England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT SITTING IN BIRMINGHAM

		Royal Courts of Justice Strand, London, WC2A 2LL
		05/07/2011

Mrs Justice Nicola Davies:

1. This is an appeal pursuant to section 288 of the Town and Country Planning Act 1990 (as amended) ("the Act") to quash the decision of the First Defendant, contained in a decision letter dated 16 November 2010, by his appointed Inspector. The First Defendant is represented and has taken part in the appeal. The Second Defendant is not represented and has taken no part.
2. By that decision the Inspector dismissed the Claimant's appeal and refused planning permission for "a waste treatment facility comprising reception and recycling hall, a Mechanical Biological Treatment facility, an Advanced Conversion Technology facility, a power generation and export facility, education and office accommodation, landscaping and access" at a site comprising disused land adjacent to 1-5 Railway Cottages, Sinfin Lane, Sinfin, Derby.
3. On 5 January 2010, the application was refused by the Second Defendant. The Claimant appealed against the Second Defendant's refusal to the First Defendant pursuant to section 78 of the Act. A 12 day inquiry was held in September and October 2010, which included an accompanied site visit.
4. The Inspector's approach, as detailed in the decision letter, was to consider three main issues and thereafter to balance the points in favour and against the proposal. She concluded that :

"I have decided that the points in favour of the proposed WTF do not outweigh the points against it. This is largely because of the substantial weight that I have given to the likely increase in traffic congestion, the substantial weight I have given to the adverse effect on the AQMA, and the substantial weight that I have given to the adverse effect on the living conditions of local residents."

Legal Framework

5. Section 288 of the 1990 Act provides that a decision may be challenged on the grounds that:

a) The action is not within the powers of the Act;

b) Any of the relevant requirements have not been complied with in relation to that action and the applicant has been substantially prejudiced by that non-compliance.

6. In Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320, Lord Denning MR at 1326 stated:

"Under this section it seems to me that the court can interfere with the Minister's decision if he has acted on no evidence; or if he has come to a conclusion to which on the evidence he could not reasonably come; or if he has given a wrong interpretation to the words of the statute; or if he has taken into consideration matters which he ought not to have taken into account, or vice versa. It is identical to the position when the Court has power to interfere with the decision of a lower tribunal which has erred in point of law."

7. The limited nature of review of planning challenges has been emphasized: in Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 (HL) at 780 Lord Hoffman stated:

"If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State."

8. It is acknowledged that the planning inspector is best placed to resolve matters of planning judgment and that the court should be astute to detect challenges which are in substance complaints about the way in which the planning balance has been struck. In R (on the application of Newsmith Stainless Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74, Sullivan J (as he then was) stated:

"An application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision. An allegation that an Inspector's conclusion on the planning merits is Wednesbury perverse is, in principle, within the scope of a challenge under section 288, but the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits."

9. The role of the High Court was explained by Hoffman LJ (as he then was) in South Somerset DC v Secretary of State for the Environment (1993) 66 P & CR 83 at 88-9:

"In my judgment, therefore, an analysis of the decision letter does not show that the inspector overlooked a relevant policy or misunderstand one in any material respect. His decision was entirely based on what he perceived to be the planning merits. The deputy judge, who has immense experience of town and country planning, may have found the decision surprising. He may well have been right. The appellants may have struck it lucky. But the judge was not entitled to substitute his own views on planning matters for the inspector's…."

10. South Somerset also contains guidance as to how decision letters should be read, namely as a whole and in the context of the way in which the arguments have been canvassed. In particular at 85 Hoffman LJ stated:

"The inspector is not writing an examination paper on current and draft development plans. The letter must be read in good faith and references to policies must be taken in the context of the general thrust of the inspector's reasoning. A reference to a policy does not necessarily mean that it played a significant part in the reasoning: it may have been mentioned only because it was urged on the inspector by one of the representatives of the parties and he wanted to make it clear that he had not overlooked it. Sometimes his statement of the policy may be elliptical but this does not necessarily show misunderstanding. One must look at what the inspector thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood a relevant policy or proposed alteration to policy."

11. The approach to the duty to give reasons in the planning context is summarized in South Buckinghamshire DC v Porter (No. 2) [2004] 1 WLR 1953. Lord Brown at 1964:

"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."

12. A decision maker exercising powers under the 1990 Act is to have regard to the development plan; section 70 (2):

"In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations."

This is now a statutory duty pursuant to section 38(6) of the Planning and Compulsory Purchase Act 2004, namely:

"If regard is to be had to the development plan for the purposes of any determination to be made under the Planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."

