England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		19 March 2015

The Deputy Judge (David Elvin QC):

Introduction

1. The Claimant Britaniacrest Recycling Ltd ("BRL") applies under s. 288 of the Town and Country Planning Act 1990 to quash the decision of the First Defendant's Inspector, Christina Downes, given by letter dated 1.10.14 ("the DL") in which she dismissed BRL's appeal made under s. 78 of the 1990 Act against Surrey County Council's ("the Council") refusal of planning permission on 8.8.13. The appeal related to an existing waste transfer and recycling facility at 24-26 Reigate Road, Hookwood, Surrey ("the Appeal Site") and sought permission for a new building as an extension to the existing tipping/waste reception shed and for laying down a concrete hardstanding. The extension to the current building was required for the Appeal Site to become compliant with BRL's current environmental permit. The Appeal Site lies within the countryside designated as Metropolitan Green Belt ("GB") between Horley and Reigate.
2. The first reason for refusal stated:

"The applicant has failed to demonstrate factors which either alone or in combination demonstrate 'very special circumstances' which clearly outweigh the harm to the Green Belt by virtue of the inappropriate nature of the development, harm to openness and any other harm, and therefore the proposal does not accord with the National Planning Policy Framework 2012, Policy CW6 - Development in the Green Belt of the Surrey Waste Plan 2008 and Reigate and Banstead Local Plan 2005 Policy CO1 - Setting and Maintenance of the Green Belt."

3. The appeal was determined by written representations procedure and the County Council submitted only its Officer's Report ("the OR") to the Inspector, albeit that it was very detailed and set out the Council's case at some length.
4. The Inspector described the Appeal Site and proposals at DL 2 and 3 in the following terms:

"2. The appeal site is within a countryside location between Horley and Reigate within the Metropolitan Green Belt (GB). It comprises about 3.6 hectares of land on the western side of the A217, Reigate Road. The site operates as a long established waste transfer and recycling facility and includes a large recycling and recovery building for construction waste, a two storey office building, vehicle maintenance workshop and an adjoining waste reception and tipping hall with a sorting area and down ramp on open ground in front. There are also various areas of stockpiled materials and areas of hardstanding. The site is surrounded by high planted bunds. Whilst previous planning permissions have imposed no restriction on the type or amount of waste that can be handled, the Environment Agency's Environmental Permit (EP) allows the acceptance of up to 250,000 tonnes per year of inert industrial, commercial and household waste.

3. The appeal proposal is for a new framed building that would replace the existing waste reception and tipping hall. It would allow the deposition and sorting of non-construction waste, which is currently mainly undertaken in the open, to be done within the building. This would be about 43 metres long, 31 metres wide and 11 metres high to the ridge. The Appellant has indicated that the building would not result in any change to the throughput of materials or additional vehicle movements. Its purpose is to improve the environmental and operational efficiency of the existing site."

5. The application was accompanied by a planning Supporting Statement, and Alternative Site Assessment and Transport Assessment. BRL accepted that its proposals were for inappropriate development in the GB and therefore had to demonstrate very special circumstances in order to obtain planning permission. In addition to supporting the matters summarised by the Inspector above, the materials discussed the application of the Surrey Waste Plan 2008 ("SWP") Policy CW6 in particular and contended for the existence very special circumstances. It is Policy CW6, and the Inspector's consideration of it, which is the focus of BRL's grounds of challenge. Other issues relating to transport and ecology were considered by the Inspector, but they are not relevant to the challenge.

SWP Policy CW6

6. Policy CW6 appears in Section 2.6 of the SWP, which is headed "Green Belt", and provides:

"Policy CW6: Development in the Green Belt

There will be a presumption against inappropriate waste related development in the Green Belt except in very special circumstances.

Very special circumstances to justify inappropriate development of waste management facilities in the Green Belt will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations.

The following considerations may contribute to very special circumstances:

(i) the lack of suitable non-Green Belt sites

(ii) the need to find locations well related to the source of waste arisings;

(iii) the characteristics of the site; and

(iv) the wider environmental and economic benefits of sustainable waste management, including the need for a range of sites."

7. BRL contended on appeal, as was also set out in its application documentation, that it was not necessary for it to demonstrate the it met all of points (i) to (iv) of CW6 in order to establish very special circumstances. It also contended that points (i) and (ii) were irrelevant here since the Appeal Site was an existing waste facility and the application did not propose any extension to the existing site area or to its operations and did not involve any change in the type, characteristics or quantities of materials handled on site. I will return to these issues which also form part of the grounds of challenge.

The Inspector's Decision

8. The Inspector found that the existing local plan was out-of-date since it was inconsistent with the current National Planning Policy Framework ("the Framework") at para. 89 (see para. 215 of the Framework) and therefore the Framework fell to be applied. Para. 89 provides:

"89. A local planning authority should regard the construction of new buildings as inappropriate in Green Belt. Exceptions to this are:

? buildings for agriculture and forestry;

? provision of appropriate facilities for outdoor sport, outdoor recreation and for cemeteries, as long as it preserves the openness of the Green Belt and does not conflict with the purposes of including land within it;

? the extension or alteration of a building provided that it does not result in disproportionate additions over and above the size of the original building;

? the replacement of a building, provided the new building is in the same use and not materially larger than the one it replaces;

? limited infilling in villages, and limited affordable housing for local community needs under policies set out in the Local Plan; or

? limited infilling or the partial or complete redevelopment of previously developed sites (brownfield land), whether redundant or in continuing use (excluding temporary buildings), which would not have a greater impact on the openness of the Green Belt and the purpose of including land within it than the existing development."

9. The Inspector therefore referred in DL 4 to the partial redevelopment of brownfield land "which would not have a greater impact on the openness of the GB and the purpose of including land within it than the existing development" as the relevant test to consider. That aspect of the Inspector's decision is agreed to correctly identify the issue.
10. At DL 5 to 8, the Inspector dealt with that issue and, having found at DL 5 that the proposed hardstanding would be policy compliant, turned to consider the new building:

"6. The new building on the other hand would be a structure of considerable scale and its footprint, height and bulk would greatly exceed the building that it would replace. Although it would also enclose the existing piles of materials waiting to be sorted and bulked in front of the existing tipping hall, these do not have the same permanence and do not cover the same extent of open ground as the building that is being proposed. It is acknowledged that the new building would not exceed the approved height of stockpiles on the site or the height of the existing materials recovery building. Nevertheless it would be a substantial addition to the built development on the site and would significantly diminish its open character. Openness is the main attribute of GB land.

7. In terms of the purposes of the GB it seems to me that because the building would be within the existing developed site, which is enclosed by tall landscaped bunds, there is little likelihood that GB purposes, including countryside encroachment, would be infringed.

8. Nevertheless, because there would be a material diminution in openness, the proposed scheme would be an inappropriate form of development. The framework indicates that such is, by definition, harmful to the GB and should not be approved except in very special circumstances. Such circumstances will not exist unless potential harm to the GB by reason of inappropriateness and any other harm is clearly outweighed by other considerations. It has been established in law that when considering "any other harm" this relates solely to GB harm. The harm in this case is through the inappropriate nature of the development and the loss of openness..."

11. Having concluded that the proposals for the new building would be inappropriate and per se harmful to the GB, the Inspector then addressed the question of very special circumstances. Although she referred in a footnote to the judgment of Patterson J. in Redhill Aerodrome v. Secretary of State for Communities and Local Government [2014] EWHC 2476 (Admin), subsequently reversed by the Court of Appeal [2015] 1 P. & C.R. 3, the parties agree that nothing turns on the differences between the High Court and Court of Appeal here.
12. The Inspector found that as an existing waste transfer facility, it accorded with SWP Policy WD2 but that there were other considerations in national and local policy due to its GB status.

"9. … Policy CW6 in the SWP indicates a presumption against inappropriate waste-related development in the GB except in very special circumstances. This is consistent with GB policy in the Framework, although no specific mention is made of waste-related development in that document. Policy CW6 includes a number of considerations that may contribute to very special circumstances. In terms of environmental and economic benefits the proposal would enable non-construction waste that is currently being processed in the open to be received, sorted and bulked up within a building. This would help reduce dust, noise and odour. The existing building was erected some years ago. Apart from being too small it is not of sufficient height to allow the necessary clearance for large machinery to operate within its confines. Conversely the proposed building would be of a sufficient height to allow these processes to take place. It seems to me reasonable to surmise that the building would result in a more efficient operation generally thus helping to increase rates of recycling and reduce the amount of waste that is diverted to landfill. This would meet objectives in the Waste Management Plan for England (December 2013). There would also be visual improvements by tidying site operations and placing them within a building that would integrate well with the other structures on the site in terms of its design and materials.

10. However Policy CW6 also indicates that other considerations are the lack of suitable non-Green Belt sites and the need to find locations well related to the source of the waste arisings. The supporting information indicates that there has been a steady increase in the amount of waste received and processed year on year…"

13. Having considered the data she continued –

"However the Appellant's Waste Arisings Report shows that a significant amount derives from places outside Surrey, including the south London Boroughs. That raises the question as to whether a building of the size proposed is justified on the appeal site and whether an alternative non-GB location could be found nearer to these more distant waste sources. The Appellant's Alternative Site Assessment does not seem to have adequately considered this possibility and I am unable to conclude that there are not more proximate and better located non-GB sites where the transfer of household waste could be undertaken in a more sustainable way.

