Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 150
XA67/11	OPINION OF LORD STEWART in an appeal under Section 239 of the Town and Country Planning (Scotland) Act 1997 by NORTH LANARKSHIRE COUNCIL Appellants; against a decision of H M Begg and E D K Thomas, reporters appointed by the Scottish Ministers, dated 18 May 2011 granting planning permission for a waste recovery and renewable energy facility ________________

Appellants: D Armstrong QC; Simpson & Marwick

First Respondent: Thomson QC, E Mackenzie; Scottish Government Legal Directorate

Second Respondent: Mure QC; Brodies LLP

18 September 2012

[1] This is an appeal to the Inner House of the Court of Session in terms of the Rules of the Court of Session, Chapter 41, which by interlocutor of the Extra Division dated 5 August 2011 has been remitted to the Outer House for a hearing. The appeal is brought under the Town and Country Planning (Scotland) Act 1997 s 239 against a decision of reporters appointed by the Scottish Ministers in relation to a planning application. The appellants in this appeal are the local planning authority, North Lanarkshire Council. The reporters' decision of 18 May 2011, which the appellants are now contesting, overturned the appellants' own decision. The appellants refused planning permission. The reporters granted planning permission. The planning application is for a waste recovery and renewable energy facility, otherwise called a pyrolysis plant. The developers are Shore Energy Limited [Shore Energy]. They are the second respondents to this appeal. The first respondents are the Scottish Ministers who have an interest in the substance of the proposals from the point of view of national waste management policy.

[2] The appeal raises an important question about the meaning and application of waste management policy in the context of local planning considerations and national environmental objectives. There is an issue about the "proximity principle" and the extent to which local planning authorities should have regard to national objectives and the requirement for managing waste generated in other parts of Scotland when considering "need" in relation to planning applications for waste management facilities locally. I heard two days of argument on 19 and 20 January 2012 and made avizandum. Having reflected on the submissions of counsel and considered the documents and authorities to which counsel referred me I have decided that there are no legal grounds within this statutory appeal process for sustaining the appeal and I accordingly refuse it. I emphasise that my powers under the section 239 statutory appeal procedure are restricted to determining the question whether the decision made, in this case by the reporters, is within the powers conferred by the Town and Country Planning (Scotland) Act 1997. I am not required or entitled to address the merits of the planning decision.

Shore Energy's planning application, 22 June 2009

[3] Shore Energy's planning application was submitted on 22 June 2009. The site is described in the planning application supporting statement as the former Shanks & McEwan waste landfill site at Carnbroe, address 251 Glasgow and Edinburgh Road, Coatbridge ML5 4UG. It is convenient to refer to the site, the application and the proposal using the name Carnbroe. The area of the site is 3.6 ha. The supporting statement describes the proposed development as "a merchant materials recovery and renewable energy facility housed within one building". The facility is said to comprise two distinct processes namely (1) materials recovery and fuel preparation; and (2) pyrolysis and energy generation with waste heat recovery. The recovery process is proposed to have the capacity to process up to 160,000 tonnes of waste per annum and the pyrolysis process is proposed to comprise two units each with the capacity to process up to 40,000 tonnes per annum of fuel either from the recycling and fuel preparation process or from direct delivery of waste or non-waste biomass.

[4] It is said that the materials recovery and fuel preparation process will produce recyclables such as glass, metals and plastics and unrefined biomass fuel. Further treatment will produce highly refined biofuel. Refined biofuel will be fed directly into the pyrolysis process or blended with imported bio-mass, waste or non-waste, prior to pyrolysis. Pyrolysis is described as the application of heat in a controlled, usually air-starved, atmosphere to break down longer-chain organic molecules into hydrogen, methane, carbon monoxide and carbon dioxide. Temperatures of 500°C -900°C are required. The process produces both carbon rich "char" and synthetic fuel gas. The char will be sold as an industrial additive or disposed of to landfill. It is proposed to collect the gas and store it on site for subsequent application to provide heat for the pyrolysis process and to fuel electricity generation. My understanding of the written proposal is that the electricity generated will be applied to the processes with only the possibility of generating a surplus for export to the national grid. The reporters found that the facility would have a maximum output of 10MW per annum of which 3MW would be used in the facility and 7MW exported to the national grid. Waste heat from all processes will be utilised in fuel preparation.