13. In City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447 Lord Clyde explained the approach, the origin and effect of the Scottish equivalent of section 54A (later section 38(6) of the 2004 Act) at 1458:

"Section 18A was introduced into the Act of 1972 by section 58 of the Planning and Compensation Act 1991. A corresponding provision was introduced into the English legislation by section 26 of the Act in 1991, in the form of a new section 54A to the Town and Country Planning Act 1990. The provisions of section 18A, and of the equivalent section 54A of the English Act, were as follows:

'Status of development plans

Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise.'

Section 18A has introduced a priority to be given to the development plan in the determination of planning matters. It applies where regard has to be had to the development plan …

By virtue of section 18A the development plan is no longer simply one of the material considerations. Its provisions, provided that they are relevant to the particular application, are to govern the decision unless there are material considerations which indicate that in the particular case the provisions of the plan should not be followed. If it is thought to be useful to talk of presumptions in this field, it can be said that there is now a presumption that the development plan is to govern the decision on an application for planning permission. … By virtue of section 18A if the application accords with the development plan and there are no material considerations indicating that it should be refused, permission should be granted.… There remains a valuable element of flexibility. If there are material considerations indicting that it should not be followed then a decision contrary to its provisions can properly be given.

Moreover the section has not touched the well-established distinction in principle between those matters which are properly within the jurisdiction of the decision-maker and those matters in which the court can properly intervene. It has introduced a requirement with which the decision-maker must comply, namely the recognition of the priority to be given to the development plan. It has thus introduced a potential ground on which the decision-maker could be faulted were he to fail to give effect to that requirement. But beyond that it still leaves the assessment of the facts and the weighing of the considerations in the hands of the decision-maker. It is for him to assess the relative weight to be given to all the material considerations. It is for him to decide what weight is to be given to the development plan, recognising the priority to be given to it. As Glidewell, L.J. observed in Loup v. Secretary of State for the Environment and Another (1995) 71 P & C.R. 175 at p. 186 "What section 54A does not do is to tell the decision-maker what weight to accord either to the development plan or to other material considerations." Those matters are left to the decision-maker to determine in the light of the whole material before him both in the factual circumstances and in any guidance in policy which is relevant to the particular issues."

At 1459D-G Lord Clyde considered the process of assessment:

"In the practical application of section 18A it will obviously be necessary for the decision-maker to consider the development plan, identify any provisions in it which are relevant to the question before him and make a proper interpretation of them. His decision will be open to challenge if he fails to have regard to a policy in the development plan which is relevant to the application or fails properly to interpret it. He will also have to consider whether the development proposed in the application before him does or does not accord with the development plan. There may be some points in the plan which support the proposal but there may be some considerations pointing in the opposite direction. He will require to assess all of these and then decide whether in the light of the whole plan the proposal does or does not accord with it. He will also have to identify all the other material considerations which are relevant to the application and to which he should have regard. He will then have to note which of them support the application and which of them do not, and he will have to assess the weight to be given to all of these considerations. He will have to decide whether there are considerations of such weight as to indicate that the development plan should not be accorded the priority which the statute has given to it. And having weighed these considerations and determined these matters he will require to form his opinion on the disposal of the application. If he fails to take account of some material consideration or takes account of some consideration which is irrelevant to the application his decision will be open to challenge. But the assessment of the considerations can only be challenged on the ground that it is irrational or perverse."

14. For the purposes of section 54A (section 38(6)) it is sufficient that the proposal accords with the development plan considered as a whole. It does not have to accord with each and every policy therein: R v Rochdale MBC ex parte Milne [2001] JPL 470.
15. The relevant time for assessing whether the duty has been complied with is the time the decision is taken: Nottinghamshire County Council v Secretary of State for the Environment Transport and the Regions [1999] PLCR 340.
16. Where there has been an error in the decision making process, the test for this court in deciding whether to quash the decision is that identified by Purchas LJ in Simplex GB (Holdings) Ltd and another v Secretary of State for the Environment and Another [1988] 3 PLR 25 at 42:

"…It is not necessary for [the applicant] to show that the minister would, or even probably would, have come to a different conclusion. He has to exclude only the contrary contention, namely that the minister necessarily would still have made the same decision."

The Development Plan

17. On the dates upon which: (1) the planning application was submitted to the Second Defendant; (2) the appeal was made to the First Defendant, and; (3) the decision letter was issued, the development plan for the area in which the site is situated comprised:

i) the East Midlands Regional Spatial Strategy (March 2009) [the 'RS'];

ii) the City of Derby Local Plan Review 2006;

iii) the Derby and Derbyshire Waste Local Plan (2005) (saved policies).

