England and Wales High Court (Administrative Court) Decisions

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

		Manchester Civil Justice Centre 1 Bridge Street West, Manchester, M60 9DJ
		24/02/2014

Mr Justice Stewart :

Introduction

1. On 15 May 2013 the First Defendant (D1) allowed the Second Defendant's (D2) appeal against the Claimant's (C) refusal of the application for planning permission dated 2 December 2010 for:

"Erection of a 20 mega-watt biomass fuelled renewable energy plant with associated access, car parking, internal roads, canal side mooring and landscaping."

2. D1's decision followed a public inquiry held between 13 – 27 November 2012 by the Inspector, Mr David Richards, whose report is dated 8 February 2013.
3. The relevant site is in Davyhulme, Trafford, Greater Manchester. The proposal was referred to as the Barton Renewable Energy Plant.
4. C has brought proceedings under section 288 of the Town and Country Planning Act 1990 questioning the validity of D1's decision based on alleged errors of law.
5. D2 provided a brief chronology which is uncontroversial and appears at the end of this judgment before the Appendices.

Abbreviations

6. In this judgment there will, as in many planning cases, be reference to much statutory material and policies; in addition there are various acronyms which need explanation. The following abbreviations will be used:

The 1990 Act – Town and Country Planning Act 1990

The 2004 Act – Planning and Compulsory Purchase Act 2004.

RS – North West of England Plan Regional Spatial Strategy to 2021.

CS – Trafford Core Strategy adopted January 2012.

GMJWDPD – Greater Manchester Joint Waste Development Plan Document

PPS10 – Planning for Sustainable Waste Management: Planning Policy Statement 10.

NPPF – National Planning Policy Framework.

EN1 – Overarching National Policy Statement for Energy.

EN3 – National Policy Statement for Renewable Energy Infrastructure.

IR – Inspector's Report dated 8 February 2013.

DL – D1's Decision Letter dated 15 May 2013.

BREP – Barton Renewable Energy Plant.

Statutory and Policy Materials

7. Relevant statutory and policy materials are set out in Appendix I to this judgment.

Background

8. The development is a biomass fuelled renewable energy plant capable of producing renewable electricity to be exported to the electricity grid and renewable heat which could potentially be exported to local commerce, industry and developments. Electricity generated at the plant would feed into the local grid by means of an underground cable to the existing network substation nearby.
9. C's Chief Planning Officer recommended the proposal for approval. On 11 November 2011 the planning committee resolved to refuse planning permission and the decision notice was issued on 5 December 2012.
10. After D2's appeal, on 3 July 2012 the appeal was recovered for D1's determination. The issues identified for determination on the appeal were:

(i) The effect of the proposal on air quality and perception of harm to health.

(ii) The effect of the proposal on the vitality of, and the self confidence of communities within, the nearby established areas of Davyhulme, Urmston and Flixton.

(iii) Whether the proposal would be sustainable development as defined in the NPPF. It is this last issue which is the focus of the appeal.

Relevant Legal Principles

11. Applications for planning permission and appeals require the Local Planning Authority/Secretary of State to "have regard to …the provisions of the Development Plan, so far as material to the application…(and)…any other material considerations" (the 1990 Act, sections 70 and 79).
12. By section 38(6) of the 2004 Act "the determination must be made in accordance with the plan unless material considerations indicate otherwise".
13. General principles of review under section 288 of the 1990 Act are^[1]:

(i) The Secretary of State must not act perversely. The decision may be overturned if the court considers that no reasonable person in the position of the Secretary of State, properly directing himself on the relevant material, could have reached the conclusion which he did reach.

(ii) The Secretary of State must not take into account irrelevant material or fail to take into account that which is relevant.

(iii) The Secretary of State must abide by the statutory procedure.

(iv) The Secretary of State must not depart from the principles of natural justice.

(v) If the Secretary of State differs from his Inspector on a finding of fact or takes into account any new evidence or matter of fact not canvassed at the inquiry he must, if this involves disagreeing with the Inspector's recommendations, notify the parties and give them at least an opportunity to make further representations in accordance with the Inquiry Procedure Rules.

(vi) It is no part of the Court's duty to subject the decision letter to the kind of scrutiny appropriate to the determination of the meaning of a contract or statute.

14. As to the Development Plan/Policy^[2]:

(i) A planning authority must proceed upon a proper understanding of the Development Plan; it cannot have regard to the provisions of the plan if it fails to understand them.

(ii) Policy statements should be interpreted objectively in accordance with the language read in its proper context and according to what is actually written, rather than what may have been intended.

(iii) Policy statements should not be construed as if they were statutory or contractual provisions. Although a development plan has a legal status and legal effects it is not analogous in its nature or purpose to a statute or contract.

(iv) Development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another.

(v) Many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and the exercise of their judgment can only be challenged on the ground that it is irrational or perverse.

(vi) "…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 be required to assess all of these and then decide whether in light of the whole plan the proposal does or does not accord with it. He will also 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 take 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."^[3]

(vii) In R v (TW Logistics Limited) v Tendring DC^[4], Lewison LJ said:

"17. In the the Tesco case Lord Reed made another important point about development plans:

Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment…"

"18. This point has two consequences that are relevant to our case. First, we must not adopt a strained interpretation of the Local Plan in order to produce complete harmony between its constituent parts. Second, we must be wary of a suggested objective interpretation of one part of the Local Plan as having precedence over another. In a case in which different parts of the Local Plan point in different directions, it is for the planning authority to decide which policy should be given greater weight in relation to a particular decision. This, in my judgment, is established by the decision of Ouseley J in R oao Cummins v Camden LBC [2001] EWHC 1116 (Admin) to which Mr Dove also referred us. In that case Ouseley J said:

"It may be necessary for a Council in a case where policies pull in different directions to decide which is the dominant policy: whether one policy compared to another is directly as opposed to tangentially relevant, or should be seen as the one to which the greater weight is required to be given.""

(viii) The formulation of certain policies requires a purposive approach to their accordance with a proposal.^[5]

(ix) In R v Rochdale MBC Ex parte Milne^[6] Sullivan J said:

"47….The local planning authority should have regard to the provisions of the Development Plan as a whole, that is to say, to all of the provisions which are relevant to the application under consideration for the purpose of deciding whether a permission or refusal would be "in accordance with the plan".

48. It is not at all unusual for Development Plan policies to pull in different directions….In such cases there may be no clear cut answer to the question: "is this proposal in accordance with the plan?" The local planning authority has to make a judgment bearing in mind such factors as the importance of the policies which are complied with or infringed, and the extent of compliance or breach….

49. In the light of that decision^[7] I regard as untenable the proposition that if there is a breach of any one policy in a Development Plan a proposed development cannot be said to be "in accordance with the plan". Given the numerous conflicting interests that Development Plans seek to reconcile:…it would be difficult to find any project of any significance that was wholly in accord with every relevant policy in the Development Plan. Numerous applications would have to be referred to the Secretary of State at departures from the Development Plan because one or a few minor policies were infringed, even though the proposal was in accordance with the overall thrust of Development Plan policies.

50..…It is enough that the proposal accords with the Development Plan considered as a whole. It does not have to accord with each and every policy therein."

(x) The explanation of a policy within a plan should be taken into account in interpreting the policy.^[8]

(xi) If proper regard has not been had to policy, the court will quash the decision, unless the situation is an exceptional case where the court is satisfied that the failure has not affected the outcome and the decision would have been the same in any event.^[9]

15. Matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State. The weight to be attributed to various material considerations in exercising his statutory power is a matter for the discretion of the decision maker.^[10] In the Newsmith case Sullivan J said:

"6. 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.

7. In any case, where an expert tribunal is the fact finding body the threshold of Wednesbury unreasonableness is a difficult obstacle for an applicant to surmount. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he or she is reaching a series of planning judgments….^[11]

8. Moreover, the Inspector's conclusions will invariably be based not merely upon the evidence heard at an inquiry or an informal hearing, or contained in written representations but, and this will often be of crucial importance, upon the impressions received on the site inspection. Against this background an applicant alleging an Inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgment, faces a particularly daunting task…."

16. As to decision letters:

(i) They should be read as a whole, remembering that they are addressed to a well informed audience.^[12]

(ii) They must be read in good faith, as a whole and not legalistically. References to policies must be taken in the context of the general thrust of the Inspector's reasoning. Sometimes an inspector's statement of the policy may be elliptical but this does not necessarily show misunderstanding. The court has to 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.^[13]

17. As to the reasons for a decision Lord Brown of Eaton-under-Heywood said^[14]:

"36. 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."

The Development Plan

18. The Inspector correctly stated that the Development Plan relevant to the decision was the RS, the CS and the GMJWDPD. In DL5, D1 agreed with this and noted the imminent revocation of the RS.
19. Relevant national policy included the NPPF, PPS10, EN1 and EN3. EN1 and EN3 were prepared for larger projects than this site but were a material consideration in this application.