[5] The proposed facility is intended to accept wastes from municipal, commercial and industrial sources. The Glasgow Waste Composition Analysis is used to indicate the materials composition and moisture content of inputs, for example 62.40% (presumably by weight) comprising organic material with a moisture content of 63.30%. On the basis of the indicative analysis it is said that the expected outputs are:

·        20% recovered for recycling (plastics, metals, inerts);

·        23% water treated and disposed of;

·        46% refined biofuel

·        11% exported for further treatment or landfill.

Going by the text and the heading on diagram PAS 4.1 these figures are for outputs from municipal waste inputs. I assume the percentages represent proportions of the total inputs by weight. The "23% water treated and disposed of" seems to be the same output described in the diagram as "water losses" and, possibly - this is not explained - will be driven off as steam. The total potential annual inputs to the site are estimated at 180,000 tonnes including, as I understand it, 20,000 tonnes of non-waste biofuel delivered direct. The solid outputs for export from the site are predicted to be 57,000 tonnes a year comprising:

·        32,000 tonnes recyclates;

·        17,000 tonnes residual waste to landfill;

·        8,000 tonnes char

Report to the Planning Committee, 15 February 2010

[6] Officials of the appellants' Planning Department recommended to the Planning Committee that permission should be granted for the proposals subject to conditions. The officials' report to the Planning Committee records that 4,298 representations against the proposal had been received. Most of these representations were submitted through the local residents group Monklands Residents against Pyrolysis Plant [MRAPP] on pro forma letters. One hundred and fifty-two of the MRAPP pro forma objections had no sender address or an illegible sender address. Nine duplicate representations were received. Monklands Glen Community Council, claiming to represent the views of 500 households, submitted an objection. A letter of objection was received from Elaine Smith MSP. There was no objection from statutory consultees. There were two letters of support, one of which was from Scottish Enterprise.

[7] The officials' reasons for the positive recommendation were as follows:

"The proposals are considered acceptable as they accord with the terms of the Glasgow and the Clyde Valley Joint Structure Plan 2000 incorporating the 4^th alteration 2008 and the Monklands District Local Plan 1991, the National Waste Strategy (NWS) and Area Waste Plan (AWP) where it has been adequately demonstrated that the proposals are acceptable in terms of need, comply with the proximity principle and offer the best practicable environmental option (BPEO) for dealing with the identified waste streams. There was no objection from statutory consultees including the Scottish Government, SEPA, SNH, Scottish Transport, and Scottish Water or from other organisations such as SWT and RSPB. There was no objection from the respective NLC services requested to comment on the application. The accompanying ES demonstrates that environmental impacts from the development would not be significant and it is agreed that the suggested mitigation measures can be controlled through appropriate conditions.

Despite the significant volume of representation received in regards to the application, it has been determined that the material terms of the objections cannot be sustained. The proposals accord with the terms of the development plan and are acceptable when assessed against the NWS, AWP and other material considerations noted in the main report."

Refusal of planning permission, 29 March 2010

[8] Notwithstanding the recommendation of their officials, the appellants refused the planning application on 29 March 2010 and issued their decision notice on 21 April 2010. The listed reasons were as follows:

"1 That the proposals would be contrary to the terms of the development plan and Glasgow and Clyde Valley Area Waste Plan, as there is no need for a regional waste management facility of this type and scale to serve the waste management requirements of the North Lanarkshire area.

2 That the proposals would result in increased traffic levels at Shawhead Interchange that would be detrimental to air quality.

3 That the proposals would result in increased traffic levels at Shawhead Interchange and on the A8 that would be detrimental to road safety.

4 That it has not been adequately demonstrated that the proposed waste management facility would not be detrimental to human health, particularly of children and adults living near to the site."

Shore Energy appealed to the Scottish Ministers against the refusal of planning permission. The Scottish Ministers appointed H M Begg and E D K Thomas as reporters with delegated powers to determine the appeal. The reporters arranged to hold an inquiry.