18. At the time that the Inquiry sat, the First Defendant had purported to revoke the RS. That revocation was held to be unlawful on 10 November 2010, Cala Homes (South) v Secretary of State and Winchester City Council [2010] EWHC 2866. Thus, the Inquiry proceeded upon the basis that the RS was not part of the development plan, however the First Defendant's decision was taken when the position had been clarified by the court, namely the RS was part of the development plan.

The Decision Letter

19. This document contains 88 paragraphs, it contains no reference to the RS nor does it state whether the proposal complies with the development plan. The Inspector identifies the main issues as being:

i) the visual effect of the proposed buildings on the character and appearance of the surrounding area;

ii) the impact of the proposed development on highway conditions in the surrounding road network;

iii) the effect of the proposed WTF on living conditions in the surrounding area, with particular reference to air quality.

First Issue – character and appearance

The interim conclusion reached by the Inspector was that she found in favour of the proposed development on this issue.

Second Issue – highway conditions

The interim conclusion reached by the Highway Inspector was that "on balance" she had reached the view that the proposed WTF would have a materially adverse impact on highway conditions in the surrounding road network. It was a matter to which she gave "substantial weight".

Third Issue – living conditions and air quality

The Inspector was of the view that there would be three principal effects:

Nitrogen dioxide emissions

The Inspector formed the view that the "exceedences of the AQMA's NO₂ air quality objective caused by the proposed WTF, and the significant non-compliance with the SPG, combined for a material consideration which, although not enough in itself to warrant dismissal of this appeal, is nevertheless something to which I attach significant weight."

The emissions of gases from the stack

The Inspector stated that the harm to health from the emissions from the stack were something to which she could attach only negligible weight.

Local residents' fears about harm to their health

The Inspector concluded that local residents' fear about harmful health effects was not something that in itself warranted a dismissal of this appeal. She stated "It is nevertheless a material consideration of some weight". The interim conclusion on the third issue was that "the living conditions of local residents in this deprived part of Derby would not only be adversely affected but would also be unacceptably worsened, contrary to LP policy GD5. This is a matter to which I give substantial weight."

Other matters

20. Under this heading the Inspector considered a number of issues:

"Is the proposed WTF needed?"

The Inspector concludes: "I therefore accept that WTFs are needed to meet Derbyshire's landfill targets, but I am not convinced that the proposed WTF, with its MBT and ACT facilities, is the only type of WTF that could achieve this……..Indeed it could be argued that a dismissal of this appeal would give the councils an opportunity to reconsider alternative types of WTFs in the light of up to date recycling trends and the new and emerging technologies for treating residual waste."

"If the proposed WTF is needed, is Sinfin Lane the right place for it?"

Applying a scoring system, the Inspector concluded there was no better site than Sinfin Lane but noted that it is not the only possible site, merely that it scores the highest against the criteria set for the methodology of scoring. She accepted that the choice of site is consistent with the proximity principle but was not convinced that Sinfin Lane is the only site where similar reductions in tCO₂e could be made.

"Would the proposed WTF be consistent with the waste hierarchy?"

The Inspector was "…..not convinced that within the 25-year life of the proposed WTF there would always be sufficient waste within Derbyshire to justify its capacity. Furthermore, I am concerned that the council's commitment to the WTF, and the WTF's appetite for waste, could divert efforts and resources away from the promotion and encouragement of waste reduction, reuse, and recycling-composting; the first three stages of the waste hierarchy."

"Wildlife"

No problems were identified.

"Other benefits of the proposed WTF" were also considered by the Inspector.

The Inspector set out her conclusions as follows:

"80. My conclusions on the 3 main issues, and my view on the other matters discussed above, pull in different directions. I have therefore had to carry out a balancing exercise, weighing the points in favour and the points against the proposed WTF.

81. Points relating to the 2 main issues that weigh in favour of the proposed WTF:

The proposed WTF would not have a harmful visual effect on the character and appearance of the surrounding area, nor on the setting and outlook of Railway Cottages. There is therefore compliance with LP policy GD4 and WLP policy W7.

The proposed access arrangements to the site would be satisfactory.

There would be no materially adverse impact on highway conditions in Sinfin Lane.

Other uses of the site could generate the same amount, or more, traffic than the proposed WTF.

The harm to health caused by the emissions from the stack would be undetectable.

