy W8A. The resulting policy did not differ materially from the policy recommended by the Inspector."

21. It is important to remember that while the duty to give reasons, here enshrined in subordinate legislation, is always and obviously important, its reach and extent have to be considered by a judicial review court in the context in which the reasons are given. Here I do not believe that anyone could have been in serious doubt as to why the policy was adopted in the form in which finally it was, nor any serious doubt as to the views essentially taken in relation to the objections to the amendment.
22. The next point is as to alleged material errors of fact considered by the Select Committee, and it is convenient just to notice how it is put in the skeleton argument at paragraph 6.1:

"The learned judge was wrong to consider that there were no errors of fact made before the Select Committee but only differences of interpretation [and reference is made to paragraph 67 of the judgment]."

23. The skeleton argument continues:

"(a) He [that is the judge] fails to record that counsel for the defendants conceded in oral argument that the planning officer (Gardner) had made a mistake, a point not covered in the written evidence. The officer had not told the committee that his quoted recycling targets were out of date, or that his figures were his own analysis and not the government's figures.

(b) Only some of the differences were matters of interpretation, over which it is capable for parties to disagree. It is not just a matter of planning judgment to present the Committee members with `Government targets' for incineration..

6.2 The learned judge was also wrong to conclude that the evidence did not show that these errors fed through from the Select Committee to the full Council ..."

24. In the course of his submissions before us seeking to support this point, Mr Banwell took us to a document (tab J in the bundle) which contains three boxes. The middle box is headed "The Waste Plan. Government targets, National Waste Strategy 2000 (June 2000)." There is a manuscript note added on the page saying:

"Geoff Gardner said `This is the way the government sees it'."

25. Mr Banwell put this part of the case in more than one way. There was a suggestion at one stage that there were not any government targets at all. At length he produced a document which he said -- and of course I at once accept -- was before the learned judge, although it is not in the bundle, a document I understand which emanates from central government. It has a paragraph number 2.35 headed "Recovery of municipal waste", and the text is as follows:

"In order to comply with the landfill Directive, the Government and the National Assembly have established the following targets for management of municipal waste:

• to recover value from 40% of municipal waste by 2005.

• to recover value from 45% of municipal waste by 2010.

• to recover value from 67% of municipal waste by 2015."

26. The box in the document to which I have referred has these very same figures under the first of three columns. The column is headed "recover value". Then those three year dates are given and the percentages which, as I have said, appear in the government document. The box has two other columns. The middle column is "recycle/compost", which has the percentages, 25%, 30% and 33% for each of the same three years. Lastly, the third column "incinerate" and that has 15%, 15% and 34% for each of the same three years.
27. At the end, as I understood him, Mr Banwell submitted, "Well, there is nothing in the government document as to incineration percentages" and that is certainly true. I am afraid I have concluded that there is simply no material before the court sufficient to get on its feet an argument to the effect that there was some material misunderstanding here which ought to attract judicial review.
28. The learned judge for his part dealt with it, as I have already said, at paragraph 67. I will not read the whole paragraph. He says this in the first three sentences:

"I can deal with the alleged material errors of fact quite shortly. First, the defendants do not accept that the newly elected members were given misleading information at the briefing. The differences are not due to error on the part of Mr Gardner, but to differences of interpretation."

29. Then the last sentence of the same paragraph in the judgment:

"Even on the assumption that there were some errors in the information given by officers to new members, there is no indication that those errors fed through in the report from the Select Committee to the full Council, or that they played any significant part in the deliberations at full Council."

30. In paragraph 6.2 of the skeleton argument, which I have set out, Mr Banwell takes issue with this last statement made by the judge. But even if that criticism is well-founded, it must hang on the earlier criticism that there was indeed a material error of fact capable of infecting the decision. I have seen and heard nothing to suggest that the judge's conclusion in relation to that might arguably be disturbed on appeal.
31. The fourth ground was put on the basis that there was material confusion among the councillors concerning the relevance of certain legal advice given to the council. The advice was as to whether or not the council were in effect obliged to have an incineration policy. We were shown in the course of Mr Banwell's submissions a document: as I understand it it is a minute, though it is somewhat garbled, of at any rate part of the material discussions taking place at council. There is a question from Councillor Webster:

"I understand that the council cannot adopt a plan which excludes incineration and that's an instruction from Government, now is that true?"

32. And then a person who is said to be the council's legal expert is recorded as replying:

"Any waste planning authority has the discretion as to what it includes, excludes from its plan, and as a matter of law that is the position."

33. The learned judge was to indicate (in paragraph 64 of his judgment) that the council's lawyer had given correct advice. But there is a later passage in the minute which it is suggested shows that Councillor Webster, for her part, and there were others also, had not correctly understood the position or remained confused. Councillor Webster is recorded as saying:

"Thank you chairman, because that in mind says that the fact we cannot exclude incineration from the plan."

34. In paragraph 64 of the judgment the judge took what I certainly accept was a robust and pragmatic approach. He said:

"The transcript of the meeting is not complete and indeed is in many respects unintelligible, but it is clear that "the Council's legal expert" gave the Councillors correct legal advice. The WPA had a discretion as to what it could include in, or exclude from, its Local Plan. The "legal expert" thought that Councillor Webster might be confusing this with the contractual position. It would be unlawful to refuse to entertain a tender because it included provision for incineration. That legal advice was impeccable. But it is clear from the remarks of Councillor Webster, and indeed from the terms of the minority report, that despite this advice confusion persisted in the minds of some councillors. The fact that some councillors were confused is not sufficient to invalidate the decision of the full Council. The amendment urged by the minority group in the minority report that there should be an attempt to reconcile "the counsel's opinions obtained by the WPA and the waste consortium" was defeated by 47 votes to 28. The Council comprises 78 members. In such a large body of members, it is inevitable that some will have a better understanding of the issues than others. Some contributions to the Council's deliberations will be well informed and highly relevant: others may be woefully misinformed and wholly irrelevant. In a challenge under section 287, the starting point must be the formal reports to, and resolutions of, the Council acting as a body corporate. In general, it will not be appropriate to refer to extrinsic evidence such as letters written, or radio interviews given, before or after the relevant meeting, in order to establish exactly what was understood by individual Council members. Unless it can be established that a majority of members must have proceeded upon a false premise, it will be of no consequence that confusion, however regrettable, may have persisted in the minds of some members."