The Statement of Common Ground ("SOCG")

20. I have set out in Appendix II the provisions of SOCG which D2 relied on. The Inspector was entitled to work with the base line of the SOCG, against which the submissions made to him were to be tested. He was also entitled to give the SOCG significant weight, save to the extent that it was clear that a party's case had changed and the other parties were not procedurally disadvantaged.^[15]

The Decision Letter

21. As is usual, the DL contains numerous cross references to the IR. In paragraphs 4 – 6 DL, D1 set out the relevant policy considerations. At paragraph 14, D1 agreed with the Inspector (IR 582) that there was a level of fear amongst objectors as regard air quality and health impacts; while this was a material consideration to which some weight could be attached, it was not supported by substantive evidence of actual harm to health arising from the proposal.
22. The central parts of the DL so far as relevant to the present issues are:

Whether the proposal would be sustainable development.

"18. The Secretary of State has given very careful consideration to the Inspector's reasoning on this matter at IR 612 to IR 627. He agrees with the Inspector that, although the evidence on waste wood availability is clearly a matter that affects the public perception of the scheme, the evidence is insufficient to show that existing generating capacity exceeds the likely supply of suitable sustainable waste wood (IR 627). Like the Inspector, the Secretary of State attaches greater weight to the strong support expressed in national and local policy for a development which has the potential to contribute to renewable energy capacity, and the related benefits of security and diversity of supply (IR 627).

19. Having had regard to the Inspector's comments at IR 628 to 629, the Secretary of State agrees that, although the climate change benefits of the scheme would be greater if Combined Heat and Power (CHP) had been designed as an integral part of the scheme, as the location offers the prospect for use of heat from the generation of electricity, he does not consider that the lack of specific proposals for CHP should stand in the way of granting planning permission (IR 629).

20. In conclusion on this matter, like the Inspector, the Secretary of State considers that the Government's planning policies offer strong support for an increase in generating capacity from renewable sources and that, whilst the questions raised in respect of wood waste supplies are relevant to the determination of the appeal, he does not consider that they outweigh development plan support for the scheme (IR 630). In common with the Inspector, he concludes that the proposal constitutes a sustainable form of development (IR 631).

…..

Overall Conclusion

26. The Secretary of State sees no reason to disagree with the Inspector's concluding remarks at IR 648 – 658. In respect of CS Policy L6, like the Inspector (IR 654) he is satisfied that concerns about the availability of waste wood in the region do not amount to a sufficient reason to refuse permission for development that is otherwise acceptable. He also shares the Inspector's view that the air quality and health impacts would be acceptable and that there is no substantial evidence that the development would harm any area in need of regeneration (IR 654). Having had regard to the Inspector's comments at IR 655, the Secretary of State is satisfied that the proposal does not give rise to material conflicts with GMJWDDP policies 8 and 10. In common with the Inspector, he attributes substantial weight to the matter set out at IR656. He agrees with the Inspector that, in other respects, the policies in the CS are supportive of the scheme and that the proposal accords broadly with the development plan in respect of energy and waste management practice (IR657). Overall, the Secretary of State is satisfied that the scheme does not give rise to material conflicts with the development plan.

27. The Secretary of State acknowledges that there are genuine concerns and fears in connection with the impacts on air quality and health which have given rise to a perception of harm, and the effects on the community in terms of regeneration and confidence. However, like the Inspector (IR658), he gives greater weight to the presumption in favour of sustainable development, and the need to approve development which accords with the development plan without delay."

The Inspector's Report

23. A number of paragraphs of the IR have been carefully analysed and dissected by all the parties in this appeal. I have extracted the main paragraphs and they are attached as Appendix III to this judgment.

First Ground: Errors re Waste Supply and the Waste Hierarchy

24. C relies upon policy for the following propositions:

(i) Development Plan and national policy is that waste should be managed in accordance with the waste hierarchy^[16].

(ii) Development Plan and national policy require the developer to demonstrate that the proposal complies with the waste hierarchy^[17].

(iii) Development Plan and national policy only support biomass proposals if they accord with the waste hierarchy; the social, environmental and economic case for widespread deployment of biomass-fuel plant depends on the sustainability of fuel used for it^[18].

25. A central factual issue at the inquiry was the potential waste wood supply. BREP has the capacity to burn approximately 200,000 tonnes of waste wood per year of which 70% was to be waste wood otherwise sent to landfill. D2's application for planning permission in its Supplementary Planning Statement referred to "overwhelming evidence to demonstrate that the North West generates a sufficient supply of waste wood to meet BREP's demands."^[19] At the inquiry C challenged D2's assessment of the available waste wood.
26. C criticises the decision of D1 and the conclusions of the Inspector on numerous grounds, namely:

• They fail to deal with the question of supply of waste wood properly or at all.

• D1 and the Inspector concluded that the issue in respect of waste wood supplies was outweighed by strong support expressed in national and local policy, when that policy support was dependent upon the scheme complying with the waste hierarchy, which was in turn dependent on the source of the supplies.

• Therefore, D1 misinterpreted and/or failed to take into account properly or at all the relevant Development Plan provisions and national and local policy provisions; further, he failed to take account of material considerations and/or took account of immaterial considerations and/or came to inconsistent conclusions and/or conclusions unsupported by his findings.

• Finally it is said that this was an irrational decision and/or that D1 failed to give proper and adequate reasons for his conclusions.

First Ground: Discussion

27. It is important to note the following:

(i) Early in his report the Inspector summarised the material policies of the Development Plan.^[20] In particular, he noted "policy EM11 says that efforts should be made to minimise waste, maximise re-use and maximise opportunities for the use of recycled materials. Residual waste should be managed at the highest practicable level in the Government's waste hierarchy"^[21] and "waste management proposals should demonstrate consistency with the waste hierarchy…"^[22]

(ii) The Inspector set out in some detail his conclusions as to C's case in respect of waste wood supplies^[23].

(iii) He considered carefully all the evidence as to whether the existing generating capacity exceeds the likely supply of suitable sustainable waste wood and concluded that the evidence was insufficient to show that it did.^[24] Against the backdrop of that uncertainty, he made it clear that he attached greater weight to the support in national and local policy for a development which has the potential to contribute to renewable energy capacity and related benefits of security and diversity of supply.^[25]

(iv) It had been agreed in para 8.38 of the Statement of Common Ground that the appeal proposals would contribute to the supply of renewable energy and towards the carbon reduction targets.^[26]

28. I shall now address the specific criticisms which C makes of the IR.
29. 1 First, C submits that the Inspector reviewed the evidence about waste wood capacity and Cs evidence, particularly on the alleged flaw in D2's figures. It is said that having set this out, particularly in IR617, the Inspector does not grapple with the fact that there was not sufficient waste wood going to landfill, even on D2's own figures.^[27] C contends also that it was plain as a pikestaff that there was not sufficient waste wood going to landfill so as to fuel the proposed development.
30. 2 I do not accept this submission. The Inspector carefully reviews and summarises what had been a large mass of evidential material placed before him.^[28] He then comes to a clear conclusion in IR 621 that "…the supply situation is unlikely to be as clear cut as indicated in the Planning Statements supporting the application." C's case had been that on a clear arithmetical basis there was insufficient supply of waste wood which would otherwise go to landfill. D2's case was that there was. The Inspector in IR 621 does not accept D2's case that the situation is clear cut.
31. 3 In IR 621 the Inspector then reminds himself of the waste hierarchy.^[29] In IR 622 he considers evidence which D2 had produced as to the market for lower grade wood waste being poorly developed and evidence of waste wood which should be going to landfill being buried or burnt. He also mentions the possible effects of new measures to restrict the landfilling of wood waste.
32. 4 In IR 624 the Inspector says:-

"….While there may come a time when installed capacity for dedicated energy recovery from waste wood and biomass exceeds sustainable sources of fuel supply, the evidence currently available is not sufficient to conclude that such capacity already exceeds supply, or that waste which might be processed higher up the hierarchy is likely to be diverted to energy recovery."

33. 5 Pausing at that point in the report, it is clear that the Inspector does not accept either D2's case that there was sufficient waste wood which would otherwise go to landfill; nor does he accept Cs' case that there was not. His conclusion is that there is some uncertainty. Read together with his findings at IR 655 and IR 656,^[30] the Inspector decides:-

(i) The proposal would divert waste wood from landfill.

(ii) He is not persuaded that on the currently available evidence:

(a) capacity for dedicated energy recovery from waste wood exceeds supply^[31] or

(b) waste which might be processed higher up the hierarchy is likely to be diverted to energy recovery. (my underlining)

(iii) D2's evidence that there was a sufficient supply of waste wood which would otherwise go to landfill is not as clear cut as they contended.^[32]

34. 6 The Inspector had heard the evidence and he was fully entitled to come to the conclusions he did. Nor do I accept C's criticism that in IR 624 the Inspector is not taking account of the position including the development, when he says he could not conclude that 'waste which might be processed higher up the hierarchy is likely to be diverted to energy recovery.' (my underlining)
35. C's second main submission is that the Inspector asks himself the wrong questions and misinterprets policy.
36. 1 It is undoubtedly the case that a number of policies use words which require an applicant to demonstrate certain matters. So, for example in CS L6.2 developers are required "to demonstrate the proposal's consistency with the principles of the waste hierarchy". and GMJWDPD Policies 4 and 10^[33] say that "applications…will be permitted where the applicant can demonstrate ….the development will result in the highest practicable level of recycling and recovery of materials, in line with the principle of the waste hierarchy…"
37. 2 C submits that there is no finding by the Inspector that the proposal complies with the waste hierarchy, but he then attaches greater weight to the policies in favour of renewable energy. C says that is nonsensical because these policies are themselves dependent on compliance with the waste hierarchy.^[34]
38. 3 In conjunction with this is said to be a number of further errors:

(i) alleged internal contradiction in IR 654

(ii) alleged erroneous finding in IR 656.

39. I remind myself of the legal principles set out earlier in this judgment and, in particular, that interpretation of policy is a matter for the court, but the application of policy to a given set of facts is a matter for the decision maker, unless irrational or perverse. What is the correct analysis of the Inspector's Report in the present case?

In my judgment it is this: -

(i) The Inspector sets out the correct policies in his report.

(ii) The Inspector also clearly sets out the content and import of the relevant policy re the waste hierarchy (see e.g. IR 616, 621, 650, 654).

(iii) The court should be cautious in those circumstances before concluding, as C submits, that the Inspector then asks himself the wrong question a few paragraphs later (IR 655, IR 656) or indeed in the same paragraph (IR 654).^[35]

(iv) Policy should not be interpreted as a statute. The Inspector finds that the proposal would divert waste wood from landfill and so accord with the waste hierarchy (IR 655, IR 656). He is not saying he is satisfied that all wood which goes to the site will be diverted from landfill, but that incineration would not divert substantial quantities of clean waste wood which would otherwise be capable of being re-used (IR 621, IR 624). All these conclusions were, in my judgment, matters for the decision-maker. The interpretation of the policy does not require black and white burden of proof determination.

The Inspector does not misinterpret policy and he is entitled to decide, as he does, whether or not policy was or was not complied with on the facts of the case. He decides (IR 656) that the proposal does accord with the waste hierarchy.

(v) Nor does the Inspector misinterpret national policy. Having found that the proposal accorded with the waste hierarchy, but not in a black and white way, he focusses on the other parts of national policy which supported development with the potential to contribute to renewable energy capacity etc. (IR 627, IR 655). If the decision as to conformity with the waste hierarchy policy is somewhat nuanced [as it is] he is entitled, having found it was complied with, to emphasise other, albeit related, support for the development in the National Policy.

40. I now turn to the Decision Letter. C specifically criticises DL18. The submission is that D1 does not refer to any of the relevant policies and regards the supply of suitable sustainable waste wood as a matter of "public perception of the scheme". I do not accept this criticism. DL 18 makes it clear that D1 "has given very careful consideration to the Inspector's reasoning on this matter at IR 612 to IR 627". In DL paragraph 20 the Secretary of State deals with the conclusions and refers to the questions raised in respect of wood waste supplies. This is reflected also in DL 26.
41. D1 clearly takes on board the relevant factors in the IR and is in full agreement with the conclusions in IR 630. This paragraph is quintessentially a planning judgment where the Inspector says "given the inevitable uncertainties in relation to the evidence base, I do not consider they outweigh the development plan support for the scheme." Following the principles in the cases cited above,^[36] the question which the Secretary of State asks himself is whether the proposal accords with the development plan considered as a whole. In respect of the policies which require compliance with the waste hierarchy, and all the other policies, the Secretary of State is fully entitled to conclude "he agrees with the Inspector that in other respects the policies in the CS are supportive of the scheme and that the proposal accords broadly with the development plan in respect of energy and waste management (IR 657). Overall the Secretary of State is satisfied that the scheme does not give rise to material conflicts with the development plan." (I shall deal later in this judgment with C's second Ground).^[37]
42. For these reasons I reject all the Claimant's contentions in respect of the first ground of complaint. The DL paragraphs 18, 20 and 26 are, in my judgment, without legal error, rational and, in conjunction with the cited passages of IR, provide perfectly adequate reasons for the decision.

Second Ground: Combined Heat and Power (CHP) and GMJWDPD Policy 8

43. C alleges that D1 misinterprets the relevant Development Plan provisions and/or fails to take them into account properly or at all, and misinterprets parts of national and local policy and/or fails to take them into account properly or at all. In addition, the allegation is made that D1 fails to take account of material considerations and/or takes account of immaterial considerations and/or comes to conclusions unsupported by his findings and/or comes to an irrational decision and/or fails to give proper and adequate reasons for his conclusions.
44. All these challenges stem from the Inspector's dealing with Policy 8 GMJWDPD, which provides:

"Applications for waste management facilities that have the potential to utilise biogas or energy from waste fired technologies will be required to provide combined heat and power unless it can be demonstrated this would prevent the development of waste management facilities that had the potential to deliver important waste infrastructure.

In cases where an applicant considers that it would not be feasible to provide combined heat and power it will be the responsibility of the applicant to clearly demonstrate the reasons for this position."

45. The following paragraphs of the IR are material: IR616, 628, 629 – 631, 655 and 657.
46. .1 The Claimant submits that IR 628 incorrectly states the position by saying "policy 8 expects EfW facilities to have the potential to provide …CHP…unless it is proved to be unfeasible." In fact, it is said, policy 8 requires those with such potential to provide CHP.
47. .2 I consider it unfortunate that the Inspector should be criticised for the wording of the second sentence of IR 628 since it reflects the wording of the SOCG para 8.53 agreed by all parties. In any event: -

(i) The Inspector well understood the contention that there should be a "definite scheme to provide for CHP" so as to comply with Policy 8.^[38]

(ii) In IR629 the Inspector considers the issue where:-

C was contending that the Scheme should provide CHP

D2 was contending that it was not practicable to do so.^[39] The Inspector does not accept D2's case that they could not provide a feasibility report because of confidentiality, but he did acknowledge the difficulty in securing commitments from potential users.^[40] He takes this into account and also takes into account that there is the prospect for use of heat from the generation of electricity. He then makes a planning judgment which in essence is: there is not full compliance with Policy 8 but there are factors to be put in the balance, both as to the reasons for lack of full compliance and the other supporting policies.

(iii) This analysis is repeated in the conclusions at IR655 – 657. In particular IR655 begins with consideration of the dominant policy, GMJWDPD Policy 10. Against that backdrop and against the backdrop of the supportive policies, the Inspector justifiably concludes that the absence of firm proposals for CHP "does not undermine overall compliance with the Development Plan."

48. In DL 26 D1 says that having regard to IR655 he is "satisfied that the proposal does not give rise to material conflicts with GMJWDDP (sic) policies 8 and 10." C submits that D1 was wrong to say this and that it is in conflict with the IR. However the important word is "material". This word has to be presumed to have been intentionally inserted. What it means is that to the extent that the Inspector found (as he did) that there was not full compliance with Policy 8, D1 (like the Inspector) came to a planning judgment against the backdrop of all other policies.
49. None of this is irrational or perverse. None of it misinterprets policy. There can be no valid criticism, based on the authorities, of the fact that D1 then finds that "the proposal accords broadly with the development plan in respect of energy and waste management" (my underlining). Again I must assume that the use of the word "broadly" is not happenchance. It reflects a balanced planning judgment, part of which is that Policy 8 was not fully complied with but D1 does not regard there to be "material" conflicts.
50. C also refers to the fact that National Policy, which is in similar terms to Policy 8,^[41] is not referred to in the IR or DL. The answer to this is :–

(i) it is common ground that National Policy adds nothing of significance to the GMJWDPD Policy 8;

(ii) the focus of C's closing submission to the Inspector was Policy 8.

51. Finally, I reject C's arguments that (i) the decision was irrational and (ii) the DL fails to comply with the criteria referred to in the South Bucks case.^[42] As to (ii) there is no basis for asserting that C can "satisfy the court that (it) has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."

Conclusion

52. For those reasons the claim fails on both grounds of challenge.

Appendix I Town and Country Planning Act 1990 c. 8 Part III CONTROL OVER DEVELOPMENT Determination of applications

70.— Determination of applications: general considerations.

(1) Where an application is made to a local planning authority for planning permission—

(a) subject to sections 91 and 92, they may grant planning permission, either unconditionally or subject to such conditions as they think fit; or

(b) they may refuse planning permission.

(2) In dealing with such an application the authority shall have regard [to—]

[

(a) the provisions of the development plan, so far as material to the application,

(b) any local finance considerations, so far as material to the application, and

(c) any other material considerations.

………………

79.— Determination of appeals.

(1) On an appeal under section 78 the Secretary of State may—

(a) allow or dismiss the appeal, or

(b) reverse or vary any part of the decision of the local planning authority (whether the appeal relates to that part of it or not),

and may deal with the application as if it had been made to him in the first instance.

……………………….

(4) Subject to subsection (2), the provisions of [70, 72(1) and (5), 73 and 73A and Part I of Schedule 5] shall apply, with any necessary modifications, in relation to an appeal to the Secretary of State under section 78 as they apply in relation to an application for planning permission which falls to be determined by the local planning authority [ and a development order may apply, with or without modifications, to such an appeal any requirements imposed by a development order by virtue of section 65 or 71].

Town and Country Planning Act 1990 c. 8 Part XII VALIDITY

288.— Proceedings for questioning the validity of other orders, decisions and directions.

(1) If any person—

(a) …………………….

(b) is aggrieved by any action on the part of the Secretary of State to which this section applies and wishes to question the validity of that action on the grounds—

(i) that the action is not within the powers of this Act, or

(ii) that any of the relevant requirements have not been complied with in relation to that action,

he may make an application to the High Court under this section.

……………….

(5) On any application under this section the High Court—

(a) ………….

(b) if satisfied that the order or action in question is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it, may quash that order or action.

……………

Planning and Compulsory •Purchase •Act •2004 c. 5

Part 3 DEVELOPMENT Development plan

38 Development plan

(1) A reference to the development plan in any enactment mentioned in subsection (7) must be construed in accordance with subsections (2) to (5).

………………..

(3) For the purposes of any other area in England the development plan is–

(a) the regional strategy for the region in which the area is situated ………. and

(b) the development plan documents (taken as a whole) which have been adopted or approved in relation to that area and

(c) the neighbourhood development plans which have been made in relation to that area.

……………..

(5) If to any extent a policy contained in a development plan for an area conflicts with another policy in the development plan the conflict must be resolved in favour of the policy which is contained in the last document to be adopted, approved or published (as the case may be).

(6) If regard is to be had to the development plan for the purpose 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.

North West of England Plan Regional Spatial Strategy to 2021

…….

Policy EM 11

Waste Management Principles

Every effort should be made to minimise waste, maximise re-use, and maximise opportunities for the use of recycled material. Such residual waste as does arise should be managed at the highest practicable level in the Government's waste hierarchy. The following sequence of initiatives should be followed, and appropriate facilities provided:

first, waste minimisation; then maximise the re-use of waste for the same or a different purpose; then composting or recycling (for instance through streamed "kerbside" collections, "bring" banks, civic amenity sites, and centralised recycling facilities); then intermediate treatment of wastes that cannot readily be composted or recycled (through anaerobic digestion or mechanical biological treatment (MBT)); or treatment to deal with hazardous materials; then production of refuse derived fuels from waste; then recovery of energy from residual waste and refuse derived fuels (by a range of thermal treatments); and finally disposal of residual wastes by land-filling (or land-raising), including the recovery of energy from landfill gas where practicable.

………………………..

Policy EM 15

A Framework For Sustainable Energy In The North West

Plans and strategies should promote sustainable energy production and consumption in

accordance with the principles of the Energy Hierarchy set out in Figure 9.2 and within the

Sustainable Energy Strategy. In line with the North West Sustainable Energy Strategy the

North West aims to double its installed Combined Heat and Power (CHP) capacity by 2010

from 866 MWe to 1.5 GW, if economic conditions are feasible.

All public authorities should in their own proposals and schemes (including refurbishment)

lead by example to emphasise their commitment to reducing the annual consumption of

energy and the potential for sustainable energy generation, and facilitate the adoption of

good practice by the widest range of local stakeholders.

Minimise demand for energy & cut unnecessary use
Energy use to be as efficient as possible
Renewable energy to be used and renewable sources developed (any) continuing use of fossil & other fuels to be clean and efficient for heating and CHP

Trafford Core Strategy

Strategic Objective 7 (SO 7)



14 L5 -CLIMATE CHANGE

14.1 Climate Change is one of the biggest challenges we face and it impacts on a wide range of different policy areas. The effects of climate change need to be considered at all stages of the development process in order to ensure that development minimises its impacts and mitigates its effects.

POLICY L5: CLIMATE CHANGE

L5.1 New development should mitigate and reduce its impact on climate change factors, such as pollution and flooding and maximise its sustainability through improved environmental performance of buildings, lower carbon emissions and renewable or decentralised energy generation.

POLICY L6: WASTE

L6.1 The Council recognises the importance of sustainable waste management and the need for Trafford to make an appropriate contribution towards enabling Greater Manchester to meet its waste management needs, including those requirements identified in the Greater Manchester Joint Waste Development Plan Document, and having regard to the Greater Manchester Municipal Waste Management Strategy.

L6.2 The Council will, therefore:

………………..

(b) Require all developers of new waste management facilities within the Borough to demonstrate the proposal's consistency with the principles of the waste hierarchy (prevention, preparing for reuse, recycling, other recovery, and disposing only as a last resort);

L6.3 In determining applications for new management facilities within the borough, the Council will have full regard to the environmental, social and economic impacts of such development, including the scope for securing long term benefits in improving the environment, the regeneration of areas in need of investment and co-location with other employment uses.

Greater Manchester

Joint Waste Development Plan Document

……………….

Objective 2: To promote the movement of waste up the waste hierarchy, assuming minimisation at source, increasing the use, recycling and recovery, whilst recognising there may still be a need for additional landfill capacity for residual waste.

……………….

2 Future Waste Management Requirements

2.1 This section sets out policies to guide future waste management requirements together with supporting data on waste arisings, current treatment and disposal capacity.

……….

2.8 A calculation of capacity requirements was produced in the form of a Needs Assessment in 2007 and updated in 2010. The Needs Assessment models future waste arisings alongside current/planned waste capacity data to identify future waste treatment and disposal requirements. This data has been analysed within the Needs Assessment (http://www.gmwastedpd.co.uk/docs/NAreportApril2010.pdf), through the application of Scenario 2, which sets out the capacity requirements based on the achievement of specific recycling and recovery targets and the management of waste in line with the waste hierarchy.

…………

Policy 4

Site Allocations

Applications for waste management development on sites identified in this policy will be permitted where the applicant can demonstrate that:

i. the proposal meets the requirements of the Waste Plan, relevant Core Strategy and other relevant national and local planning policy; and

ii. the development will result in the highest practicable level of recycling and recovery of materials, in line with the principle of the waste hierarchy and Scenario 2 of the Needs Assessment.

………

Policy 8

Requirement for Combined Heat and Power

Applications for waste management facilities that have the potential to utilise biogas or energy from waste fired technologies will be required to provide combined heat and power unless it can be demonstrated that this would prevent the development of waste management facilities that have the potential to deliver important waste infrastructure.

In cases where an applicant considers that it would not be feasible to provide combined heat and power it will be the responsibility of the applicant to clearly demonstrate the reasons for this position.



………………

4.11 Tackling climate change as a key Government priority as a planning system and a critical new driver for waste management…

4.14 Greater Manchester faces a challenge to build a low carbon economy and deliver decentralised energy. ….

Policy 10

Unallocated Sites

Applications for waste management facilities on unallocated sites will be permitted where the applicant can demonstrate that:

i. The proposal fits within the spatial strategy set out in the Waste Plan and contributes to the Waste Plan aim and objectives; and

ii. The proposal meets the same assessment criteria as allocated sites.

Reasoned Justification

4.26 The purpose of this policy is to provide a positive and flexible approach to the delivery of waste management facilities, allowing for emerging technologies to come forward and future waste management facilities to be appropriately located.

Safeguarding

4.27 PPS10 says that planning authorities should consider the likely impact of proposed non-waste related development on existing waste management facilities and on sites allocated to waste management. If a proposal would prejudice the implementation of the waste management strategy in the development plan, consideration should be given to how the proposal could be amended to make it acceptable or, where this is not practicable, to refusing planning permission…

Planning for sustainable waste management: planning policy statement 10

SUSTAINABLE WASTE MANAGEMENT

1.The overall objective of Government policy on waste, as set out in the strategy for sustainable development, is to protect human health and the environment by producing less waste and by using it as a resource wherever possible. By more sustainable waste management, moving the management of waste up the 'waste hierarchy' of prevention, preparing for reuse, recycling, other recovery, and disposing only as a last resort, the Government aims to break the link between economic growth and the environmental impact of waste5. This means a step-change in the way waste is handled and significant new investment in waste management facilities. The planning system is pivotal to the adequate and timely provision of the new facilities that will be needed.