82. Points relating to the 2 main issues that weigh against the proposed WTF:

Traffic congestion at the junction of Sinfin Lane and the inner ring road would become worse, and this would have a materially adverse impact on highway conditions in the surrounding road network.

The NO₂ emissions, principally from traffic generated by the proposed WTF, would cause exceedences of the AQMA's NO₂ air quality objective. In terms of the Council's SPG: Air Quality and New Development, the exceedences would be significant.

Local residents' fears about harm to their health is a material consideration of some weight.

Living conditions of local residents would be adversely affected, contrary to LP policy GD5. The proposed WTF would make a bad situation worse.

21. On matters not directly related to the "2 main issues", the Inspector made a series of findings before concluding:

"84. I have decided that the points in favour of the proposed WTF do not outweigh the points against it. This is largely because of the substantial weight that I have given to the likely increase in traffic congestion, the significant weight I have given to the adverse effect on the AQMA, and the substantial weight that I have given to the adverse effect on the living condition of local residents."

Claimant's case

22. It is the Claimant's case that the decision of the Inspector contains the following errors of law and should be quashed:

i) Failure to take any account of the RS in reaching her decision and/or failure to refer the need to consider the RS back to the parties following the judgment in Cala Homes above;

ii) Failure to consider, determine and give adequate reasons as to whether the proposal accorded with the development plan, read as a whole;

iii) Failure to understand and apply the highway evidence before her with regard particularly to anticipated traffic impact of the proposed development upon the local highway network and/or failure to provide adequate reasons for reaching the conclusions which she did;

iv) Failure to understand and apply the evidence with regard to air quality matters in reaching her conclusions regarding the adverse impact of the proposed development and/or failure to provide adequate reasons for reaching her conclusions regarding adverse impact;

v) Failure to understand and apply the provisions of the Derbyshire Waste Strategy and/or failure to provide adequate reasons for reaching her conclusions.

23. During this hearing it was agreed that the trial of the issues would be split. Grounds 1 and 2 would be dealt with first and then Grounds 3 to 5 dealt with only if necessary after the decision on Grounds 1 and 2.

Defence case

24. On behalf of the First Defendant, it was contended:

i) In any planning decision the Inspector has to answer a practical question as to whether or not a specific proposal should be permitted. The Inspector must not lose sight of the fact that the regional strategy is potentially relevant, the question is how would it make a difference to the particular proposal;

ii) The decision letter does not have to be in a prescriptive form. If the Inspector takes account of the context of the regional policy and weighs it in her overall conclusions, the fact that there is no specific reference to the development policy does not render the decision illegitimate. This is particularly so where the policies are not contentious;

iii) When considering the decision letter in the context of the arguments canvassed at the original inquiry, the Inspector's decision turned upon the unacceptable impact of the particular proposal. It did so with a full and fair understanding of the need for this type of facility and the appropriateness of this type of location. It addressed concerns regarding recycling, capacity in the long term, in a case where the Inspector found that there were marginal calls to be made in respect of four leading sites. All these sites were within the area of Derby City Council;

iv) The RS would have made no significant difference to the overall decision. The decision letter demonstrates that the Inspector fairly understood and balanced the development plan as a whole;

v) The complaint contained in Ground 1 of the Claimant's challenge is theoretical rather than practical. The proposal at issue was a proposal to deal with waste arising in Derbyshire. The relevant waste policy for Derbyshire is contained in the Derby and Derbyshire Waste Local Plan (WLP). In essence there is nothing of substance in the RS which would have made any realistic difference to the waste policies encapsulated in the WLP;

vi) No party advanced any positive contention that the terms of the RS made any material difference to the planning issues to be determined at the time prior to its revocation. No party suggested that the revocation of the RS had caused any policy vacuum or had resulted in any material change to the substance to the applicable planning policies;

vii) The Inspector accepted that Derby was an appropriate area which would be consistent with the policy of the regional strategy. As to the type of location, again that is consistent with regional policy;

viii) It was appropriate for the Inspector to look at the practicalities of the proposal, in particular, at a local level. It does not follow that in so doing she failed to give consideration and weight to a broader balancing assessment;

ix) Further, the Inspector's approach was consistent with the practical guidance upon the implications of the Cala Home's judgment issued by the Planning Inspectorate (PINS).