[9] The main focus of the debate, as it has been carried forward through the administrative planning appeal stage into the current judicial appeal proceedings, is on the issue of whether and to what extent local, area and national waste management needs, respectively, can be relevant determining factors. This involves an understanding and interpretation of land use planning policy in relation to waste management. The main issue as it has been submitted for my decision is whether the reporters' understanding and application of national policy is sound. I have to emphasise that no issue has been raised in these proceedings as to the lawfulness of the policy itself: the issue is about its interpretation. A disconcerting feature is that the goal posts have shifted more than once as policy has evolved since Shore Energy made their planning application in 2009. Parties have produced a helpful timeline from January 1995 to October 2011 which shows the history of Shore Energy's application against the evolution of waste management policy locally and nationally [joint bundle No 27]. Another disconcerting feature is that senior counsel for the Scottish Ministers declined my invitation to say what he thought government policy means, submitting that the issue is whether or not the meaning assigned by the reporters is one that the words of the policy are reasonably capable of bearing. Most of the debate has been about policy statements contained in revised annex B to the Zero Waste Plan. Inferences might well be drawn from the fact that a new policy was launched on the day before the Carnbroe inquiry, without consultation, in something called a "revised annex" and in terms that require, shall I say, significant interpretation: but that is not for me to do. I have to take the policy as I find it. All parties are agreed that the issue has to be understood in the context of Community Law: but no Community Law, Convention Rights (human rights) or Aarhus Convention (environmental rights) points as such have been raised in these proceedings.

The Landfill Directive 1999/31/EC and the Waste Framework Directive 2008/98/EC

[10] European waste directives impose obligations on the United Kingdom as a member state. Within the United Kingdom the Scottish Government now exercises devolved responsibility for implementation of the directives. Relevant European Community initiatives on waste management go back to the Waste Directive 75/442/EEC, subsequently amended and codified in Directive 2006/12/EC. Counsel made reference to two directives, namely the Landfill Directive 1999/31/EC and the revised Waste Framework Directive 2008/98/EC which repealed and superseded Directive 2006/12/EC.

[11] The effect of the Landfill Directive 1999/31/EC is described as follows in the National Planning Framework for Scotland 2 (2009) [NPF 2], paragraph 27:

"The EU Landfill Directive requires the amount of biodegradable municipal waste going to landfill to be reduced by 35% of the total produced in 1995 by 2020. Landfill Tax is increasing substantially. Additional facilities for the treatment and recycling of municipal, commercial and industrial wastes are therefore urgently needed. As the methane produced by landfill sites is a powerful greenhouse gas, reducing the scale of landfill helps to combat climate change. The construction and operation of waste management installations can also offer new economic opportunities."

The planning system is said to have "a crucial role to play in ensuring that installations are delivered in time to allow waste management targets to be met"; and NPF2 also states: "Where possible, [installations] should be located close to population centres." [§§ 168, 169].

[12] In terms of the revised Waste Framework Directive 2008/98/EC, article 4, there is a "waste hierarchy" to be applied "as a priority order in waste prevention and management legislation and policy". The hierarchy is: "(a) prevention; (b) preparing for re-use; (c) recycling; (d) other recovery, eg energy recovery; and (e) disposal." In terms of article 11, re-use and recycling targets for 2020 are 50% of waste materials such as paper, metal, plastic and glass from households and 70% of non-hazardous demolition waste. Article 16 sets out the waste management principles of "self-sufficiency" and "proximity":

"1. Member States shall take appropriate measures, in cooperation with other Member States where this is necessary or advisable, to establish an integrated and adequate network of waste disposal installations and of installations for the recovery of mixed municipal waste collected from private households, including where such collection also covers such waste from other producers, taking into account best available techniques.

[...]

2. The network shall be designed to enable the Community as a whole to become self-sufficient in waste disposal as well as in the recovery of waste referred to in paragraph 1, and to enable Member States to move towards that aim individually taking into account geographical circumstances or the need for specialised installations for certain types of waste.

3. The network shall enable waste to be disposed of or waste referred to in paragraph 1 to be recovered in one of the nearest appropriate installations, by means of the most appropriate methods and technologies, in order to ensure a high level of protection for the environment and public health.

4. The principles of proximity and self-sufficiency shall not mean that each Member State has to possess the full range of final recovery facilities within that Member State."

[13] Member States have to ensure, in terms of article 28, that their competent authorities establish "Waste Management Plans" covering the entire territory of the Member State in accordance with, among other things, the article 4 waste hierarchy and the article16 sufficiency and proximity principles. The prescribed content of waste management plans is as follows:

"2. The waste management plans shall set out an analysis of the current waste management situation in the geographical entity concerned, as well as the measures to be taken to improve environmentally sound preparing for re-use, recycling, recovery and disposal of waste and an evaluation of how the plan will support the implementation of the objectives and provisions of this Directive.