…………

KEY PLANNING OBJECTIVES

3.Regional planning bodies and all planning authorities should, to the extent appropriate to their responsibilities, prepare and deliver planning strategies that:

•     help deliver sustainable development through driving waste management up the waste hierarchy, addressing waste as a resource and looking to disposal as the last option, but one which must be adequately catered for;

•     provide a framework in which communities take more responsibility for their own waste, and enable sufficient and timely provision of waste management facilities to meet the needs of their communities;

•     help implement the national waste strategy, and supporting targets, are consistent with obligations required under European legislation and support and complement other guidance and legal controls such as those set out in the Waste Management Licensing Regulations 1994;

•     help secure the recovery or disposal of waste without endangering human health and without harming the environment, and enable waste to be disposed of in one of the nearest appropriate installations;

•     reflect the concerns and interests of communities, the needs of waste collection authorities, waste disposal authorities and business, and encourage competitiveness;

•     protect green belts but recognise the particular locational needs of some types of waste management facilities when defining detailed green belt boundaries and, in determining planning applications, that these locational needs, together with the wider environmental and economic benefits of sustainable waste management, are material considerations that should be given significant weight in determining whether proposals should be given planning permission;

•     ensure the design and layout of new development supports sustainable waste management.

………..

DETERMINING PLANNING APPLICATIONS

Approach – waste planning authorities

…………

25.In the case of waste disposal facilities, applicants should be able to demonstrate that the envisaged facility will not undermine the waste planning strategy through prejudicing movement up the waste hierarchy.

Responsibilities

26. In considering planning applications for waste management facilities, waste planning authorities should concern themselves with implementing the planning strategy in the development plan and not with the control of processes which are a matter for the pollution control authorities.

27. The planning and pollution control regimes are separate but complementary. Pollution control is concerned with preventing pollution through the use of measures to prohibit or limit the release of substances to the environment to the lowest practicable level. It also ensures that ambient air and water quality meet standards that guard against impacts to the environment and human health. The planning system controls the development and use land in the public interest and should focus on whether development is an acceptable use of the land, and the impacts of those uses on the development and use of land12. Waste planning authorities should work on the assumption that the relevant pollution control regime will be properly applied and enforced.

Health

30. Modern, appropriately located, well-run and well-regulated, waste management facilities operated in line with current pollution control techniques and standards should pose little risk to human health. The detailed consideration of a waste management process and the implications, if any, for human health is the responsibility of the pollution control authorities. However, planning operates in the public interest to ensure that the location of proposed development is acceptable and health can be material to such decisions.

31. Where concerns about health are raised, waste planning authorities should avoid carrying out their own detailed assessment of epidemiological and other health studies. Rather, they should ensure, through drawing from Government advice and research13 and consultation with the relevant health authorities and agencies, that they have advice on the implications for health, if any, and when determining planning applications consider the locational implications of such advice. In turn, the relevant health authorities and agencies will require sufficient understanding of the proposed waste management process to provide considered advice. A concurrent process and a transparent relationship between the planning and pollution control regimes will help facilitate this.

………….

ANNEX C

The Waste Hierarchy

The waste hierarchy

Prevention

Preparing for re-use

Recycling

Other recovery

Disposal

•     the most effective environmental solution is often to reduce the generation of waste, including the re-use of products – prevention1

•     products that have become waste can be checked, cleaned or repaired so that they can be re-used – preparing for re-use

•     waste materials can be reprocessed into products, materials, or substances – recycling – waste can serve a useful purpose by replacing other materials that would otherwise

have been used – other recovery – the least desirable solution where none of the above options is appropriate – disposal.

National Planning Policy Framework

………….

14. At the heart of the National Planning Policy Framework is a presumption in favour of sustainable development, which should be seen as a golden thread running through both plan-making and decision-taking.

For plan-making this means that:

•     local planning authorities should positively seek opportunities to meet the development needs of their area;

•     Local Plans should meet objectively assessed needs, with sufficient flexibility to adapt to rapid change, unless:

•     any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or

•     specific policies in this Framework indicate development should be restricted.

For decision-taking this means:

•     approving development proposals that accord with the development plan

without delay; and

•     where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless:

•     any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or

•     specific policies in this Framework indicate development should be restricted.

…………..

10. Meeting the challenge of climate change, flooding and coastal change

……….

97.To help increase the use and supply of renewable and low carbon energy, local planning authorities should recognise the responsibility on all communities to contribute to energy generation from renewable or low carbon sources. They should:

•     have a positive strategy to promote energy from renewable and low carbon sources;

•     design their policies to maximise renewable and low carbon energy development while ensuring that adverse impacts are addressed satisfactorily, including cumulative landscape and visual impacts;

•     consider identifying suitable areas for renewable and low carbon energy sources, and supporting infrastructure, where this would help secure the development of such sources;

•     support community-led initiatives for renewable and low carbon energy, including developments outside such areas being taken forward through neighbourhood planning; and

•     identify opportunities where development can draw its energy supply from decentralised, renewable or low carbon energy supply systems and for co-locating potential heat customers and suppliers.

98.When determining planning applications, local planning authorities should:

•     not require applicants for energy development to demonstrate the overall need for renewable or low carbon energy and also recognise that even small-scale projects provide a valuable contribution to cutting greenhouse gas emissions; and

•     approve the application if its impacts are (or can be made) acceptable. Once suitable areas for renewable and low carbon energy have been identified in plans, local planning authorities should also expect subsequent applications for commercial scale projects outside these areas to demonstrate that the proposed location meets the criteria used in identifying suitable areas.

Overarching National Policy Statement for Energy (EN-1)

……..

Consideration of Combined Heat and Power (CHP)

….

4.6.6 Under guidelines issued by DECC (then DTI) in 2006, any application to develop a thermal generating station under Section 36 of the Electricity Act 1989 must either include CHP or contain evidence that the possibilities for CHP have been fully explored to inform the IPC's consideration of the application. This should be through an audit trail of dialogue between the applicant and prospective customers. The same principle applies to any thermal power station which is the subject of an application for development consent under the Planning Act 2008. The IPC should have regard to DECC's guidance, or any successor to it, when considering the CHP aspects of applications for thermal generating stations.

4.6.7 In developing proposals for new thermal generating stations, developers should consider the opportunities for CHP from the very earliest point and it should be adopted as a criterion when considering locations for a project. Given how important liaison with potential customers for heat is, applicants should not only consult those potential customers they have identified themselves but also bodies such as the Homes and Communities Agency (HCA), Local Enterprise Partnerships (LEPs) and Local Authorities and obtain their advice on opportunities for CHP. Further advice is contained in the 2006 DECC guidelines and applicants should also consider relevant information in regional and local energy and heat demand mapping.

4.6.8 Utilisation of useful heat that displaces conventional heat generation from fossil fuel sources is to be encouraged where, as will often be the case, it is more efficient than the alternative electricity/heat generation mix. To encourage proper consideration of CHP, substantial additional positive weight should therefore be given by the IPC to applications incorporating CHP. If the proposal is for thermal generation without CHP, the applicant should:

•     explain why CHP is not economically or practically feasible for example if there is a more energy efficient means of satisfying a nearby domestic heat demand;

•     provide details of any potential future heat requirements in the area that the station could meet; and

•     detail the provisions in the proposed scheme for ensuring any potential heat demand in the future can be exploited.

……………

5.14.2 Sustainable waste management is implemented through the "waste hierarchy", which sets out the priorities that must be applied when managing waste:

a) prevention;

b) preparing for reuse;

c) recycling;

d) other recovery, including energy recovery; and

e) disposal.

National Policy Statement for Renewable Energy Infrastructure (EN-3)

……..

2.5 Biomass and waste combustion

Introduction

2.5.1

The combustion of biomass…for electricity generation is likely to play an increasingly important role in meeting the UK's renewable energy targets.

2.5.2

The recovery of energy from the combustion of waste, where in accordance with the waste hierarchy8, will play an increasingly important role in meeting the UK's energy needs. Where the waste burned is deemed renewable, this can also contribute to meeting the UK's renewable energy targets. Further, the recovery of energy from the combustion of waste forms an important element of waste management strategies in both England and Wales.

………..

Fuels

2.5.5

Biomass is material of recent biological origin derived from plant or animal matter. The biomass used for heat and power usually falls into one or more of three categories:

•     biomass sourced from conventional forestry management. This includes thinning, felling and coppicing of sustainably managed forests, parklands and trees from other green spaces. It also includes sawmill residues (often processed to produce wood pellets), other wood processing residues and parts of trees unsuitable for the timber industry;

•     biomass from agricultural crops and residues. This includes crops grown primarily for use in energy generation ('energy crops'), 'woody' energy crops such as short rotation coppice (SRC), or miscanthus grass which can be grown on land unsuitable for food crops. Biomass can also be sourced from agricultural residues such as straw, husks and kernels; and

•     biomass from biodegradable waste and other similar materials including sewage sludge, animal manure, waste wood from construction, and food waste that would otherwise be disposed of in landfill.

2.5.6

The social, environmental and economic case for widespread deployment of bio-mass fuelled plant depends on the sustainability of fuel used in it…

2.5.7

Sustainability of the biomass or bioliquid fuel that a biomass or bioliquid -fuelled generating station will burn is a relevant and important consideration for the IPC in deciding on any development consent applications. The sustainability criteria under the RO will apply to both new and existing generating stations to the extent that they claim ROCs. The ROCs regime (and any successor to it) is a critical element in the business case of most biomass and bioliquid plants, so that in any given case the incentive effect of linking the award of ROCs or other financial assistance to the satisfaction of sustainability criteria may constitute an entirely adequate control on the sustainability of a plant's fuel sources. However, it is possible that the incentive of ROCs may not be available for the whole of a plant's operational life, and it is also possible in principle that plants may be able to operate profitably without them at certain periods. The IPC should therefore consider in each case whether it is appropriate to rely on the RO or any successor incentive regime to ensure the sustainability of a plant's fuel over its whole life. The IPC should not grant consent to a proposed biomass or bioliquid- fuelled generating station unless it is satisfied that the operator will (so far as it can reasonably be expected to do so) ensure that the biomass or bioliquid fuel it burns meets applicable RO or successor incentive regime sustainability criteria, whether or not ROCs (or successor incentives) are being claimed. Where appropriate, the IPC may include a requirement to this effect in the development consent order.

……………..

Biomass/Waste Impacts – Waste management

Introduction

……….

2.5.64

National, local and municipal strategies in England and Wales provide policy expectations for waste management at these different geographical levels. Local authorities will be responsible for providing an informative framework for the amount of waste management capacity sought. Information on the type of wastes arising and those that are combustible may also be provided. In Wales, the relevant regional waste plan will set out the strategy for dealing with waste generated in that region and include waste targets.

2.5.65

National, local and municipal strategies in England and Wales provide policy expectations for waste management at these different geographical levels. Local authorities will be responsible for providing an informative framework for the amount of waste management capacity sought. Information on the type of wastes arising and those that are combustible may also be provided …

Applicant's assessment

2.5.66

An assessment of the proposed waste combustion generating station should be undertaken that examines the conformity of the scheme with the waste hierarchy and the effect of the scheme on the relevant waste plan or plans where a proposal is likely to involve more than one local authority.

2.5.69

The results of the assessment of the conformity with the waste hierarchy and the effect on relevant waste plans should be presented in a separate document to accompany the application to the IPC.

IPC decision making

2.5.70

The IPC should be satisfied, with reference to the relevant waste strategies and plans, that the proposed waste combustion generating station is in accordance with the waste hierarchy and of an appropriate type and scale so as not to prejudice the achievement of local or national waste management targets in England and local, regional or national waste management targets in Wales. Where there are concerns in terms of a possible conflict, evidence should be provided to the IPC by the applicant as to why this is not the case or why a deviation from the relevant waste strategy or plan is nonetheless appropriate and in accordance with the waste hierarchy.

Appendix II

Extracts from Statement of Common Ground for the Proposed Development

Development Overview

4.1 The application seeks full planning permission for the development of a 20 MW Biomass fuelled, power plant known as Barton Renewable Energy Plant ("BREP"). BREP would be capable of producing renewable electricity to be exported to the local electricity grid and renewable heat which could potentially be exported to local commerce, industry and development…

5. Background to the Appeal

…………

Additional Material Submitted

5.3 Post submission, the applicant provided a wide range of additional information to support the application which can be summarised as follows:

………

•    Applicant's response to consultation responses received to date (submitted 25 February 2011) comprising:

- Supplementary Report providing clarification on a number of general matters raised by consultees including the developments compliance with the Draft Greater Manchester Joint Waste DPD and how heat may be captured and utilised…

…..

7. Government Policy on Energy Infrastructure

7.1 The following section of this statement provides an overview of relevant policy and guidance relating to the extent of biomass potential within the UK and North West

Renewable Energy and Climate Change

7.2 There is a national drive to increase the proportion of our energy and heat demand met through the use of renewable fuels and to reduce greenhouse gas emissions….

………..

UK Biomass Strategy (2007)

………..

7.9 Whilst biomass is only just emerging as a realistic means of delivering clean, renewable heat and energy in the UK, the Strategy actively encourages the development of biomass plants to enable this market to grow. The Strategy recognises that demand for biomass fuel will stimulate and increase in its supply and availability opening up supply lines which are currently not well developed. Consequently this will enable the biomass market to develop further, maximising its ability to contribute to meeting international targets and Government objectives relating to carbon emissions and renewable energy generations.

…………….

Government Policy on Energy

Overarching National Policy Statement for Energy (EN-1) (July 2011)

…………..

7.27 To this end, the NPSE identifies an urgent need to act now in order to deliver a substantial increase in renewable energy capacity ……

………

National Policy Statement for Renewable Energy Infrastructure (EN – 3)

……..

7.31 It is recognised that:

……..

•    There is a significant national urgency to reduce carbon emissions released through energy generation and increase the proportion of heat and energy generated through renewable sources.

…….

8. Planning Policy Context

…….

Regional Spacial Strategy (September 2008)

8.8 The most pertinent policies within RSS applicable are summarised below.

8.9 Policy EM10 promotes the provision of sustainable new waste management infrastructure, facilities and systems that contribute to the development of the North West by reducing harm to the environment (including reducing impacts on climate change), improving the efficiency of resources, stimulating investment and maximising economic opportunities.

8.10 Policy EM11 states that every effort should be made to minimise waste, maximise reuse, and maximise opportunities for the use of recycled materials. Such residual waste as does arise should be managed at the highest practicable level in the Government's waste hierarchy while policy EM12 encourages municipal, commercial and industrial waste should be disposed of locally in one nearest appropriate installation.

8.11 Policy EM15 establishes the principals which will guide the processes of planning for sustainable energy production and consumption. These are:

•    Minimised demand for energy and cut unnecessary use;

•    Energy used to be as efficient as possible;

•    Renewable energy to be used and renewable sources developed;

•    Continuing use of fossil and other fuels to be clean and efficient for heating and combined heat and power.

8.12 The appeal proposals are compliant with the above RSS Policies.

………

Trafford Core Strategy

………

The Vision and Strategic Objectives

……….

8.27 The Core Strategy sets out a series of Strategic Objectives that provide the framework for its policies and apply to the whole borough. It is agreed that the most pertinent Strategic Objective relating to the appeal proposals is SO7 (securing sustainable development) which seeks to promote the reuse of resources, the principals of sustainable construction and the use of new technologies combat to climate change to minimise impact of all new development on the environment.

………

L5 – Climate Change

………

8.38 It is agreed that the appeal proposals would contribute to the supply of renewable energy and contribute towards the Borough's carbon reduction targets.

………

Greater Manchester Joint Waste Development Plan Document

………

8.53 The Plan also sets out a number of development management policies that will be used to assess planning applications for waste management. Policy 8 expects waste management facilities which propose energy from waste fired technologies to have the potential to provide combined heat and power (unless it is proved to be unfeasible).

APPENDIX III

Whether The Proposal Would Be Sustainable Development?

53. Questions were raised in TBC's evidence and by objectors over the sustainability and security of waste wood supplies which were envisaged in the Planning Statement to contribute 70% of the fuel supplies for the BREP. It was argued that the latest available statistics published by Defra: Wood waste landfill restrictions in England – Call for evidence (CD80) indicate a finite and diminishing supply of suitable waste wood available in the region to support such a facility and other similar proposed facilities, including the Appellant's permitted scheme at Ince Marshes.
54. It is further suggested by TBC and BCAG that without a guaranteed and demonstrable supply of waste wood, the proposal's sustainability claims are undermined and that the scheme would fail to comply with the principles of the waste hierarchy, thus breaching the requirements of CS Policy L.6, RSS Policy EM11 and the waste management principles underlying the GMJWDPD. The absence of any definite scheme to provide for CHP is also alleged to result in a conflict with Policy 8 of the GMJWDPD. It may also lead to a greater reliance on contaminated waste wood, resulting in a potential increase in harmful emissions, and imports of virgin waste wood which could contribute to de-forestation.
55. TBC contended that the Appellant's interpretation of waste wood data taken from the UK Biomass Strategy 2007 (CD73) and a 2009 WRAP Report 'Waste Wood Market in the UK' is flawed, particularly the statement that '4.6m tonnes of waste wood arisings are sent to landfill, 80% of which could be used to produce clean, renewable energy'

(CD5 table 3, page 42). TBC's witness considered that the 4.6 million tonnes figure refers to total waste wood arisings for 2007. Of these, some 1.4 million tonnes was assessed as clean solid wood, for which the report stated that very little is available for energy generation. The figure given in the report for waste wood arisings in the north-west region was 542,900 tonnes per annum (AW/1 para 132). If demand from the Appellant's proposed facility at Ince Marshes is taken into account, the two facilities would require 316,500 tonnes of waste wood, or 60% of wood waste arisings in the north-west.