25. Guidance was published on the PINS website on 12 November 2010, four days before the date of the Inspector's decision. The approach identified in paragraph 24 subparagraph ix above is prefaced as follows: "The key questions for an Inspector considering the potential relevance of intended RS abolition to a piece of casework will be to identify whether the case turns on or refers to RS policy, and if it does, to identify what action to take in the interests of fairness to the parties."
26. In paragraph 4 of Annex A of the guidance, the following is stated:

"The following approach has been developed to assist in determining which cases may merit re-opening, which may be dealt with by a reference back to the parties for comment and which cases may not need any additional action:

(a) Where RS policy has no material relevance because the decision is of limited (local only) scale and impact and the decision-maker can rely on local statutory development plan policy alone as would have been the case before 6 July 2010, no further action is required;

(b) Where it appears to an Inspector that the RS policy may be material as a consequence of the significant (greater than local) scale or impact of the proposal, that the cases put by the parties make no reference to RS, the Inspector must refer to the parties, seeking a view as to the materiality and weight of RS policies. Chart should be informed.

(c) Where a decision relies on both local policy and RS policy on the same issue, it is possible that the local statutory development plan policy can be relied upon if by applying less weight to the RS policy the outcome does not change;

(d) Where both local policy and RS policy are relied upon on the same issue but the RS is relied on to a greater extent and it has a result of applied reduced weight to the RS the outcome is less certain or would change then the party's view should be canvassed (Chart should then be advised);

(e) Where the parties' case is relied primarily on the RS, then the parties should be canvassed (Chart should then be advised)."

27. The First Defendant accepts that the Inspector's decision makes no express reference to the RS which was part of the development plan for the purpose of section 38(6). It is the First Defendant's case that the reinstatement of the RS had no realistic bearing on the issues to be decided or the substance of the planning policies to be applied.

Ground 1

28. The Claimant contends that the RS is a key component of the development plan, particularly in the context of waste issues which are often considered on a regional or sub-regional basis. It provides for the strategic outcomes which are required to be achieved within the region and in parts of the region.
29. In March 2009, the East Midlands Regional Plan was approved. It is stated to provide "a broad development strategy for the East Midlands up to 2026." It also represents the spatial element of the East Midlands Integrated Regional Strategy. It is divided into four sections: section 1: core strategy; section 2: spatial strategy; section 3: topic based priorities; section 4: sub-regional strategies within which is the Three Cities sub-regional strategy which contains policies and proposals to create more sustainable patterns of development and movement within and between Derby, Leicester and Nottingham and their hinterlands. It is agreed that the Claimant's proposal falls within the Three Cities Sub-Area.
30. Within the document the following is stated:

"The Role of the Regional Plan

The main role of the regional plan is to provide a strategy within which local authorities planning documents and Local Transport Plans can be prepared. As it forms part of the Statutory 'Development Plan' it is also material to decisions on individual planning applications and appeals……

Regional Priorities for Waste Reduction and Waste Management

3.3.57 While some elements of the hierarchy are outside the scope of the planning system, others have significant planning implications. The overall regional context for waste policy is set by the Regional Waste Strategy.

3.3.59 This baseline data has been used to project future waste growth forecasts for the principal waste streams up to the year 2020."

"Figure 2"

This provides details of projected growth in controlled waste by principal waste streams for the period 2003 to 2020.

"3.3.61 Delivering the Regional Waste Strategy will require coordinated action by a wide range of interests.

3.3.62 It will also be necessary for Waste Planning Authorities to reflect the need for additional waste management facilities in Waste Local Development Frameworks. These will include material recycling facilities (MRFSs), composting operations, inert processing plants and waste transfer facilities. Some additional waste recovery capacity will also be needed which may include energy from waste, or other technologies such as anaerobic digestion.

3.3.64 Research has been undertaken on the current scale and pattern of waste treatment facilities across the region…results indicate that waste management capacity will need to more than double by 2020 in order to meet targets set out in the Regional Waste Strategy.

Figure 5: Estimated Municipal Solid Waste Capacity Shortfall by Waste Planning Authority

3.3.65 This capacity shortfall poses a considerable challenge for the region and it is vital that it does not widen further. As a result, Waste Planning Authority should seek to protect existing lawfully operated sites and allocated sites accommodating recycling and recovery facilities from redevelopment to other land users uses where appropriate. Increasing the capacity of existing facilities including potential site expansion or site redevelopment for the recycling, recovery and treatment of waste (including the possibility of change of use to exiting transfer stations) should be supported where this will not significantly adversely affect the environment and local communities.

3.3.66 When identifying sites for waste management facilities, Waste Planning Authorities should consider the potential synergies with existing land uses such as existing and former industrial land, redundant mineral workings and sewage treatment works, as well as other criteria identified in PPS 10.