11. The reliance on waste arisings from further afield is particularly relevant because Surrey County Council has indicated that it prefers to direct its kerbside collected household waste to its own sites in order to control costs and manage service delivery. Its site at Leatherhead has now been redeveloped and seems likely to be the preferred destination for the household waste from Mole Valley. The site at Earlswood would be the choice to receive household waste from Tandridge and Reigate and Banstead although this appears to be dependent on improvements that have yet to receive planning permission. Whilst this is also a GB site, the Appellant does not seem to have addressed the potential consequences of the market area changing if this were to happen. This gives even greater weight to the need for a robust analysis of alternative sites that are relevant to the whole market area, which includes land outside the GB."

14. The Inspector then noted at DL 12 that the existing environmental permit required that the transfer and bulking of all non-hazardous waste should take place within a building but noted that the Framework made clear that "the planning and permitting regimes operate separately" and added:

"In the absence of satisfactory information about alternative sites the Environmental Permit does not provide justification for the proposed building, and in particular a building of this size."

15. On the issue of very special circumstances, the Inspector concluded at DL 13:

"13. Drawing together the above points, there would be a number of benefits of the scheme but the failure to demonstrate that there are not more suitable non-GB sites to accommodate waste transfer needs in the market area is of overriding importance in this case. The harm that would be caused to the GB is not clearly outweighed by other considerations and in this case very special circumstances do not exist to justify the appeal scheme. The proposal does not comply with Policy CW6 in the SWP or GB policy in the Framework."

16. Having considered issues relating to transport and ecology, the Inspector found that they did not give rise to concerns and did not affect her overall conclusion with regard to the GB. She therefore dismissed the appeal.

Grounds of challenge

17. Mr Whale for BRL challenges the Inspector's decision on (originally) 6 grounds, which are resisted by Miss Blackmore for the Secretary of State:

(1) The Inspector wrongly took account of CW6 factors (i) and (ii) which were legally irrelevant;

(2) The Inspector wrongly interpreted CW6 on the basis that all four factors had to be demonstrated in order to give rise to very special circumstances;

(3) The Inspector wrongly failed to take into account CW6 factor (ii);

(4) The Inspector wrongly failed to take into account CW6 factor (iii);

(5) The Inspector was wrong to take account of the location of waste arisings and of market area changes; and

(6) Inadequate reasons.

18. At the hearing, Mr Whale did not proceed with ground (3) which appeared to me to be inconsistent with ground (1). He dealt with its substance in the context of ground (6).
19. I do not propose to repeat the well-established principles of law which apply to the consideration of decision letters and whether they reveal an error of law. See Seddon Properties v. Secretary of State (1981) 42 P & CR 26 and Lindblom J's more recent distillation of the applicable principles in Bloor Homes East Midlands Ltd. v. Secretary of State [2014] EWHC 754 (Admin) at [19]. Any further exposition by me of those principles will not improve them.
20. For reasons which will become clear, I propose to deal with the second ground first.

Ground (2) Did CW6 require all 4 factors to be satisfied?

21. Before dealing with the specific issues of factors (i) to (iv) it is helpful, and logical, to consider first the interpretation of CW6 and what it required. The interpretation of policy is a matter for the Court but the application of policy, properly understood, to the facts remains a matter for the judgment of the decision-maker: Tesco Stores Ltd. v. Dundee City Council [2012] PTSR 983 per Lord Reed especially at [17]-[19].
22. The context in which CW6 must be read is that "very special circumstances" is a concept deriving from long-standing national GB policy, currently found in the Framework at paras. 79-92. In particular, at paras. 87 and 88 it provides:

"87. As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.

88. When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. 'Very special circumstances' will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations."

23. What amounts to "very special circumstances" is (subject to Wednesbury) a matter for the decision-maker and clearly is sensitive to the circumstances of the individual case. Quite apart from policy, s. 70(2) of the 1990 Act requires that regard be had to other material considerations and s. 38(6) of the Planning & Compulsory Purchase Act 2004 directs consideration to the question of whether other material considerations justify the grant of permission if the proposals are in conflict with the development plan. Very special circumstances, which are a form of material considerations advanced to justify the grant of permission for inappropriate development in the GB in accordance with para. 88 of the Framework, have to be weighed against harm which, as Sullivan LJ held in Redhill at [21] and [32]:

"21. There is no dispute that the underlying purpose of the policy was, and still is, to protect the essential characteristic of the Green Belt – its openness – but there is nothing illogical in requiring all non-Green Belt factors, and not simply those non-Green Belt factors in favour of granting permission, to be taken into account when deciding whether planning permission should be granted on what will be non-Green Belt grounds (very special circumstances) for development that is, by definition, harmful to the Green Belt."

"32 The Framework does not purport to alter the statutory duty to have regard to "any other material consideration" when determining a planning application or appeal: see s. 70(2) of the Act. When deciding whether "material considerations indicate otherwise" the local planning authority or the Inspector on appeal will consider all of the material considerations, those which point in favour of granting permission, and those considerations which, in addition to the conflict with the development plan, point against the grant of permission. In the former category there may well be employment and economic considerations of the kind referred to in the Inspector's decision in the present case. If the proposed development would cause some, but not significant harm to biodiversity; some, but not substantial harm to the setting of a listed building; and some, but not severe harm in terms of its residual cumulative transport impact, those harmful impacts will fall within the "material considerations" which point against the grant of permission. The fact that a refusal of planning permission on biodiversity grounds, heritage grounds or transport grounds would not be justified does not mean that the harm to those interests would be ignored. The weight to be given to such harm would be a matter for the Inspector to decide in the light of the policies set out in the Framework, but it would not cease to be a "material consideration" merely because the threshold in the Framework for a refusal of planning permission on that particular ground was not crossed. The position is no different if development is proposed within the Green Belt, save that the "very special circumstances" test will be applied if the proposal is for inappropriate development in the Green Belt."

24. Since this is the underlying purpose of national policy which remains unchanged in the Framework, the factors in CW6 are factors which in my judgment are ones that may be included in an assessment of very special circumstances but which are not prescriptive of what may be considered. The list in CW6 is plainly intended to draw attention to what are specific issues in Surrey, but it does not purport to close the list of what may be considered nor does it prescribe how the factors are to be treated since they are consideration which "may contribute to very special circumstances". In my judgment, the policy highlights them as specific potential considerations but neither accords them specific priority or weight which it leaves to the judgment of the decision-maker.
25. The exercise of whether very special circumstances exist may include some or all of the CW6 considerations but, depending on the specific case, may include only some or none, possibly in addition to other factors. That appears to have been the approach of the Officers advising members at para. 208 of the OR, who viewed the considerations under CW6 as a whole:

"Officers do not consider that the factors submitted by the applicant judged cumulatively would constitute very special circumstances that clearly outweigh the harm to the Green Belt by reason of inappropriateness, harm to openness and any other harm, and that these do not justify the grant of planning permission. None of the factors identified in the application and listed under the four considerations above can, on its own, be considered to constitute very special circumstances and clearly outweigh the harm referred to above; but in combination they must do. Officers do not consider that these factors combined are such that very special circumstances have been demonstrated as required by SWP 2008 Policy CW6. Officers consider that the factors noted by the applicant do not clearly outweigh the harm resulting from the proposal, therefore an exception to Green Belt policy in the NPPF12, SWP 2008 Policy CW6 and Reigate & Banstead Policy CO1 should not be made and planning permission should be refused."

26. On that basis, I agree with Mr Whale's starting point that CW6 does not require all four considerations to be demonstrated for very special circumstances to be made out. This is not justified by the non-exclusive language of the policy nor by the fact that there may be other circumstances which are not included in the list. It would also be contrary to the statutory requirement to have regard to material considerations.
27. That is not to say, however, that all of the considerations in CW6 may not be viewed as a whole before reaching a conclusion on the application of the policy and the existence of very special circumstances or that they have to be considered in strict numerical order. It must always be recalled that the decision-maker has a wide judgment as to how the issues are approached and decisions are not to be subjected to "the analytical attention of a medieval schoolman" (per Forbes J. in R v. Bimingham City Council ex parte Sale (1984) 48 P. & C.R. 270, 284).
28. This ground therefore comes down to whether the Inspector erred as Mr Whale alleges. I do not read her discussion of CW6 in DL 9-13 as amounting to a view that all four considerations had to be met. Indeed, she said at DL 9 that "Policy CW6 includes a number of considerations that may contribute to very special circumstances". This, in my judgment, is a clear indication she was not reading CW6 as Mr Whale contends she did. I also do not consider, contrary to Mr Whale's submission, that a contrary conclusion can be inferred from her consideration of the issues.
29. It seems to me that in DL 9-13 what the Inspector was doing was considering all the potential range of factors which might bear on her decision as to whether there were very special circumstances. At DL 9 she broadly considered those factors in favour of the new building and at DL 10-11 she set out countervailing factors. At DL 12 she considered the question of what the environmental permit required and at DL 13 she drew together all the points in an overall assessment which led her to conclude in terms which reflect para. 88 of the Framework:

"The harm that would be caused to the GB is not clearly outweighed by other considerations and in this case very special circumstances do not exist to justify the appeal scheme. The proposal does not comply with Policy CW6 in the SWP or GB policy in the Framework."