56. A briefing report by Tolvik Consulting: 'The UK waste wood market' (CD81) estimates a potential supply of waste wood for 2010 of 4.3 mt, taking into account the effects of recession and improved supply chain resource efficiency. Tolvik suggests an overall recovery rate of 74%, or 3.2 mt, including 0.55 mt going to biomass energy. On the basis, waste wood not currently recovered, and possibly finding its way to landfill, would be a maximum of 1.1 mt. Tolvik concludes that there is little scope for enhancing the recovery of wood waste, as landfill tax already operates as a strong incentive to divert wood waste from landfill. They concluded that the maximum potential additional supply of waste wood, based on 2010 arisings data, is about 0.5 mt.
57. A more recent WRAP report covering the period 2007 – 2010, reports that wood waste arisings have fallen to 4.1 million tonnes.
58. Defra has published the 'Government review of waste policy in England 2011' (CD77). It indicates that substantial tonnages of wood waste still end up in landfill and stated that it would undertake consultation on introducing a restriction on the landfilling of wood waste. A review of research suggested that approximately 0.6 million tonnes of wood waste goes to landfill.
59. This review of developments in the supply and composition of waste wood for biomass-fuelled generation indicates that the supply situation is unlikely to be as clear cut as indicated in the Planning Statements supporting the application. It would not be in accordance with the waste hierarchy if incineration were to divert substantial quantities of clean waste wood which would otherwise be capable of being re-used. National and local policy as well as market and sustainability considerations, also require that waste management should as far as possible be undertaken locally, avoiding the need for waste wood to be brought in from other regions. There are uncertainties over the future availability of virgin wood waste suitable for incineration.
60. Set against this, it is recognised that the market for lower grade wood waste is poorly developed, and there is some evidence that a proportion of construction waste is buried or burnt on site, thus avoiding landfill charges but creating local contamination. The Defra Call for Evidence states that one possible effect of introducing a restriction for waste wood is that it could 'help stimulate the development of alternative waste management infrastructure and generate market certainty around availability of materials. New measures to restrict the landfilling of wood waste may help to generate a reliable source of sufficient material to drive the market forward for recycling or energy recovery options.' (CD 80 para 12).
61. Para 11 also draws attention to the Defra waste hierarchy guidance that 'with wood there can be a valid reason to deviate from the waste hierarchy. With low grade wood .. energy recovery options appear more suitable than recycling.'
62. A degree of uncertainty is inevitable in a period of rapid transition for electricity generation to achieve the objectives of decarbonisation and security of supply. While there may come a time when installed capacity for dedicated energy recovery from waste wood and biomass exceeds sustainable sources of fuel supply, the evidence currently available is not sufficient to conclude that such capacity already exceeds supply, or that waste which might be processed higher up the hierarchy is likely to be diverted to energy recovery.
63. Availability of subsidy for renewable energy generation may also be relevant to the economic viability of the proposal. Where subsidy is required to support viability, operators must be able to demonstrate that fuel sources are sustainable. Investors will only invest if there is a prospect of sustainable supplies of fuel over the projected lifetime of the plant, and reasonable certainty of obtaining a price for the electricity generated which gives a reasonable return, with or without subsidy through the Renewable Obligation system or its successors. The government is reviewing the subsidy regime, and it is possible that limits will be placed on the capacity of new biomass dedicated plant which is eligible for subsidy. A decision to construct the plant would have to take account of these factors, the availability of sustainable fuel supplies and the market for renewable energy at the time.
64. I acknowledge that assessment of waste wood availability in the region appears to have declined significantly since the planning application and supporting evidence was submitted. It is now less clear cut that there would be a ready supply of suitable waste wood that would otherwise go to landfill to fuel the plant. This may in part be attributable to the prolonged economic recession and associated decline in construction and demolition activity. It may also reflect that a more favourable climate for recycling and reuse of waste wood is emerging in response to increases in landfill tax. While the new evidence of waste wood arisings is a material consideration when considering the sustainability of the appeal proposal, it is published in the context of a call for evidence on the appropriateness of a ban on the landfilling of waste wood. It cannot be regarded as providing definitive evidence as to the future availability or otherwise of suitable waste wood for energy recovery either nationally or in the north-west region. A call for evidence is in part an indication that the existing evidence base is deficient. This is acknowledged in terms on the executive summary (CD 80, page 1): 'The data on wood waste, particularly on the amount going to landfill or informal markets, is not clear.'
65. Whilst this is clearly a matter that affects the public perception of the scheme, the evidence is insufficient to show that existing generating capacity exceeds the likely supply of suitable sustainable waste wood. There may well be substantial capacity in the pipeline which, if built and commissioned, would alter the balance of the argument. However that is a matter of speculation rather than evidence. There is no certainty that planned capacity will materialise. In the circumstances, I attach greater weight to the strong support expressed in national and local policy for a development which has the potential to contribute to renewable energy capacity, and the related benefits of security and diversity of supply.
66. TBC's witnesses and others also identified a possible compliance issue in respect of the Greater Manchester Joint Waste Development Plan Document (GMJWDPD), adopted in April 2012. Policy 8 expects EfW facilities to have the potential to provide combined heat and power (CHP), unless it is proved to be unfeasible. While the Appellant has had discussions with potential users of waste heat, no feasibility report was before the Inquiry.
67. It is true that the climate change benefits of the scheme would be greater if CHP had been designed as an integral part of the scheme. Ideally a demand for process heat would ensure that there was a constant demand throughout the year, as opposed to seasonal space heating. The EP does require that facilities for taking low pressure steam from the plant would be provided, but there are no specific proposals. However the proposed plant would be well-located near to substantial areas of existing and proposed development in the Trafford Park area. While I do not accept that commercial confidentiality is a serious obstacle to the ability to provide a feasibility report, I acknowledge the difficulty of securing commitments from potential users at this stage. As the location offers the prospect for use of heat from the generation of electricity, I do not consider that lack of specific proposals for CHP should stand in the way of granting planning permission. The location accords well with the requirement in paragraph 97 of the Framework, to identify opportunities for co-locating potential heat customers and suppliers.
68. Meanwhile the Government's planning policies offer strong support for an increase in generating capacity from renewable sources. I acknowledge that the questions raised in respect of wood waste supplies are relevant to the determination of the appeal. However, given the inevitable uncertainties in relation to the evidence base, I do not consider that they outweigh development plan support for the scheme. The Greater Manchester Geological Unit (GMGU), which provides advice to local authorities in the Greater Manchester area, and is responsible for the preparation of the waste DPD and commenting on planning applications, expressed no concerns in this regard during determination of the application, or subsequently.
69. I therefore conclude that the proposal constitutes a sustainable form of development.