Three Cities Sub-Area

3.3.73 The cities of Derbyshire, Leicester and Nottingham are the major commercial, industrial and administrative cultural centres of the Region and the Sub-Area as whole contains just under half of the Region's population. The significant site study has illustrated that these major urban areas are currently deficient in recycling and recovery capacity, with current patterns of waste facilities more closely aligned to the road network than urban centres reflecting historical patterns of land filling the majority of the Region's waste. However, the counties of Derbyshire, Leicestershire and Nottinghamshire are together predicted to produce over 70% of all the Region's waste, the vast majority of which will be generated within the Three Cities themselves. The Three Cities themselves should therefore provide the focus for the future provision of waste management infrastructure in the Sub-Area. A centralised pattern of large facilities should be developed.

Policy 38

Regional Priorities for Waste Management

All relevant public and private sector organisations, including manufacturing, importing and packaging firms, should work together to implement the Regional Waste Strategy and promote policies and proposals that will result in 0 growth in all forms of controlled waste by 2016 and waste being treated higher up in the "Waste Hierarchy" set out in the National Waste Strategy (Waste Strategy for England 2007).

All Waste Collection Authorities and Waste Disposal Authorities should achieve a minimum target for the recycling and composting of Municipal Solid Waste of 30% by 2010 and 50% by 2015.

Waste Planning Authorities, with the exception of the Peak District National Park Authority, should make provision in their Waste Development Frameworks for waste management capacity equal to the amount of waste generated and requiring management in their areas, using the apportionment date as set out in Appendix 4, subject to further research and analysis as part of the annual monitoring process and recognition of the particular operational and location requirements of individual waste process technology…….

In the Three Cities Sub-Area a centralised pattern of large developments should be developed."

Appendix 4 (Sub-Regional Waste Apportionment (Policy 38))

This contained figures for Derby City and Derbyshire MSW "Indicative Controlled Waste Treatment Capacity" for the years 2009/2010, 2014/15, 2019/20, 2024/25.

31. The relevance of the RS and in particular Policy 38 was referred to in documents before the Inquiry; the Statement of Common Ground, the Environmental Statement, the Second Defendant's Report to the Planning Committee and the Planning Statement submitted in support of the Claimant's application.

Statement of Common Ground

32. The Inquiry was conducted upon the basis that only the main issues in dispute were the subject of evidence. Extensive material was agreed in the full and detailed Statement of Common Ground which comprised 195 pages. It was a key document in the Inquiry. At paragraph 6 under the heading "Planning Policy Framework", the RS is identified, many of its policies are specified including Policy 38. At section 8 it was agreed that there was compliance with the development plan policy both as to the allocation of the site and as to need.
33. Further, the parties agreed that there was an identified local need for the facility (WLP Policy W1b) in that there was a regional plan necessity for diversion from landfill and recycling. Waste would come from Greater Derby and Southern Derbyshire. It was agreed that there was a need for waste management facilities by sub-region and that sub-region need was urgent. The Statement of Common Ground was agreed before the purported revocation of the RS.

Report to Committee dated 15 October 2005

34. The report, submitted by the Second Defendant, includes the following:

"Summary of policies most relevant:

East Midlands Regional Plan:

Policy 38-Regional Priorities for Waste Management……..

12. Officer Opinion

………From a strategic point of view this large facility would appear to further and certainly not be in conflict with the relevant issues in Regional Plan Policy 38.

As the proposal is a waste management facility it has to be assessed in more detail against the Joint Derby and Derbyshire Waste Local Plan which provides a framework for guiding, controlling and facilitating development within the County. The relevant policies are referred to at 1.1 above. The main approach of these policies relates to the need for the development with the aim of facilitating appropriate development to places where such development would not cause unacceptable harm to the amenity of an area. The policies require the development to link well with the existing transport infrastructure routes and not become a negative landscape feature."

In relation to the Waste Local Plan W1b, there is an identified local need for the proposal in that there is a necessity in the Regional Plan for diversion from landfill and recycling and the waste would come from Greater Derby and Southern Derbyshire…….."

Planning Statement

35. The planning application supporting statement dated 12 May 2009 contained many references to regional policy which included the following:

"5.5 The Statutory Development Plan

5.5.1 Of particular importance in the policy framework is the development plan, which is produced in accordance with statutory procedures to guide the development and use of land and provide a framework for the determination of individual planning applications…….