30. The fact that meeting one of the considerations might be enough to give rise to very special circumstances would not of itself justify excluding consideration of all potentially relevant circumstances. The Inspector might not be convinced of the weight of that one consideration in the circumstances and might, perfectly reasonably, wish to consider all possible relevant factors together before reaching a conclusion. In my judgment, that is precisely what she did and I therefore reject this ground.

Ground (1) CW6 (i) and (ii)

31. Mr Whale submits that, consistently with BRL's appeal representations, (i) and (ii) did not arise because the facility at the Appeal Site was an existing facility which had been in that location for some years and was not proposed to change in terms of the essential characteristics of the operations carried on there. The proposal would not give rise to additional traffic apart from the short term construction phase. He says the Inspector wrongly took such matters into account in DL 10-13. He was at pains to point out that his criticism of the decision went to matters of legal relevance only and made no rationality challenge to the decision.
32. It appears to me clear that the Inspector did take the factors in CW6 (i) and (ii) into account, though she considered them together, since the opening and closing sentences of DL 10 seem to me to clearly reflect the considerations in (i) and (ii). The conclusion at the end of DL 10 clearly combines a view both as to the availability of non-GB sites and of sites which were well-related to waste arisings, since the Inspector found that there had not been adequate assessment of alternative sites such that she was -

"unable to conclude that there are not more proximate and better located non-GB sites where the transfer of household waste could be undertaken in a more sustainable way"

33. In my judgment, the Inspector was entitled to take into account the matters she did in DL 10-13 and that they were not pre-empted because the site was an existing one. I fail to see why when considering a new building, some 78% larger than that existing, which has already been found at DL 6 to "significantly diminish" the open character of the GB, it is not relevant to consider even with an existing waste site whether there are more suitable non-GB sites and ones which are well related to the sources of the waste arisings. I fail to see why a building which has such an effect on openness should not be subject to a consideration of whether there are non-GB sites which might better accommodate it.
34. Mr Whale accepted that it was a consequence of his argument that factors (i) and (ii) could not be raised in any case of an existing waste site where all that was proposed was new operational development on the same site and not a new waste use. That exposes further the fallacy of the argument since he accepted that an application for a similar building on a site without current waste use would be subject to consideration under CW6 (i) and (ii). That could only be the case because it was relevant to weigh the availability of an alternative non-GB site against the harm which would be caused to the GB by the new building. That reasoning seems to me also to apply to a new building on an existing waste site. To do otherwise would be to come dangerously close to accepting the proposition that a new building, of whatever adverse impact in GB terms, could not be refused permission even if there were available suitable alternatives, better located in terms of proximity to the waste.
35. I see no trace of any acceptance in CW6 or in the supporting text of any such a fundamental distinction between existing and new sites or between changes of use and operational development. Such a distinction would not in my judgment reflect the Framework which at para. 89 makes provision for some alternation and extension to buildings, but otherwise treats them as inappropriate development. Other than by assertion, it has not been demonstrated that the existence of a lawful waste site makes legally irrelevant (i.e. a non-material consideration) the availability of non-GB alternative sites which might avoid the harm to the GB an inappropriate new building would cause. To go back to basics, since a material consideration is one which is capable of affecting the use or development of land, it seems to me plain that the contested factors are material considerations and thus ones which the Inspector could lawfully consider.
36. The purpose of CW6, consistently with the Framework, is to protect the GB against inappropriate development, which purpose is not served by the construction Mr Whale urged me to accept. True it is that the existing use of the site, together with its operational and physical characteristics, would be relevant as part of the assessment of very special circumstances, probably under CW6 (iii) but that falls far short of justifying ruling out the consideration of non-GB alternatives.
37. Moreover, the identification of the four factors in CW6 does not presuppose what weight should to be attached to any of them in the specific context As the Inspector pointed out in DL 6 with regard to the proposed building the "footprint, height and bulk would greatly exceed the building that it would replace" (said to be some 78% larger in the OR, para. 18) and the mere fact that the site was an existing waste facility did not rule out consideration of whether there might be more appropriate sites which did not have the same impact on the GB. Indeed, that approach echoed the Council's case at paras. 188-208 of the OR.
38. While it was common ground that the Appeal Site accommodated an existing lawful waste use there was disagreement over whether the location was a sustainable one and whether the assessment of alternative sites had been sufficiently wide-ranging and robust given that a significant proportion of the waste came from outside Surrey. For example, at para. 67 the OR recorded from BRL's own Waste Arisings Assessment (June 2013) that of the 1.72 million tonnes of household waste in the Appeal Site's "service area", some 58.9% arose in southern London Boroughs and only 20.58% in Surrey. Of the waste coming to the Appeal Site, some 50% was shown by weighbridge data to be from outside Surrey (OR para. 91).
39. In that context, and given the capacity of the Appeal Site, the OR identified a possible shortfall in waste of 73,677.12 tonnes per annum (referred to in DL 10 as "about 73,700 tonnes"), potentially increasing to 108,264.12 tonnes per annum if the County Waste Disposal Authority ceased to tip there. That shortfall would have to be made up, possible from greater distances and from beyond Surrey.
40. These points, clearly set out in the Council's case, were reflected in the Inspector's reasoning in DL 10 where she noted:

"That raises the question as to whether a building of the size proposed is justified on the appeal site and whether an alternative non-GB location could be found nearer to these more distant waste sources. The Appellant's Alternative Site Assessment does not seem to have adequately considered this possibility and I am unable to conclude that there are not more proximate and better located non-GB sites where the transfer of household waste could be undertaken in a more sustainable way."

41. It seems to me plain that the Council's case raised issues of substance over the contention by BRL in its representations that it could show very special circumstances from the context of the existing lawful facility and the sustainability of the proposals. Those points were plainly controversial and relevant to the question of whether very special circumstances were demonstrated. As I have already considered, it is entirely consistent with the policy and with the role of very special circumstances (as indeed with material considerations) that they may be considered in combination when their relative weight can be judged and set against the GB harm which is found to arise.
42. It follows, in my judgment, that the Inspector was entitled to take into account the matters she did at DL 10-13 including matters falling within CW6 (i) and (ii).

Ground (4) CW6 (iii)

43. CW6 (iii) refers to "the characteristics of the site" and BRL's case on this was set out at paras. 6.15-6.16 of its Supporting Statement. These paragraphs listed several factors including the established nature of the facility, the improvement in "operational and environmental performance of the site", compliance with environmental permit requirements, the use of land already developed, the design of the building to enable vehicles to access and for machinery to operate within it and the improvement in "the appearance and coherence of the site itself" with minimum visibility or visual impact.
44. This aspect of BRL's case was not disputed by the Council except that it questioned the need for the scale of building to allow vehicles to turn within it since there was sufficient space on site for them to reverse into the building and that it considered that although the visual impact was not sufficiently significant to refuse permission it did have an effect on openness. See OR paras. 76, 96, 191, 200 and 201.
45. It is plain to me on a fair reading of the DL that factor (iii) was taken into account and considered by the Inspector at DL 9 and elsewhere. At DL 9 she began by noting that the building "would be associated with an existing waste transfer facility and in this respect it accords with Policy WD2 in the Surrey Waste Plan 2008" which is a clear acknowledgment of the status of the Appeal Site. Although she then proceeded to "other considerations" in policy terms including CW6 which, Mr Whale submits, means she did not consider the existing lawful operation on site in the CW6 context I find this to be wholly artificial since it was plainly in the Inspector's mind and the decision should be read as a whole and not subject to a schoolmasterly exegesis. The nature of the site is equally clear and acknowledged by the Inspector at DL 2, 3, 7 and 12. Indeed, DL 9 also makes clear that the Inspector did not consider that the fact the building would be located on an existing waste site was sufficient of itself to grant it permission without considering other factors.
46. At DL 9 the Inspector acknowledged the benefits of the proposal in terms of both environmental protection and visual improvements and that its greater efficiency would help increase rates of recycling in accordance with the waste hierarchy, diverting more waste from landfill. She also accepted that the building would allow for a more efficient operation and would make improvements in visual terms. This appears to me, as Miss Blackmore submitted, to be an acceptance of many of the CW6 (iii) points set out in paras. 6.15 and 6.16 of the Supporting Statement.
47. Mr Whale submits that DL 9 is dealing only with CW6 (iv), namely "the wider environmental and economic benefits of sustainable waste management, including the need for a range of sites". I disagree for the reasons I have already given. Moreover, the discussion in DL 12 of the need for a building to house the transfer and bulking of waste in accordance with the permit also picks up a point from para. 6.15 of the Supporting Statement, another CW6 (iii) point. It is a matter for the Inspector how she ordered her consideration of the appeal and I do not think she can properly be criticised for not dealing with the points under CW6 (iii) at a single point in the decision.
48. In my view, unless the Court were to adopt a pedantic approach which required an Inspector to address policy issues in a particular numerical order, and separately, which it does not, it is reasonable for factors (iii) and (iv) to be dealt with together provided the substance of the points was considered. Here, factors (iii) and (iv) were dealt with together in DL 9 and what was stated by the Inspector makes it clear that she was considering factors under (iii) as well as (iv). Moreover, it could not reasonably be maintained that the Inspector was not well aware that the Appeal Site lawfully operated as a waste facility. That it not only implicit in the discussion of the improvements in DL 9 but is made explicit in DL 2, 3, 7 and 12. Compliance with the environmental permit is dealt with in DL 11. The complaint by Mr Whale is that the Inspector failed to consider such matters and not that her consideration of them was flawed. I reject this ground of challenge.

(5) Arisings and market change

49. Mr Whale criticised the Inspector's consideration in DL 11 of waste arisings "from further afield" for several reasons in his skeleton argument. However, in oral argument he restricted his submissions to the proposition that the Inspector's reliance on the Earlswood site was irrelevant given that it was dependent on improvements that have yet to receive planning permission and that household waste comprised only 17.4% and 6.7%, respectively, of Tandridge District Council's and Reigate & Banstead Borough Council's waste in 2011-12 and that it was also a GB site.
50. I agree with Miss Blackmore that the points in DL 11 go to the Inspector's point that BRL did not carry out a satisfactory alternative sites assessment because it did not properly grapple with the source of waste arisings beyond Surrey and the potential for other, non-GB sites which were better related to them. That judgment is not in any event challenged on Wednesbury grounds. In any event, there is no evidence that the Inspector misunderstood the figures with regard to the sources of waste, which included updated figures from the Environment Agency, or their significance. The location of the Appeal Site on the strategic road network does not alter her criticism which is that the assessment failed to consider the prospect of more appropriate sites further afield. The point the Inspector made at DL 11 was an acceptance of the Council's concern that there was a shortfall of sources of waste in Surrey which might go to the Appeal Site and that this shortfall might increase if Earlswood were approved -

"This gives even greater weight to the need for a robust analysis of alternative sites that are relevant to the whole market area, which includes land outside the GB."

51. The Inspector was well aware, and acknowledged at DL 11, that Earlswood had yet to receive permission and was also a GB site. The point she was making, as had the Council, was that there was potential for the waste market to change and to increase the shortfall which reinforced the concerns regarding the alternatives assessment generally. In such circumstances, she was not required to place an estimate on the prospects of the Earlswood site receiving permission since her concern was that it represented a potential increase in an existing shortfall of Surrey waste arisings going to the Appeal Site and thus underlined the shortcomings of the Alternative Sites Assessment.
52. Mr Whale complained, by reference to the Alternative Sites Assessment itself that the purpose of that assessment was (as the Assessment itself stated in its Introduction) "to consider the availability of suitable non-Green Belt sites for the proposed development." It was therefore wrong, he said, for the Inspector to criticise it by reference to considerations of proximity to waste arisings since that had not been the purpose of the Assessment.
53. That argument is untenable for two reasons: first, it is plainly a matter for the Inspector to reach her own conclusion as to the appropriateness of such an assessment on the evidence and in the development plan policy context, regardless of whether the assessment had sought to limit its own scope. Secondly, and tellingly, the Council had given ample warning to BRL in 2013 that it considered the assessment to be inadequate. This was recorded in the OR at para. 81:

"81. Officers responded to the submitted ASA on 20 May 2013 noting that in order to consider sites allocated in the Surrey Waste Plan 2008, SLR Consulting had simply submitted an assessment report produced by consultants ERM for the preparation of the Surrey Waste Plan. The ERM report was noted by Officers to be considerably out of date as it assessed the Britaniacrest site in 2005/2006 and referred to the site handling just 130,000 tpa whereas it is now proposed to handle 250,000 tpa. Officers also noted that the nearby Earlswood Depot was assessed by ERM in 2005/2006. Given the comments above from the County WDA, Officers judge that the future development of Earlswood Depot would be a material consideration in any assessment of alternative sites."

54. BRL may not therefore fairly complain to this Court of a matter of which it had been put on notice and which it chose to deal with, not by revising its assessment, but by seeking to persuade, first, the Council and, then, the Inspector that such considerations were irrelevant to an existing waste site.
55. I was told this morning that, following yesterday's hearing, it had been brought to the parties' attention that planning permission has now been granted for the Earlswood site, though the date of this was not known and it had not in any event been brought to the Inspector's attention if indeed it had been issued by that date. The lawfulness of her decision is to be determined by reference to the date it was issued though the subsequent grant of permission might have been relevant to the exercise of the court's discretion had I found this ground to be well-founded, which I do not.
56. I reject this ground also.