……………

Overall Conclusion

70. The foreword to the NPPF (the Framework) makes it clear that development that is sustainable should go ahead, without delay. The Introduction to the Framework goes on to say that applications for planning permission must be determined in accordance with the development plan, unless material considerations indicate otherwise. National policy statements form part of the overall framework of national planning policy, and are a material consideration in decisions on planning applications.
71. Paragraphs 97 and 98 are concerned with renewable energy, and advise that to help increase the use and supply of renewable and low carbon energy, local planning authorities should recognise the responsibility on all communities to contribute to energy generation from renewable or low carbon sources. Authorities should identify opportunities for co-locating potential heat customers and suppliers, not require applicants to demonstrate the overall need for renewable or low carbon energy, and should approve the application (unless material considerations indicate otherwise) if its impacts can be made acceptable.
72. Relevant statements of government policy are also set out in the Overarching National Policy Statement for Energy, July 2011 (EN-1) and the National Policy Statement for Renewable Energy Infrastructure (EN-3). Although these apply specifically to proposals for National Significant Infrastructure Development (NSID), the underlying principles are applicable to schemes which do not meet the thresholds. Moving towards a low carbon economy and achieving energy security are key objectives of Government policy. A significant increase in the UK's renewable energy capacity is a fundamental part of this response, with a need to provide resilience by ensuring diversity in the range of supply, as older plant comes to the end of its life. The advice confirms that biomass is a significant source of renewable and low carbon energy, as is energy produced from the bio-mass fraction of waste. Only waste that cannot be re-used or re-cycled and which would otherwise go to landfill should be used for energy recovery. Biomass-fuelled plant can help to deliver predictable, controllable electricity to complement more intermittent sources, such as wind power. EN-3 reaffirms the commitment to renewable energy infrastructure and the role of biomass energy, particularly schemes which combine heat and energy production.
73. At the time of the Inquiry the Regional Spatial Strategy for the North-West (RSS) remained part of the development plan and is to be accorded its full weight. Policy EM10 promotes the provision of sustainable new waste management infrastructure. Policy EM11 reflects the need to drive the management of waste up the waste hierarchy in accordance with PPG 10, and for waste to be dealt with locally in appropriate installations. Policy EM15 aims to ensure that energy use should be as efficient as possible and promotes the development of renewable sources. Policy EM10 sets a target for 20% of generation to be from renewable sources by 2020, and includes targets for biomass fuelled CHP/electricity schemes within the region. New renewable capacity should be developed with the aim of meeting or exceeding these targets. Support for renewable energy is also found in Policy EM17, which requires local authorities to give significant weight to the wider environmental, community and economic benefits of renewable energy proposals.
74. The only Policy referred to in the reasons for refusal is Policy WD5 of the Trafford UDP. It was a criteria based policy which sought to ensure that proposals for waste incinerators would be located within industrial areas well away from main residential areas, would not be unduly prominent, would not prejudice the regeneration of an area identified by the Council as being in need of investment, and would not prejudice existing industries, particularly food manufacturing and high technology activities. This has now been replaced by Policies in the GMJWDDP and it is accepted in the SoCG that it is no longer relevant to the determination of the appeal.
75. The UDP has been superseded by the Trafford CS, which was formally adopted in January 2012. CS Policy L5.12 recognises the role that renewable and decentralised energy generation and decentralised energy generation and distribution facilities can play in reducing CO² emissions and providing viable energy supply options.
76. CS Policy L 6 recognises the need for Trafford to make an appropriate contribution to meeting Manchester's waste management needs. L.6.2 (b) requires developers to demonstrate the proposal's consistency with the waste hierarchy. I acknowledge TBC's and BCAG's concerns about the availability of waste wood in the region. Nevertheless the available data is not conclusive, and the proposal would provide capacity for the generation of renewable energy which sits squarely within national energy policy. Market conditions for waste wood may affect viability, but that is not certain, and not a sufficient reason to refuse planning permission for development which is otherwise acceptable. L.6.3 states that the Council will have full regard to the environmental, social and economic impacts, including the regeneration of areas in need of investment. I have found that the air quality and health impacts would be acceptable, and there is no substantial evidence that the development would harm any area in need of regeneration. The proposal would not conflict with this policy.
77. With regard to the GMJWDDP, Policy 10 sets out criteria for the consideration of unallocated sites. The proposal accords broadly with the spatial strategy and would contribute to the aims and objectives of the plan, including diversion of waste from landfill. It meets the same criteria as allocated sites. The distance of some 500 metres from the nearest dwellings would not rule it out for consideration, the figure used for assessment purposes being some 250 metres. The GMGU, the organisation with responsibility for waste policy and advising on the policy implications of planning applications in the conurbation, did not identify any conflict with the policies of the GMJWDPD. With regard to Policy 8, I have concluded that the absence of firm proposals for CHP does not undermine overall compliance with the development plan. The Framework requirement for co-location with potential users is met by the location.
78. It is agreed in Para 8.38 of SoCG that the appeal proposals would contribute to the supply of renewable energy and contribute towards the Borough's carbon reduction targets. It would also accord with the waste hierarchy by diverting waste wood from landfill. These are matters to which I attach substantial weight.
79. In other respects the policies of the CS are supportive of the scheme, and no conflict with any other CS policy was identified. The same applies to the RSS. Notwithstanding the concerns which have been raised by TBC and BCAG, I consider that the proposal accords broadly with the development plan in respect of energy and waste management.
80. Planning law requires that applications should be determined in accordance with the development plan, unless material considerations indicate otherwise. My conclusions on health impacts are set out in paragraphs 577 - 582 above. I do not underestimate the genuine concerns and fears in connection with the impacts on air quality and health which have given rise to a perception of harm, and the effects on the community in terms of regeneration and confidence. However, I attach greater weight to the presumption in favour of sustainable development, and the need to approve development which accords with the development plan without delay.

Note 1   See Seddon Properties v Secretary of State for the Environment [1978] 42 P and CR 26.    [Back]

Note 2   See Tesco Stores Limited v Dundee CC [2012] UKSC 13; [2012] 2P and CR162 para 17, 18 and 19.    [Back]

Note 3   City of Edinburgh Council v Secretary of State for Scotland [1997] 1WLR 1447 at 1459.    [Back]

Note 4   [2013] EWCA Civ 9    [Back]

Note 5   The Cummins case at para 165.    [Back]

Note 6   [2000] EWHC 650     [Back]

Note 7   The City of Edinburgh case at page 1447.    [Back]

Note 8   The TW Logistics case at para 20    [Back]

Note 9   Gransden (E.C.) and Co Limited v Secretary of State for the Environment [1986] JPL 519.    [Back]

Note 10   Tesco v Secretary of State [1995] 1WLR 759, 770;Newsmith Stainless Limited v Secretary of State for the Environment and Regions ETR [2001] EWHC Admin 74.    [Back]

Note 11   See also AH v SSHD [2007] UKHL para 30.    [Back]

Note 12   Stewart v Secretary of State for the Environment and Vale Royal District Council [1991] 62 P and CR 135 at 147 – 148.    [Back]

Note 13   South Somerset DC v Secretary of State for the Environment [1993] 66 P and CR – paragraphs 83, 84 – 85.    [Back]

Note 14   South Bucks DC v Porter (No 2) [2004] 1WLR 1953     [Back]

Note 15   See R (Poole) v Secretary of State for Communities and Local Government [2008] EWHC 676 (Admin) paras 40 and 42; Halite Energy Group Limited v The Secretary of State for Energy and Climate Change [2014] EWHC 17 (Admin) para 86.    [Back]

Note 16   CS Policy L6.2b, GMJWDPD Objective 2 and policies 4 and 10, RS policy EM11, PPS10 paragraphs 1, 3 and 25 and Annex C, GM1 paragraph 5.14.2, EN3 paragraphs 2.5.2, 2.5.5, 2.5.7, 2.5.64, 2.5.66, 2.5.69 and 2.5.70.     [Back]

Note 17   CS policy L6.2b, GMJWDPD policies 4 and 10, PPS10 para 25, EN3 para 2.5.66.    [Back]

Note 18   CS policy L6.2b, GMJWDPD policies 4 and 10, EN3 paras 2.5.2 and 2.5.5 – 2.5.7.     [Back]

Note 19   IR 614.    [Back]

Note 20   IR24 – 30.    [Back]

Note 21   IR24.     [Back]

Note 22   IR29.    [Back]

Note 23   IR614 – 630; 654. He noted at IR614 D2’s supplementary planning statement as to there being a sufficient supply of waste wood to meet BREP’s demands “was not in question at the time the application was determined by TBC”; see also IR613 which records that C’s refusal reasons “do not question the potential of the development to contribute to sustainable energy needs or compliance with policy in this respect, nor with the broad conformity with the waste hierarchy as set out in PPG10. Nor is this mentioned in TBC’s statement of case.”    [Back]

Note 24   IR627.    [Back]

Note 25   At IR612 the Inspector recorded C’s officers’ opinion in support of this.     [Back]

Note 26   See IR656.    [Back]

Note 27   See also IR 233 – 234.    [Back]

Note 28   IR 614 – 620.    [Back]

Note 29   “It would not be in accordance with the waste hierarchy if incineration were to divert substantial quantities of clean waste wood which would otherwise be capable of being re-used.” (my underlining)    [Back]

Note 30   “…including diversion of waste from landfill …. It would also accord with the waste hierarchy by diverting waste wood from landfill….”    [Back]

Note 31   See also IR 627.    [Back]

Note 32   See also IR 626.    [Back]

Note 33   Policy 10 is the applicable policy the unallocated sites, of which this is one, but it refers back to Policy 4.    [Back]

Note 34   C relies on IR 627 and 630 in particular.    [Back]

Note 35   cf Skrytek v Secretary of State for Communities and Local Government [2013] EWCA Civ 1231 @para 28.     [Back]

Note 36   TW Logistics, Cummings and Ex parte Milne     [Back]

Note 37   There is no doubt that the Inspector does not mistakenly deal with evidence as to waste supplies as a matter affecting public perception of the scheme rather than as a matter of affecting the proposal’s compliance with the waste hierarchy, the development plan and National Policy. His reference to “public perception” which is picked up in DL 18 seems to come from C’s own closing submissions at para 29 where the requirement for the development to accord with the waste hierarchy, for it to be sustainable development, was said to have “important implications for the planning balance and public perception.”     [Back]

Note 38   IR 616.    [Back]

Note 39   cf Reasoned Justification 4.10 to Policy 8.    [Back]

Note 40   cf para 237 of the Government Review of Waste Policy in England 2011.    [Back]

Note 41   EN3 2.5.26 – 2.5.27 (also EN1 4.6.6 – 4.6.8)    [Back]

Note 42   See para 17 above of this judgment.    [Back]