3. The waste management plans shall contain, as appropriate and taking into account the geographical level and coverage of the planning area, at least the following:

(a) the type, quantity and source of waste generated within its territory, the waste likely to be shipped from or to the national territory, and an evaluation of the development of waste streams in the future;

(b) existing waste collection schemes and major disposal and recovery installations, including any special arrangements for waste oils, hazardous waste or waste streams addressed by specific Community legislation;

(c) an assessment of the need for new collection schemes, the closure of existing waste installations, additional waste installation infrastructure in accordance with Article 16, and, if necessary, the investments related thereto;

(d) sufficient information on the location criteria for site identification and on the capacity of future disposal or major recovery installations, if necessary;

(e) general waste management policies, including planned waste management technologies and methods, or policies for waste posing specific management problems;

[...]"

Waste management plans may contain other matters.

The proximity principle and planning advice

[14] I was shown Planning Advice Note PAN 63 "Waste Management Planning" first issued in 2002 and subsequently updated, version current as at 17 June 2010. PAN 63 is said to complement National Planning Policy Guideline 10, Planning and Waste Management [NPPG 10] and to build on the information given on land use planning for waste management in the National Waste Strategy [NWS]. The policy perspective is framed by the EC directives on waste management and landfill.

[15] The annex to PAN 63 gives the following advice about self sufficiency and the proximity principle:

"5. The concept of regional self-sufficiency for waste management purposes is established by NPPG 10 which states that providing a local waste management network, structure plan areas should generally seek to provide sufficient facilities for managing local waste. To serve common needs, the NPPG recognises that provision in a neighbouring area may be closer to the waste source and thus more compliant with the proximity principle [...]

6. The proximity principle advocates that all waste should be disposed of, or otherwise managed, as close as practicable to the point at which it is generated. The main reasons for this are that:

·                    it is more likely to accord with the principles of sustainable development by avoiding environmental damage caused by transporting waste over a long distance;

·                    it encourages all those who created waste to take more responsibility and consider carefully the effects of managing the waste they create;

·                    it may assist the local economy; and

·                    overall costs should be lower

7. Adherence to the proximity principle may be difficult where there is an inadequate range or distribution of facilities close to where the waste is generated. In some circumstances the movement of waste by alternative modes to road eg rail, canal or sea, could involve longer journeys but might nevertheless represent the BPEO [best practicable environmental option]. Special waste may require facilities outwith the area."

Scottish Planning Policy, the National Waste Plan and Area Waste Plans

[16] A statement of the Scottish Government's policy on nationally important land use planning matters was published in Scottish Planning Policy [SPP] in February 2010. The position on what was called "a sustained approach to waste management planning" is outlined as follows:

"213. ... The waste hierarchy favours prevention over reuse, recycling, recovery then disposal. The proximity principle requires waste to be dealt with as close as possible to where it is produced. This means taking local responsibility for the treatment and disposal of waste. Planning for waste management infrastructure to meet all waste needs within each local authority area is a key part of fulfilling this responsibility. An authority may also fulfil this responsibility by working with other authorities to develop shared strategic waste infrastructure.

214. A significant increase in the number range and type of waste management installation is needed to manage municipal, commercial and industrial waste. Composting facilities, transfer stations, materials recycling facilities, and anaerobic digestion, mechanical, biological and thermal treatment plants are the main types of installation that are required. From 2010, the need for and required capacity of facilities will be established in the Zero Waste Plan. Until then, capacity requirements should be informed by the National Waste Plan and Area Waste Plans, the objectives of the Business Waste Framework and information held by SEPA, including quarterly local authority and operators' returns and the annual Waste Data Digest. Authorities should also take into account potential future capacity requirements."

This was the position at the time of the original planning decision. Then, in June 2010 the Zero Waste Plan was issued.

Scotland's Zero Waste Plan, 2010

[17] Since June 2010 the Scottish Government's waste plan is the plan entitled "Scotland's Zero Waste Plan" [ZWP] [joint bundle No 11]. I have learned from the ZWP that Scotland produced almost 20 million tonnes of waste in 2008 with 2.9 million tonnes of the total coming from the household sector, 8.6 million from the construction industry and 7.9 million tonnes from other commercial and industrial sources. The ZWP is said to have at its heart "a change of mindset, a need for every one of us to start viewing waste as a potential resource". The plan is intended to "create a stable framework that will provide confidence for the [private sector] investment necessary to deliver a zero waste Scotland over the next 10 years". The longer term target is 70% recycling of all waste arising in Scotland by 2025. For resources that cannot be re-used or recycled the strategy is electricity generation and heat recovery. There will be a progressive ban on the materials that can be sent to landfill with the aim of achieving a maximum 5% of waste disposal to landfill by 2020.

[18] Substantial new infrastructure will be required to meet the ZWP targets. Information about the current "infrastructure capacity gap" is presented in a Scottish Environmental Protection Agency [SEPA] methodology document dated 4 March 2011 [joint bundle No 13]. The percentage of "total waste arisings" disposed of to landfill in 2008 was 44% or 6,112,198 tonnes. The waste to be diverted to alternative management if the 5% target is to be achieved by 2025 - that is, looking ahead from now, in thirteen years time - is 5,136,429 tonnes, which is the measure of the "infrastructure capacity gap". The SEPA figures are used to calculate data for Tables 1 and 2 of annex B to the ZWP "Role of land-use planning to deliver Zero Waste". Table 1 is captioned "Additional Operational Waste Management Infrastructure Capacity required to meet the Zero Waste Plan Targets (by Development Plan Area)". Senior counsel for the Scottish Ministers emphasised that the plan envisages that the requirement for additional infrastructure capacity will be met by the market presumably meaning by operators such as Shore Energy. I also understood from senior counsel's submission that waste management, or at least the resource management aspect, is not to be regarded simply as a hygiene function: the sector is an important industry for the future.

[19] Annex C contains the following statement in relation to landfill bans:

2.4 The research [commissioned by the Scottish Government and others] also highlighted the importance of timing and sequencing when introducing landfill bans. Introducing a ban on biodegradable waste before, or even at the same time as a ban on unsorted waste, could lead to over supply of residual waste treatment facilities. Put simply, landfill bans alone will not lead to high reuse and recycling rates. It would result in a shift from landfill to residual waste treatments such as Mechanical Biological Treatment [MBT] and Energy from Waste [EfW] facilities.

2.5 The risk is that residual waste treatment prices fall and undermine the economics of Zero Waste Scotland policy aims which give prominence to waste prevention, re-use and closed-loop recycling activities which maximise value-chain opportunities.

2.6 EfW has an important role to play and can make a positive contribution to both renewable energy and climate change targets. However, in order to achieve the high levels of prevention, reuse and recycling outlined in the Zero Waste Plan it is imperative that materials that could be reused or recycled are not directed to mixed waste treatment such as EfW facilities.

2.7 The Scottish Government considers that there is a need to adopt an approach that prevents valuable resource going to landfill, reduces Scotland's climate change impact, and supports high re-use and recycling rates for all waste. Consequently, the Scottish Government intends to introduce regulatory changes that will drive the following:

1. Source segregation and separate collection of specific materials.

2. Placing restrictions and only allowing suitable waste types to be treated in energy from waste plants.

3. Ban specific materials from landfill.

4. Place a limit on the biodegradable content of waste which can be landfilled.

These actions should not be seen in isolation but as part of a package of complementary and supporting measures. The undernoted flow chart illustrates how waste materials flow through the waste management system - from waste production and sorting of materials through to intermediate treatment, recovery and disposal."

Revised annex B

[20] The inquiry in relation to Shore Energy's proposed development was scheduled to take place on 15 February 2011. The day before, 14 February 2011, the Scottish Government issued a revised annex B. The inquiry was conducted on the basis that revised annex B applied. The ZWP revised annex B contains policy statements about the role of land-use planning in implementing national waste management strategies that are relevant to Shore Energy's proposals for the Carnbroe site. The written submissions for the parties quote a number of paragraphs. At the hearing I was referred to paragraphs 3.3-4.8, 4.10, 5.3, 5.4, 5.8, 5.10, 5.11, 5.13, 5.16, 5.17 and Table 1 [joint bundle No 12].