(6) Reasons

57. Mr Whale's final ground is that even if he is wrong on the other grounds, then the Inspector's reasoning was inadequate applying the approach set out by Lord Brown in South Bucks DC v. Porter (No.2) [2004] 1 WLR 1953 at [36]. I emphasise, as did he, that a decision is "addressed to parties well aware of the issues involved and the arguments advanced".
58. I find it useful to remind myself what the then Sir Thomas Bingham MR stated in his extempore judgment in Clarke Homes Ltd. v. Secretary of State (1993) 66 P&CR 263 at 271-2 (quoted with approval by Lord Brown in South Bucks at [33]):

"There are dangers in over-simplifying issues of this kind as also of over-complicating them. I hope I am not over-simplifying unduly by suggesting that the central issue in this case is whether the decision of the Secretary of State leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved as the parties agree on a straightforward down-to-earth reading of his decision letter without excessive legalism or exegetical sophistication."

59. It will be clear from my discussion of the other grounds of challenge that I consider the Inspector's decision on the issues to have been clear and thorough, read as it must be in the context that it was addressed to the parties who were familiar with their respective cases. In my judgment, there is no genuine doubt either as to what the Inspector decided on the principal important controversial issues or why she reached her decision.

Conclusion

60. The application is therefore dismissed.
61. MISS BLACKMORE: My Lord, there is an application for costs. I hope the cost schedule has reached the court.
62. THE DEPUTY JUDGE: I have it electronically, yes.
63. Do you take any issue with the principle, Mr Dale-Harris, or with the quantum?
64. MR DALE-HARRIS: My Lord, no issue with the principle. The only point made about the quantum is that the hearing did not run to six hours, which is the estimated time within the schedule. My Lord, I understand it ran about two hours yesterday and then perhaps an hour today. So, in my submission, three hours would be the appropriate time both for solicitor's fees and for fees of counsel.
65. THE DEPUTY JUDGE: So what are you saying I should award? What figure do you put on it?
66. MR DALE-HARRIS: My Lord, there is a reduction and I make it to be a £640 reduction globally. That constitutes £160 reduction on counsel's fees for the hearing, which is the penultimate page.
67. THE DEPUTY JUDGE: Just give me the global figure?
68. MR DALE-HARRIS: The global figure, my Lord, is £5,449.
69. THE DEPUTY JUDGE: Miss Blackmore?
70. MISS BLACKMORE: My Lord, it is right that the hearing yesterday was shorter than was estimated but there are two points that I would say in response to that. The first is that there was no estimate given for waiting time in the costs schedule and, secondly, that there has, of course, been the further hearing this morning to take judgment when it was estimated at an one day hearing and there were discussions yesterday between the parties about costs and the other consequential matters. The Secretary of State's costs now, in fact, stand at £6,553.
71. THE DEPUTY JUDGE: Yes. Is that your time for yesterday, your solicitor's time for yesterday and today?
72. MISS BLACKMORE: And including a provision for this morning, yes. It allows for a deduction for the length of the hearing in terms of what it actually took but then there was an estimate made for the hearing this morning and time that was taken up yesterday and, indeed, this morning on this matter.
73. THE DEPUTY JUDGE: Mr Dale-Harris, were you aware that the figure had been amended?
74. MR DALE-HARRIS: My Lord, I was not aware of the extra provision.
75. THE DEPUTY JUDGE: Miss Blackmore says that £6,553 deducts the time not spent in court yesterday but adds in time spent on the issue of costs and then this morning.
76. MR DALE-HARRIS: My Lord, I do not object to the principle of that. I have not had sight of it.
77. THE DEPUTY JUDGE: Very well. In that event it seems reasonable and proper for me to award the Secretary of State the costs of the application to be paid by the claimant, which I assess in the sum of £6,553. Anything else?
78. MR DALE-HARRIS: My Lord, I am instructed to ask for permission to appeal.
79. THE DEPUTY JUDGE: Reasons?
80. MR DALE-HARRIS: The reasons are the arguments set out in the skeleton argument, my Lord.
81. THE DEPUTY JUDGE: Miss Blackmore, I do not need to trouble you.
82. Mr Dale-Harris, I refuse permission to appeal. It seems to me there are not significant prospects of success and, indeed, if I might observe, had this been a case which had come to the court under the provisions which will come into force in due course requiring permission I would not have granted this case permission to bring judicial review. It is right that I should record that view. Despite Mr Whale's valiant efforts it will be clear from my judgment that I found all of the grounds to be wholly unconvincing. Secondly, there is no other good reason why permission to appeal should be granted and, therefore, I will not grant permission to appeal and you must ask the Court of Appeal.
83. MR DALE-HARRIS: I am grateful, my Lord.
84. THE DEPUTY JUDGE: I am grateful to you both for attending this morning.