East Midlands Regional Plan

5.5.4 The East Midlands Regional Plan (RSS 8) was adopted in March 2009 and covers the period until 2026. In accordance with the Planning and Compulsory Purchase Act 2004 it replaces the RPG 8 and the Derby and Derbyshire Structure Plan as part of the statutory development plan. The document provides both a Core Strategy as well as a topic based priorities and more detailed policies for each of the four Sub-Regional Centres identified. The site being located within Derby is located within the Three Cities Sub-Regional Centre comprising the three largest cities of the Region and is made up of the Principal Urban Areas of Derby, Leicester and Nottingham.

5.5.6 There are a number of policies which relate to waste management and energy generation which provide the need for waste management facilities which provide the background for the need for the waste management facility in the City of Derby.

5.5.7 These include:

Policy 38 which sets out regional priorities for Waste Management…….

5.5.8 Policy 38 sets out waste management targets whereby Waste Collection Authorities and Waste Disposal Authorities should achieve a minimum target for the recycling and composting of Municipal Solid Waste of 30% by 2010 and 50% by 2015……..

6 Analysis of the Planning Context

6.1 Introduction

6.1.1 This section demonstrates by reference to policies set out within Appendix that the proposed development is acceptable by considering it against the provisions of the development plan, and in light of any other material considerations. Section 38(6) of the Planning and Compulsory Purchase Act 2004 provides that:

"If regard is to be had to the development plan for the purpose of any determination to be made under the Planning Act the determination must be made in accordance with the plan unless material considerations indicate otherwise."

6.1.2 The proposed development site is located within the administrative area of Derby City Council which is a Unitary Authority responsible for the production or planning policy including waste planning policy and determination of planning applications for waste related planning development. However, the City Council has elected to produce waste development plan policy jointly with Derbyshire County Council. In this context for the purposes of section 38(3) of the Planning and Compulsory Purchase Act 2004, the statutory development plan thus comprises

The East Midland Regional Plan (March 2009)

Derby and Derbyshire Waste Local Plan (March 2005)

City of Derby Local Plan (January 2006)………

The Proposal"

At paragraph 6.2.8 data contained in the East Midlands Regional Plan Waste Apportionment for the years 2009 to 2025 is set out.

"6.2.9 Therefore, given the present circumstances there is a demonstrable need for the proposed development. This is because it will divert 190,000 of MSW arising within Derby City and Derbyshire from landfill, whereas the target is to divert at least 122kpta from landfill. Although the amount of waste to be diverted is greater than the target, the policy framework supports diverting waste as far up the Waste Hierarchy as possible. The proposal will therefore exceed the target for landfill diversion.

6.2.10 Furthermore, the proposal will also make significant contributions to the East Midlands Regional Plan target for recycling/composting, and although there is no East Midlands Regional Plan target to re-use MSW arising's diverting them from landfill is clearly supported by the policy framework……

6.4 Self Sufficiency and Proximity to Waste Arising within this section"

Reference was made to Policy 38.

"6.5 Suitability of the site"

It was stated that the proposed site was a suitable site in the context of the policy framework.

"6.7 Sustainable development, design and access"

It was stated that the proposal complied with the relevant policy framework.

"6.8 Traffic and transport"

Policies were regional policies relied upon and referred to.

"8 Conclusions

8.1.12 The proposal is compliant with all relevant planning policies at the national, regional and local level. It has been demonstrated through wide-ranging studies and assessments that the proposal can take place in accordance with the development plan without demonstrable harm to interests of acknowledged importance.

8.1.13 It is demonstrated that the proposed development is in accordance with the statutory development plan, having regard where appropriate to the wider planning policy framework. The proposal is well located, will meet an identified need, be beneficial, sustainable and is in accordance with the development plan and as such, is commended to the council."

Waste Local Plan ("WLP")

36. This was adopted having regard to the regional planning guidance for the East Midlands (RPG 8) of January 2002 which became the Regional Spatial Strategy on 28 September 2004. In March 2005 there was an update to RPG 8. In March 2009 the East Midlands Regional Plan (RSS 8) was approved, pursuant to an up to date and detailed evidence base addressing, inter alia, the need for waste facilities.
37. The WLP sought to further the aims of Policy 55 of RPG 8. It contains no requirement that a Waste Planning Authority had to deal with the waste which it generated, no reference to large centralized facilities, no detailed evidence-based assessment of what needed to be achieved.
38. As to the submission of the First Defendant that the Inspector was entitled to rely on the WLP, the Claimant submitted a letter dated 28 February 2008 from the government office for the East Midlands to the development plans officer of Derbyshire County Council. It is in response to an application for a direction under paragraph 1 (3) of Schedule 8 to the Planning and Compulsory Purchase Act 2004 in respect of policy in the Derby and Derbyshire Waste Local Plan (adopted March 2005). The letter concludes: "From 2 March 2008 the extended policies should be read in context. Where policies were adopted some time ago, it is likely that material considerations, in particular the emergence of new national and regional policy and also new evidence, will be afforded considerable weight in decisions."

Ground 1 – Findings

39. It was appropriate for the Inspector to look at the practicalities of the proposal at a local level but that had to be done in the context of her duty pursuant to section 38(6). The provisions of section 38(6) are clear. The development plan is not one of the material considerations. Its provisions, provided that they are relevant to the particular application, are to govern the decision unless there are material considerations which indicate that in the particular case the provisions of the plan should not be followed.
40. The Statement of Common Ground makes clear that the relevant planning policy framework includes the East Midlands Regional Plan, specifically Policy 38. Policy 38 includes not only the strategic objectives but up to date and highly relevant data which projects as far as 2025. There is no local data which can meet the up to date evidence base provided by Policy 38. Moreover, as Policy 38 was part of the development plan, considerable weight had to be attached to it.
41. The Planning Statement clearly identifies the Claimant's position, namely:

i) The RS contained relevant policies;

ii) The policies supported the grant of planning permission;

iii) The policies were supported in particular by Policy 38 which was evidence based.

42. The Report to Committee dated 15 October 2005 identifies as 'most relevant' the East Midlands Regional Plan including Policy 38. The officer's opinion is that the proposal would further the issues in Policy 38.
43. The documentation identified can have left the Inspector in no doubt as to the relevance of the RS as part of the development plan. It is difficult to understand why no reference is made to a key component of the development plan, the RS. This is particularly so in a decision which, upon the Inspector's own account, entailed a balancing exercise.
44. Further, in the context of the letter dated 28 February 2008, set out in paragraph 38 above, the new policy which emerged was regional, the evidence which supported it was contained in Policy 38. It was a policy which carried statutory weight. The WLP does not address the updated evidence contained in Policy 38, e.g. Policy 38 contains different targets. The local policy makes no reference to the centralised pattern of large facilities specific to the Three Cities envisaged in the regional plan nor to the contribution to the objective of a spatial strategy. There is a real difference between the two policies, primarily based on the spatial strategy of the region and its later evidence base.
45. Given the content of the East Midlands Regional Plan, in particular Policy 38, I am unable to accept the defence submission that there is nothing of substance in the RS which would have made any realistic difference to the waste policies encapsulated in the WLP. Further, I find that reliance upon the WLP conflicts with the direction given in the letter of 28 February 2008.
46. As to the defence submission that at the Inquiry neither party advanced any positive contention relating to the terms of the RS nor as to any policy vacuum caused by its revocation, it is difficult to understand why any party would seek to do so given its purported revocation.

Ground 2

47. The Inspector reaches no conclusion as to whether the proposal accords with the development plan read as a whole. Her decision was an "on balance" decision, reflecting a series of competing factors. The difficulty this creates is that it would appear that the Inspector has either failed to direct her mind to the development plan as a whole or has expressed her reasons inadequately, such that it is not possible to tell what conclusion she has reached upon it.
48. As to this ground I find that the decision letter provides no good evidential basis for concluding that the Inspector:

i) Considered the development plan;

ii) Identified provisions in it which were relevant to the issues before her;

iii) Properly interpreted the provisions of the development plan;

iv) Considered whether the development accorded with the development plan;

v) Provided any or any adequate reasons as to whether the proposal accorded with the development plan, read as a whole;

vi) Complied with the statutory duty set out in section 38(6) of the Planning and Compulsory Purchase Act 2004.

Conclusion

49. Following the decision in Cala Homes and pursuant to the PINS guidance, the Inspector should have referred the matter back to the parties for the following reasons:

i) The scale of the proposal was such as to be relevant to and address the waste management needs of an entire sub-region and was more than of merely local importance;

ii) The parties had made reference to the RS at earlier stages prior to its abolition but had not made reference to it at the Inquiry because it was understood that it had been revoked;

iii) The Inspector should have sought the parties' views upon the materiality and weight to be given to the RS.

50. Given the content of and supporting evidence contained in the RS, a key component of the development plan and the weight to be attached to the development plan as against any material considerations, I find it is impossible to say that the First Defendant would have reached the same decision had the Inspector properly performed her duties in compliance with section 38(6) of the Planning and Compulsory Purchase Act 2004.
51. Accordingly, this appeal is allowed and the decision of the First Defendant's Inspector is quashed.