35. For my part I agree with that reasoning. I have concluded that this head of complaint is in the result insubstantial.
36. Fifthly, it is said that the adopted wording of Policy W7G was deficient and unlawful. In his judgment the learned judge (at paragraph 40 and following) summarised this argument thus:

"He submitted that policy W7G is neither workable nor complete. Although the claimants had argued for a policy that `Proposals for the incineration of waste will not be permitted at any location in the plan area...', no criticism is made of the wording of the policy as recommended by the Local Plan Inspector. The claimants' criticism is directed at the additional requirement included in Policy W7G by the Council of its own volition:

`In considering the application of BPEO, there will be a presumption against incineration until the targets agreed for household waste recycling by the local authorities have been tested.'"

37. Then in paragraph 41:

"The Council had decided to include a limited presumption against incineration, but no agreed targets were set out in the Plan. Paragraph 1.10 (above) was included in the introduction to the Plan. `Targets' were referred to elsewhere in the Plan: see, for example, paragraph 2.15 and table 6.1, but they were national targets for waste reduction, reuse and recovery. Although paragraph 1.10 referred to the document `Working Together', agreed between the WDAs and WCAs in April 1999, that was merely a statement of intent which had already been amended from a commitment to achieve a maximum target of 40% recycling/composting of household waste by the end of 2004, with an agreement to `seek to achieve' such a target.

42. The Local Plan does not identify the local authorities in question, does not say how the targets will be tested and fails to state what use will be made of the end result. The Local Plan is relying upon non-statutory guidelines, when the obligation under the Act is to include all relevant policies in the Plan itself."

38. This argument has been refined for the purposes of the application before us so as to be in effect confined to the matters set out in paragraph 8 of the skeleton argument. I need only read paragraph 8.3, where what is asserted is as follows:

"The judge was wrong to consider that the targets in Working Together had been incorporated into the Plan ..."

39. That is a reference to paragraph 59 of the judgment.
40. The paragraph in the skeleton argument continues:

"This section of the Plan is merely a recital of the background to the Plan, and does not form part of the reasoned justification for the policies. Moreover, the defendant authorities themselves considered Working Together to be `a separate exercise to the Waste Plan' [and the skeleton argument gives the references for that]."

41. I do not think the judge can be convicted of making the mistake alleged. Paragraph 59 opens with these two sentences:

"Does it matter that the targets are contained in a non-statutory statement of intent? In my view it does not, since the targets are repeated in paragraph 1.10 of the Plan."

42. It is in my view impossible to conclude that in referring to paragraph 1.10 of the plan the judge had forgotten what he himself had very clearly set out in summarising the applicant's own argument in paragraphs 40 to 42 of the judgment, where it is plainly acknowledged that paragraph 1.10 is part of the introductory or explanatory statement. I do not think, for my part, that there is anything in ground five.
43. The last ground, save for a further argument relating to the costs, is to the effect that the councils failed to consider the objections made to the proposed modifications properly. There was here a defect, as the judge himself acknowledged. He dealt with the point at paragraph 68 to 71 of his judgment. The first sentence of paragraph 68 says:

"The defendants do not dispute that there was a failure to comply with the relevant requirements under the Regulation, but they contend that the interests of the claimants have not been substantially prejudiced by the failure to comply. I accept that submission."

44. The learned judge then goes on to explain the error in question, and this passage appears later in paragraph 68:

"If councillors had taken the trouble to check the numbers, they would have thought that there were over 14,600 objections to Policy W7G, whereas in truth there were over 15,100. The additional 546 objections are almost entirely pro forma objections. No new point of substance is raised. The Local Plan Inspector had considered the concerns expressed by numerous objectors about pollution and the risk to health."

45. The short point is that by reason of administrative failure 546 objections were missed and not considered. The judge took the view that this gave rise to no possible prejudice to the claimants. I agree. When one recalls the scale of objections here -- without the least disrespect to the authors of the 546 objections in question -- it cannot sensibly be denied that the decision-makers must have had well in mind the force and effectively the weight of the objections which this policy faced. If the 546 had represented a substantial proportion of the whole, that would have in my judgment been an entirely different and much stronger case. It seems to me there is really nothing here sufficient to engage the judicial review jurisdiction. I consider that the learned judge was right to decline relief on this ground as well as the others.
46. Last it is said that the judge's order that the applicants pay the whole of the councils' costs ought to be reviewed in this court because the judge accepted the point I have just dealt with, that there was an error in relation to the objections considered, accepted also -- and perhaps more substantially -- that the resolution referring to a referendum was irratic, indeed he uses the word "irrational".
47. But the fact is that the learned judge found against the applicants on all points in terms of their application for relief. It does not seem to me, for my part, that his order for costs arguably transgressed the bounds of his discretion, and as is elementary orders for costs are a paradigm discretionary area of judicial power.
48. I would, for all the reasons I have given, refuse this application.
49. LORD JUSTICE JONATHAN PARKER: I agree.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment)