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
		10 July 2015

Mrs Justice Lang:

Introduction

1. The Claimant applies under section 288 of the Town and Country Planning Act 1990 ("TCPA 1990") to quash the decision of the First Defendant, dated 16 January 2015, to grant planning permission to the Second Defendant for an Energy from Waste ("EfW") facility on land at Javelin Park, near Haresfield, Gloucestershire ("the Appeal Site").
2. The Third Defendant refused planning permission on 10 April 2013. The Second Defendant appealed against the refusal of planning permission. On 16 July 2013, the appeal was recovered for the First Defendant's determination pursuant to section 79 of, and paragraph 3 of schedule 6 to, the TCPA 1990 because the appeal involved proposals of major significance for energy policies.
3. An Inspector (Mr Brian Cook) was appointed by the First Defendant, and he conducted a public local inquiry. The Inspector's Report ("IR"), dated 6 June 2014, recommended that the appeal be allowed and planning permission be granted, subject to conditions.
4. In his amended Decision Letter ("DL") dated 16 January 2015, the First Defendant agreed with the Inspector's main recommendations and allowed the appeal. Planning permission, with conditions, was granted for an EfW facility for the combustion of non-hazardous waste and the generation of energy, comprising the main EfW facility, a bottom ash processing facility and education/visitor centre, together with ancillary infrastructure, including access roads, weighbridges, fencing/gates, lighting, emission stack, surface water drainage basins and landscaping, in accordance with the application dated 31 January 2012.

The Claimant's grounds

5. The Claimant submitted that the First Defendant erred in his interpretation of the Gloucestershire Waste Core Strategy ("WCS") (Policy WCS6 and Appendix 5) when he concluded that objections on grounds of height and scale could not be considered as the site had been allocated in the WCS and the proposal was within the parameters of the guidance underpinning the policy. He repeated the error made by the Inspector, who was unduly influenced by his earlier role as Inspector examining the WCS. The consequence of the misinterpretation of the WCS was that the First Defendant and the Inspector failed to have proper regard to the evidence of the Claimant and the Third Defendant on the vital issues of height and scale.
6. The First and Second Defendants submitted, in response, that the First Defendant had correctly interpreted the WCS, and so had the Inspector. Policy WCS6 allocated this site for "strategic residual recovery facilities (> 50,000 tonnes/year)". Policy WCS6 did not impose height and scale restrictions, and the objectors' attempts to do so were contrary to the "in principle" approval of planning permission for a strategic waste facility at this site. However, the WCS did require any proposed development to be assessed against development criteria set out in the policy, which included the impact on the landscape and the design. In assessing the proposal against these criteria, the First Defendant and the Inspector did take the evidence as to height and scale into account.
7. The Claimant had failed to establish that the Inspector's previous role in the WCS examination improperly affected his approach to the interpretation of the WCS. In any event, the decision was taken by the First Defendant, not the Inspector.
8. In the alternative, the First and Second Defendants submitted that, even if the First Defendant and/or the Inspector did fall into error, as alleged by the Claimant, any re-determination would again result in the grant of planning permission, because the landscape and visual impacts of the development were found to be acceptable.
9. The Claimant submitted that these errors were fundamental to the appeal and there was a real possibility that consideration on a correct basis could or would have made a difference to the decision. Therefore the decision ought to be quashed.

Legal framework

10. Under section 288 TCPA 1990, a person aggrieved may apply to quash a decision on the grounds that (a) it is not within the powers of the Act; or (b) any of the relevant requirements have not been complied with and in consequence, the interests of the applicant have been substantially prejudiced.
11. The general principles of judicial review are applicable to a challenge under section 288 TCPA 1990. Thus, the Claimant must establish that the decision-maker misdirected himself in law or acted irrationally or failed to have regard to relevant considerations or that there was some procedural impropriety.
12. The exercise of planning judgment and the weighing of the various issues are matters for the decision-maker and not for the Court: Seddon Properties v Secretary of State for the Environment (1978) 42 P &CR 26. As Sullivan J. said in Newsmith v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74, at [6]:

"An application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision."

13. The determination of an application for planning permission is to be made in accordance with the development plan, unless material considerations indicate otherwise: section 38(6) of the Planning and Compulsory Purchase Act 2004, read together with section 70(2) TCPA 1990.
14. In Tesco Stores Limited v Dundee City Council [2012] UKSC 13, Lord Reed (with whose judgment Lord Brown, Lord Hope, Lord Kerr and Lord Dyson agreed) said, at [17]:

"It has long been established that a planning authority must proceed upon a proper understanding of the development plan: see, for example, Gransden & Co Ltd v Secretary of State for the Environment (1985) 54 P & CR 86, 94 per Woolf J, affd (1986) 54 P & CR 361; Horsham DC v Secretary of State for the Environment (1991) 63 P & CR 2319, 225-226 per Nolan LJ. The need for a proper understanding follows, in the first place, from the fact that the planning authority is required by statute to have regard to the provisions of the development plan: it cannot have regard to the provisions of the plan if it fails to understand them. It also follows from the legal status given to the development plan by section 25 of the 1997 Act. The effect of the predecessor of section 25, namely section 18A of the Town and Country (Planning) Scotland Act 1972 (as inserted by section 58 of the Planning and Compensation Act 1991), was considered by the House of Lords in the case of City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33, [1997] 1 WLR 1447. It is sufficient for present purposes to cite a passage from the speech of Lord Clyde, with whom the other members of the House expressed their agreement. At p.44, 1459, his lordship observed:

"In the practical application of sec. 18A it will obviously be necessary for the decision-maker to consider the development plan, identify any provisions 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." "

15. Lord Reed rejected the proposition that each planning authority was entitled to determine the meaning of development plans from time to time as it pleased, within the limits of rationality. He said:

"18. … The development plan is a carefully drafted and considered statement of policy, published in order to inform the public of the approach which will be followed by planning authorities in decision-making unless there is good reason to depart from it. It is intended to guide the behaviour of developers and planning authorities. As in other areas of administrative law, the policies which it sets out are designed to secure consistency and direction in the exercise of discretionary powers, while allowing a measure of flexibility to be retained…..these considerations suggest that, in principle, in this area of public administration as in others (as discussed, for example, in R (Raissi) v Secretary of State for the Home Department [2008] QB 836), policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context. They are intended to guide the decisions of planning authorities, who should only depart from them for good reason.

19. That is not to say that such statements should 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 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. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse (Tesco Stores Ltd v. Secretary of State for the Environment [1995] 1 WLR 659, 780 per Lord Hoffmann)."

16. A decision letter must be read (1) fairly and in good faith, and as a whole; (2) in a straightforward down-to-earth manner, without excessive legalism or criticism; (3) as if by a well informed reader who understands the principal controversial issues in the case: see Lord Bridge in South Lakeland v Secretary of State for the Environment [1992] 2 AC 141, at 148G-H; Sir Thomas Bingham MR in Clarke Homes v Secretary of State for the Environment (1993) 66 P & CR 263, at 271; Seddon Properties v Secretary of State for the Environment (1981) 42 P & CR 26, at 28; and South Somerset District Council v Secretary of State for the Environment (1993) 66 P & CR 83.

The Waste Core Strategy

17. The WCS is part of the development plan, providing the basis for waste planning in Gloucestershire for a 15 year period from 2012. It was the subject of extensive consultation and consideration, and examination by an Inspector. It was adopted by the Third Defendant on 21 November 2012.
18. The WCS assessed waste capacity and allocated five sites for strategic waste recovery facilities. Strategic facilities were defined as those able to handle at least 50,000 tonnes of waste per year and requiring at least 2 hectares of land. The EfW facility proposed by the Second Defendant at the Appeal Site is one of several types of waste recovery facility envisaged under the WCS. The chosen location for the strategic facilities was close to the main urban areas along the M5 corridor. Javelin Park was one of the five sites allocated. It is a 5 hectare site, comprising part of a former airfield, located immediately south of junction 12 of the M5. It is owned by the Third Defendant, and is currently vacant. When the WCS was being considered, the Third Defendant supported the allocation of the Javelin Park site, in the knowledge of the scale and type of facility proposed by the Second Defendant which were made public from July 2011. The Second Defendant was accepted as preferred bidder in December 2011.
19. Policy WCS6 provides:

"Planning permission will be granted for strategic residual recovery facilities (>50,000 tonnes/year) within the outline boundaries of the site allocations shown in Appendix 5 at:

[…] 4. Javelin Park […]

Subject to the following:

(a) That the requirements of the General and Key Development Criteria for the respective site in Appendix 5 are met […]"

20. Appendix 5 sets out a series of "General Development Criteria" applicable to all the allocated sites. Under the "General Development Criteria", the section headed "Landscape/Visual Impact" provides:

"All proposals for waste management development must be supported by a landscape and visual impact assessment (LVIA). In particular the requirements of Core Policies WCS14 and WCS17 should be considered carefully within this assessment.

A broad based LVIA was carried out for all the allocated sites and the main findings are contained in the profiles to each site schedule.

The landscape consideration for each site schedule should be considered carefully in the detailed assessment which should accompany any proposals.

It should be noted that in the broad based assessment that the following possible building heights and scale of development were considered:

Small - 2000-6000m², with buildings up to 20m in height and potential emissions stack up to 40m in height.

Medium - 3000-7000m², with buildings up to 30m in height and potential missions stack up to 60m in height.

Large - 4000-9000m², with buildings up to 40m in height and potential emissions stack up to 80m in height.

These size ranges are a guide to be considered when proposals come forward on any of the allocated sites.

For proposals falling within small developments (under 20m)

Developers should use materials and infrastructure that should reflect the local style of the surrounding area, designed to sit as low in the landscape as possible using neutral, matt colours and avoiding the introduction of reflective materials.

Sensitive site planning is required to reduce the requirement for additional infrastructure and expansive areas of hardstanding.

The preservation and enhancement of existing woodland and hedgerow planting should be utilised. Boundary enhancements should be made where possible including the advanced planting of a native woodland mix of primarily deciduous trees and shrub understory planting to screen the site.

For proposals falling within medium to large developments (over 20m)

Boundary enhancements should be made where possible to include the advanced planting of a native woodland mix of primarily deciduous trees and shrub understory planting to screen the lower levels of the site.

However, where development is proposed that breaches the potential screening levels, proposals should be designed with particular attention to the requirements of Core Policy WCS17 to ensure that the building is of the highest architectural standard. Appropriate external architectural treatment/building materials, for example neutral, matt colours should be used and the introduction of reflective, shiny materials must be avoided.

Where possible, large roof and hardstanding expanses should be avoided or broken up to reduce the perceived scale of the facility. For all allocated sites particular consideration should be given to the potential impact on the setting of the Cotswolds AONB and how proposals have addressed potential mitigation measures through design.

In the cases of 'large' scale development proposals (40m+ buildings and stacks) there will be a need to demonstrate that the highest possible architectural design has been employed."

21. Appendix 5 also sets out "Key Development Criteria" particular to each site. The Key Development Criteria in relation to the Javelin Park site related to Access/Highways and Ecology/HRA.
22. The 'Environmental Considerations' for the Javelin Park site included:

"Landscape/Visual Impact. The site is located in an area that is relatively low and flat, therefore any facility would be clearly visible from the Cotswold AONB, the M5 and the surrounding low-lying areas. Some screening has already been undertaken to the western boundary."

23. Explanatory text dealing with policy WCS6 and Appendix 5 states:

"4.189  The strategic site allocations identified in Core Policy WCS6 have all been subject to careful consideration with regard to their potential environmental and community impact and the general and key development criteria contained in the Strategic Site Schedules attached at Appendix 5 will help to ensure that any impact is reduced to an acceptable level.

4.190  Should development proposals come forward on any of these sites, a further assessment will be needed at the planning application stage to determine the potential impact once the details of any proposal are known. Planning conditions can then be used to control certain aspects of the development as appropriate e.g. hours of operation and the impacts of noise, dust and odour."

24. Policy WCS14 (Landscape) provides:

"Core Policy WCS14 – Landscape

General landscape

Proposals for waste development will be permitted where they do not have a significant adverse effect on the local landscape as identified in the Landscape Character Assessment^* or unless the impact can be mitigated. Where significant adverse impacts cannot be fully mitigated, the social, environmental and economic benefits of the proposal must outweigh any harm arising from the impacts.

Areas of Outstanding Natural Beauty (AONB)

Proposals for waste development within or affecting the setting of the Cotswolds, Wye Valley and Malvern Hills Areas of Outstanding Natural Beauty (AONB) will only be permitted where it can be demonstrated that:

There is a lack of alternative sites not affecting the AONB to serve the market need; and

The impact on the special qualities of the AONB as defined by the relevant management plan (including the landscape setting and recreational opportunities) can be satisfactorily mitigated; and

The proposal complies with other relevant development plan policies.

In the case of major development within the AONB, a proven public interest must be demonstrated. Planning permission will only be granted in exceptional circumstances following the most rigorous examination and subject to the criteria above.

The County Council will continue to work in partnership with the respective AONB Conservation Boards and/or Joint Advisory Committees to help deliver the vision and objectives of the AONB Management Plans and Waste Core Strategy (WCS)."

25. Policy WCS17 (Design) provides:

"Core Policy WCS17 – Design

Subject to compliance with other relevant development plan policies, planning permission will be granted for waste related development that achieves a high standard of design that is clearly robust and articulated through a Design and Access Statement.

Particular issues to address will include:

How the proposal reflects, responds and is appropriate to its local environment and surroundings within Gloucestershire;

The durability, adaptability and sustainability of the proposal including the use of sustainable drainage to reduce the impact of surface water run-off;

How the proposal makes the most efficient use of the site; and

The use of high quality architecture and landscaping.

Poor quality design which fails to reflect or contribute positively to the character and quality of the area in which the proposal is located will be rejected."

The Inspector's report

26. The Inspector held a lengthy inquiry, received extensive evidence and submissions, and conducted a site visit. In his report, he summarised the evidence and the competing submissions from the parties in considerable detail. I am entirely satisfied that he both understood and took into account the evidence and the submissions.
27. In his careful and detailed report, I cannot detect any bias or pre-conceived assumptions arising out of his personal knowledge of the area, his previous employment with Gloucestershire County Council, and his examination of the WCS in his role as Inspector. He disclosed these prior involvements to the parties at the outset and no one objected to him hearing and determining the appeal.
28. Mr Elvin QC, for the Third Defendant, made detailed submissions to the Inspector about the proper approach to the interpretation of a planning policy. In particular, in his proposition 2, that "the interpretation of policy is based on the wording of the plan, not the draftsman's/examining inspector's intentions or knowledge" (IR 501). It is evident that the Inspector had these submissions well in mind when he came to analyse the policy, since he referred again to them. I do not consider that the passages which the Claimant complains about (e.g. in paragraphs 33 to 36 of its skeleton argument) disclose any impermissible approach to the interpretation of the policy.
29. The First Defendant was also aware of the Inspector's prior involvement at the time when he was considering the Inspector's Report. Whilst the Inspector's recommendations no doubt carried considerable weight, the First Defendant was the decision-maker, not the Inspector, and he was at liberty to depart from the Inspector's recommendations, if he thought it appropriate to do so. This had the (unintended) effect of providing an added safeguard against any risk that the Inspector's past involvement might improperly affect his approach to the appeal.
30. In my judgment, the Inspector correctly directed himself on the way in which the WCS should be interpreted, at IR 966 – 992.
31. The Inspector identified four "main issues" (IR: 998) which were:

"(a) The effect that the appeal proposal would have on the delivery Government's climate change programme and energy policies.

(b) Whether the appeal proposal would be acceptable 'in principle' under WCS policy WCS6.

(c) The effect that the appeal proposal would have on the character and appearance of the Vale landscape and the setting of the Cotswolds AONB.

(d) The effect that the appeal proposal would have on the setting of various heritage assets in the vicinity of the appeal site."

32. The Inspector's identification of the main issues was not disputed either at the Inquiry or before me.
33. The Inspector set out his conclusions on this issue at IR 1038 – 1072, from which I have extracted the key passages:

"Whether the appeal proposal would be acceptable "in principle" under WCS policy WCS6

Introduction

1038. The part of paragraph 18 of Tesco that Mr Elvin emphasised is quoted above [500]. He set out the whole paragraph in his closing submissions (GCC/INQ/13, paragraph 15). There it also says that '(the carefully crafted and considered development plan) is intended to guide the behaviour of developers and planning authorities'. This is echoed in the WCS itself where the reason for following a site allocations approach rather than one that is criteria-based is to '…provide greater certainty for residents and businesses about what may come forward and where, but will also increase confidence within the waste industry as to the availability of suitable sites…which will in turn…improve the prospects of delivery.' (CD5.1, paragraph 4.81). Clearly therefore a prospective developer is entitled to read the WCS and understand from it what might be acceptable on any given plot of land, particularly those specifically allocated for waste uses.

1039. GCC does not dispute that the recent strategic allocation of the appeal site in WCS policy WCS6 means that the principle of its development for waste management facilities is established [498]. Following Tesco and reading the policy plainly it goes considerably beyond that as Mr Phillips contended [172 to 182].

1040. The heading to the policy is 'Other Recovery (including energy recovery)'. The appeal proposal therefore falls within the scope of the policy. The preamble says that provision will be made for residual waste recovery capacity of up to 145,000 tonnes per annum MSW and up to 73,000 tonnes per annum C+I waste; it is technology neutral. At 190,000 tonnes per annum the appeal proposal falls within the upper limit of that combined range and there is nothing in the WCS that says the required capacity cannot be provided by a single facility. In fact, the WCS anticipates the potential for one large strategic facility to come forward to meet each requirement (CD5.1, paragraph 4.84) and says that it is for the waste industry to bring forward proposals to manage the residual C+I waste (CD5.1, paragraph 4.85). There is nothing to preclude a single plant providing treatment capacity for both residual waste streams.

1041. The policy continues by saying that planning permission will be granted for strategic residual recovery facilities, defined as those handling over 50,000 tonnes per annum, within the outline boundaries of the listed site allocations. The annual waste management capacity of the appeal proposal is clearly above that threshold and the appeal site is wholly within the boundaries shown for Javelin Park in WCS Appendix 5.

1042. In principle therefore planning permission should be granted for the appeal proposal under this policy subject only to compliance with the three criteria set out (the remainder of the policy not being applicable). Those criteria are (a) meeting the requirement of the General and Key Development Criteria in Appendix 5; (b) a particular Habitats Regulation issue; and (c) a requirement that the proposal be for the County's waste needs unless it can be shown to be the most sustainable option to manage waste form further afield. I deal with these in turn.

The General and Key Development Criteria in Appendix 5 – WCS policy WCS6(a)

1043. WCS Appendix 5 is in two parts. First, it sets out a series of General Development Criteria…..

1044. Second, it sets out Key Development Criteria for each of the five sites allocated by WCS policy WCS6. They are not to be confused with the Environmental Considerations that precede them in the individual site schedules; these are more by way of a description of the site. In respect of Javelin Park, two Key Development Criteria are listed. The first is Access/Highways. This is not a matter of contention between the main parties although it has been raised as an issue by local residents [876, 893, 921, 934, 958 and 959] and is addressed later. The second is Ecology/HRA. Site specific ecological matters are again not in dispute between the main parties and HRA matters are addressed below when considering WCS policy WCS6(b).

1045. Returning to the General Development Criteria …

1046. The next of the General Development Criteria to be in dispute is Design. Since what is said in Appendix 5 simply refers to a requirement to address WCS policy WCS17, this is considered later. Similarly, Ecology/HRA is addressed later too.

1047. That leaves Landscape/Visual Impact. Setting aside for a moment the first paragraph of this section of the General Development Criteria, the second confirms that a broad based landscape and visual impact assessment was carried out for all the allocated sites with the main findings included within the profiles to each site schedule. As noted above by omission [1044], landscape and visual matters are not listed among the Key Development Criteria for Javelin Park. Within the Environmental Considerations section for the site, under Landscape/Visual Impact it is however noted that the area is relatively low and flat so any facility would be clearly viable from the Cotswolds AONB, the M5 and the surrounding low-lying areas (my emphasis). That some screen planting has already been undertaken on the western boundary is also recorded. The next paragraph requires that this consideration be carefully addressed in detail in any application.

1048. The fourth paragraph sets out the possible building heights and scale of development considered in the broad based assessment undertaken by Atkins as part of the preparation of the WCS (my emphasis). These are small, medium and large with large being 4000 to 9000 square metres with buildings up to a height of 40 metres and an emissions stack up to 80 metres tall. These size ranges are said to be a guide to be considered when proposals come forward. However, they were not strictly followed when giving more detailed guidance in the next section. Instead, the medium and large were combined in an 'over 20 metre' category. Why GCC did this is not clear and no-one was available to ask [966]. With respect, what Mr Elvin says [520 final bullet] is speculation and runs counter to his own 'proposition 2' [505].

1049. The guidance section advises on matters such as style, materials, colours, planting and boundary treatment for the small (under 20 metres) and the medium to large (over 20 metres) categories. The latter is set out in full because it is important:

Boundary enhancement should be made where possible to include the advanced planting of a native woodland mix primarily deciduous trees and shrub understory planting to screen the lower levels of the site.

However, where development is proposed that breaches the potential screening levels, proposals should be designed with particular attention to the requirements of Core Policy WCS17 to ensure that the building is of the highest architectural standard. Appropriate external architectural treatment/building materials, for example neutral, matt colours should be used and the introduction of reflective, shiny materials must be avoided.

Where possible, large roof and hardstanding expanses should be avoided or broken up to reduce the perceived scale of the facility. For all allocated sites particular consideration should be given to the potential impact on the setting of the Cotswolds AONB and how proposals have addressed potential mitigation measures through design.

In the cases of 'large' scale development proposals (40m+ buildings and stacks) there will be a need to demonstrate that the highest possible architectural design has been employed. (my emphasis)

1050. There is no ambiguity in any of the above. Adopting Mr Elvin's 'proposition 2' [501, 504, 505] it is not necessary to go beyond the WCS itself. In particular, it is unnecessary to examine in detail the work that Atkins did for GCC as WPA in coming to the conclusions set out in Appendix 5 and detailed in the immediately foregoing paragraphs. In doing so it seems to me that the purpose of Mr Elvin [531] and Mr Simons [630] was to question the basis on which the WCS had been adopted, not to resolve any ambiguity in the policy or the Appendix. While they may now disagree with the approach taken by GCC neither argued that, even if it was flawed, this amounted to a material consideration that should outweigh the development plan when applying s38(6) of the Act. I have not therefore considered those arguments further and have taken the text of WCS Appendix 5 at face value and on what I regard as its plain meaning.

1051. Several observations are therefore pertinent. Building height is just that; it is not process height or above ground height or visible height. While it is suggested that small developments should be designed to sit as low in the landscape as possible, this stipulation does not apply to the larger buildings.

1052. As stated already, the three reference categories for assessment purposes are combined into only two for the purposes of the guidance; under and over 20 metres. There is no cut-off and it is wrong to say that developments of the appeal proposals' size were not considered when finalising this part of the General Development Criteria. In drawing attention to the need to pay particular regard to WCS policy WCS17 in the second italicised paragraph above [1049] it is the appearance of the buildings that is constantly stressed. For those buildings larger than 'large' study parameters the only additional requirement is the need to show that the highest possible architectural design has been employed (my emphasis). In both cases this is a narrower interpretation of 'design' than discussed above [990 to 992] and influences the way compliance with WCS policy WCS17 should be assessed. Although I do so with caution in the light of 'proposition 2', I consider the 'additional' to be implicit as it would be nonsensical if all the other requirements for 20 metre plus buildings did not apply to the very largest.

1053. Finally, there is no requirement for any development coming forward on Javelin Park or any other allocated sites to be limited in height so that the skyline is not breached. However, Mr Russell-Vick identified such a breach as a significant cause of harm [550 to 552, 560] and in XX by Mr Phillips confirmed that from the representative viewpoints he was taken to, a building at Javelin Park above about 34 metres would cause the same degree of harm as the appeal proposal since the skyline would be breached by it [205]. While that is clearly and properly his professional view it amounts to an 'in principle' objection to any development in excess of some 34 metres [77]. That is simply contrary to what is said in the WCS and thus an untenable position for GCC to now take.

1054. Furthermore, as shown in the timeline [964], if that had have the view of the WPA in the light of the application it had by then received, it could have made this clear during the examination hearings. It did not; in fact, it did the complete opposite [72].

1055. The exposed nature of the site and its prominence in views from the AONB were well understood; attention was drawn to them [1047]. The appeal proposal is within the 20 metre plus category in the adopted WCS Appendix 5 although the emissions stack would be lower than the maximum stack height assessed. While the footprint would exceed that assessed, the ranges are a guide, not an absolute and in any event have not been strictly adhered to. It is clear too that the assessment was based on scale as well as height [1048]; an objection on this ground is therefore inconsistent with what the WCS says.

1056. GCC does not object to the appearance of the appeal proposal [167] which is the principal factor to be taken into account when assessing acceptability of any proposal against WCS policy WCS17 [1049]. However others do, so this is a matter to which I shall return when considering compliance with WCS policy WCS17.

1057. To summarise, the appeal proposal would be within the parameters of the guidance that underpins that part of the General Development Criteria in Appendix 5 as adopted. In my judgement therefore it is incompatible with the content of the WCS to object to the appeal proposal for reasons of height and scale. Returning now to the first paragraph of the Landscape/Visual Impact section of the General Development Criteria and the landscape and visual impact assessment required to support all proposals, it is my judgement that this should explain how the applicant has addressed the guidance set out above [1049] in the light of WCS policies WCS14 and WCS17 which are concerned primarily with the mitigation of significant adverse effects that a proposed development would otherwise have. In respect of WCS policy WCS17, that must be primarily the way in which the building's appearance has been developed to address any issues arising from that assessment."

………

"Conclusion on compliance with WCS Policy WCS6

1072. For the reasons set out I do not consider that there would be any conflict with WCS policy WCS6(b) or (c). It is not possible to finally conclude on compliance with WCS policy WCS6(a) since an assessment against WCS policies WCS14 and WCS17 is required. However, the Landscape/Visual Impact section of the General Development Criteria set the context for that assessment. As explained above, it is my view that what is acceptable in principle in terms of the scale and height of any proposal coming forward has been established. The appeal proposal would be within those parameters. It follows from the above analysis that I do not agree with the fundamental principles on which GCC and SDC advanced this part of their respective cases."

"Conclusions on this issue

1164. This is one of the most important issues in the determination of this appeal. The way that WCS policy WCS6 and Appendix 5 work together means that the appeal site is allocated in the WCS unfettered both in terms of the type of strategic residual recovery facility that might be accommodated and the scale of the buildings that might be constructed [see for example, 174]. While Mr Elvin must be right that the development plan does not rubber stamp the proposal [heading to paragraph 530], it must also be right that what amount to matters of principle cannot now be raised against the proposed development, when they should have properly been included somewhere within the WCS as constraints on the form of development that could come forward on this particular allocated site. My conclusion is that much of the objection raised by GCC and SDC on this matter does go to principle. In that context Mr Elvin fairly explained that purpose of the evidence called from Mr Darley and Mr McQuitty [584]. For the reasons set out [1151] I do not consider it necessary to review their evidence on 'height'."

"Planning balance and overall conclusions"

1322. The essence of the objections to the appeal scheme raised by GCC and SDC is the size of the building in this location; the landscape and visual effect that the appeal proposal would have is my third issue. In this respect, size embraces height, mass and scale. Javelin Park is an exposed site adjacent to the M5 motorway in a largely flat area overlooked in the broad sweep of the landscape from many elevated positions on either side of the River Severn including several points on the Cotswolds Escarpment such as Haresfield Beacon and other access land below the ridge. The obvious landscape and visual impact that a large building in this location would have was assessed and concluded upon by GCC in the evidence base supporting the WCS. It was found to be acceptable and no height, mass or scale constraints were noted in Appendix 5. The evidence to the Inquiry of the consultants instructed by GCC and SDC that any development that would break the skyline or be in excess of some 34 metres in height would be unacceptable as a matter of principle is simply not reflected in or consistent with the adopted WCS."

34. In my judgment, the Claimant has failed to establish any error in the Inspector's interpretation of the policy, and its application to the Appeal Site. Once the Inspector's conclusions are read in their proper context, they are both comprehensible and sound.
35. It is important to appreciate that what the Inspector meant by the "in principle" matters, in the paragraphs quoted above, were those matters raised by the objectors to the development. In summary, they were as follows:

i) A limit on height should be applied (IR 1055, 1164, 1320);

ii) Any development that would break the skyline or be in excess of some 34 metres in height would be unacceptable (IR 1053, 1322);

iii) Impacts should be minimised to the greatest extent possible (IR 977, 1151, 1164).

36. The Inspector correctly found that these requirements were not part of Policy WCS6.
37. The Inspector then went on to consider, in detail, the visual impact of the proposal and its effect on the landscape. At IR 1073 – 1168, the objections and the evidence were carefully considered, and properly assessed against the criteria in Policy WCS14 and Policy WCS17. This entailed consideration of the height and scale of the proposal, as well as its design (e.g. IR 1081, 1112 – 1119).
38. However, the Inspector distinguished the evidence and objections which challenged "in principle" development at this site (IR 1164), which was consistent with the conclusions he had reached earlier in his Report. The evidence of Messrs Darley and McQuitty was considered by the Inspector (see e.g. IR 166 – 171, 174, 186 – 193, 194 – 214, 584, 587, 589 and 598). In my judgment, he was entitled to conclude, at IR 1164, that it was not necessary for him to review their evidence on height since that evidence was intended to demonstrate that more could be done to reduce the visual impact. By that stage of his report he had already concluded that Policy WCS6 did not require visual impact to be minimised to the greatest degree possible (IR 977, 1151). The issue he had to decide was whether the proposed development was acceptable in landscape and visual terms, not whether a hypothetical alternative development might have been preferable.
39. The Inspector concluded that the proposed development would not conflict with Policy WCS14 and Policy WCS17. The Appeal Site was on the urban fringe and the landscape had the capacity to absorb the development. It was inevitable that a building of such a large size would be prominent - this was a consequence of the allocation of the site in WCS6. However the Second Defendant had successfully addressed the factors set out in WCS Appendix 5 which were intended to deal with and mitigate the impact of the large waste facilities required. He added, at IR 1151:

"1151. These criticisms go to what the two local planning authorities see as the failure to minimise to the greatest possible extent the impacts that there would be through the principal mechanism of reducing the height to the lowest practicable level. As set out above [977, 1047 to 1057], I do not consider the WCS capable of bearing that interpretation, in my opinion, the DAS adequately describes the local context and explains how the design evolved to respond to it. A building of the scale and height that inevitably flows from the provisions of the WCS for the site was always going to require an imaginative response. CABE considered that had been achieved (CD1.1 (ii), page 24) and I see no reason to disagree."

40. In my judgment, the Inspector's conclusions were, in large part, planning judgments which he was entitled to reach. The Court cannot substitute its own views of the planning merits for those of the Inspector.

The First Defendant's decision

41. The First Defendant agreed with the main issues identified by the Inspector (DL 16).
42. At DL 22 – 27, he considered whether the appeal proposal would be acceptable "in principle" under WCS Policy WCS6:

"22. Having had regard to the Inspector's introductory remarks at IR 1038 – 1042, the Secretary of State shares his view that, in principle, planning permission should be granted for the appeal proposal under policy WCS6 subject to compliance with criteria a,b,c. He has gone on to consider those criteria.

23. The Secretary of State has carefully considered the Inspector's reasoning and conclusions on how the General and Key Development Criteria apply to this appeal (IR 1042-1057). He has considered the representation dated 29 October 2014 submitted by GlosVAIN which argues that a localised height restriction applies to the appeal site but, having taken account of the Inspector's remarks at IR 1123 – 1124, he does not consider that the height restriction relating to the planning consent for warehousing on the site amounts to a localised height restriction applicable to the appeal before him. He agrees with the Inspector's conclusion at IR 1057 that the appeal proposal would be within the parameters of the guidance that underpins that part of the General Development Criteria in Appendix 5 as adopted. Like the Inspector (IR 1057), the Secretary of State agrees that it is incompatible with the content of the WCS to object to the appeal proposal for reasons of height and scale.

.....

27. The Secretary of State has considered carefully the Inspector's conclusions (IR 1072) on whether the appeal proposal would be acceptable "in principle" under WCS policy WCS6. For the reasons set out above, the Secretary of State considers that there would not be any material conflict with WCS policy WCS6(b) or (c). In terms of compliance with WCS6(a), the Secretary of State agrees with the Inspector's approach in first considering the proposal against WCS policies WCS14 and WCS17. The Secretary of State addresses these matters below."

43. The First Defendant agreed with the Inspector's interpretation of the WCS, stating:

"31. The Secretary of State agrees with the Inspector that the way that WCS policy WCS6 and Appendix 5 work together means that the appeal site is allocated in the WCS unfettered both in terms of the type of strategic residual recovery facility that might be accommodated, and the scale of the buildings that might be constructed. He agrees too that while the development plan does not 'rubber stamp' the proposal, what amounts to matters of principle cannot now be raised against the proposed development, when they should have properly been included within the WCS as constraints on the form of development that could come forward on this particular allocated site (IR 1164)"

44. As I have already stated, I consider that this interpretation of the WCS was correct.
45. The First Defendant then went on to consider the issues of landscape and visual impact, and the effect on the setting of the Cotswold AONB. He concurred with the Inspector's conclusion that the proposed development did not conflict with Policy WCS14 or 17. The Second Defendant had addressed the factors set out in WCS Appendix 5 to deal with the impact of such a prominent building on an open site. It was a development on the urban fringe which could be absorbed into the landscape.
46. The First Defendant had before him all the evidence and submissions from witnesses, including Messrs McQuitty and Darley, and there is nothing in the DL to suggest that he excluded any of the evidence from proper consideration. He was the primary decision-maker; he was not merely reviewing the Inspector's recommendations (see Wind Prospect Development Ltd v Secretary of State for Communities and Local Government [2014] EWHC 4041 (Admin), at [23] – [25]). His assessment did involve consideration of the objections to the height and scale of the proposal, at DL 28 - 34.
47. The First Defendant agreed with the Inspector's planning judgment, concluding that the proposed development would not conflict with WCS14 or WCS17. This court cannot substitute its view for that of the planning decision-maker in matters of planning judgment.

Conclusion

48. For the reasons set out above, the Claimant's application is dismissed.