[21] Important points are that the ZWP with a number of other specified documents including SEPA's Thermal Treatment of Waste Guidelines 2009, the National Planning Framework [NPF] and the Scottish Planning Policy [SPP] now constitute the "National Waste Management Plan" replacing previous documents; that the ZWP supersedes certain references to waste policy in the NPF and the SPP; that local and strategic development plans should allocate sites and identify potential sites, including land designated for employment, industrial, storage and distribution uses, for waste management facilities "for all wastes arising in Scotland"; that need and proximity should be considered strategically as the achievement of a sustainable strategy may involve waste crossing planning boundaries; that the Scottish Government will not be prescriptive about the mix of technologies and facilities required to meet ZWP targets; that Table 1 allocates the national shortfall to development plan areas/ groups of local authorities but allocated capacities are not to be treated as limits; that the Table 1 information is not intended to prevent individual authorities from becoming centres for waste management; that planning consents are not a guarantee that capacity will be delivered; that the Table 1 shortfall is expected to reduce as time passes for a number of reasons including new infrastructure coming on stream; that it is for developers to manage commercial risks and secure waste inputs for their plants; that good practice requires planning authorities to identify opportunities for delivering enough infrastructure to deal with all waste arising in Scotland; that strategic development plans should reflect the requirement for local authorities to work together to develop a network of installations for all wastes across Scotland; that every effort should be made to ensure that proposed facilities are consistent with the national approach to proximity and need to enable delivery of the network of installations across Scotland; planning applications must be assessed against the national need for facilities and consideration must be given to the role the proposal would play in delivering the required national capacity; that responses by individual members of the public and community groups to planning applications should take into consideration the national waste management needs; and that elected local authority members should understand the role of the planning system in relation to national waste management needs.

[22] Table 1 allocates required infrastructure capacity for meeting ZWP targets by area in three categories, namely pre-sorted wastes, unsorted wastes and landfill. The unsorted wastes allocation for Glasgow and Clyde Valley Strategic Development Plan Area (which includes North Lanarkshire) is 1,150,000 tonnes annually. Shore Energy's proposals are for treating unsorted wastes.

[23] One of the National Waste Management Plan documents specified by annex B is "SEPA's Thermal Treatment of Waste Guidelines 2009". The guidelines have particular relevance to the pyrolysis plant proposal. Section 2.2, "The proximity principle", states:

"National planning policy and guidance outlines that waste should be handled as close to source as possible [...] this refers principally to dealing with waste as close as possible to where it is produced [...] The proximity principle applies to avoiding the adverse environmental impacts of unnecessary transport. It is therefore a key land use consideration in terms of the location of a proposed facility."

Section 2.3, "Capacity and need", states:

"It is the applicant's responsibility to submit information in support of the need for the development. This information is similar to the type considered for the proximity principle and is as follows:

·                    Baseline information quantifying amount, geographical location/ source and type of waste to be dealt with at the site, including details of any waste growth assumptions used.

·                    Details of existing waste treatment/ disposal practises and facilities for the waste stream concerned and rationale for the additional facility.

[...]

·                    Details of the proposed scale of the development and how it relates to the Scottish Government's 25% cap on the thermal treatment of municipal waste by 2025.

[...]

This type of information will help to establish whether the proposed capacity of the facility will help support sustainable waste management and not impede recycling and waste prevention. The Scottish Government's presumption against large scale inefficient energy from waste facilities should also be noted. To this end, SEPA has defined capacity in the following way based largely on the practicalities of heat use:

·                    Small scale < 100,000 tonnes per annum

·                    Medium scale 100,000-300,000 tonnes per annum

·                    Large scale > 300,000 tonnes per annum"

However, the guidelines have been updated by an addendum dated May 2011 and, as I understand it, section 2 has been superseded and SEPA's role is described in SEPA Land Use Planning System Guidance [LUPS] Notes 5 and 6 relative to ZWP issues [joint bundle Nos 14 and 15].

[24] Versions 3 and 4 of SEPA LUPS Guidance Note 5 [LUPS GU3 v3, LUPS GU3 v4] are produced, issue dates respectively 27 April 2010 and 24 June 2011. Version 2 of SEPA LUPS Guidance Note 6 [LUPS GU6 v2] is produced, issue date 25 May 2011. Commenting on the revised ZWP annex B, "Need and Proximity" section, paragraphs 4.1 and 4.3, SEPA LUPS GU6 v2 states:

"6.3 This means that it is acceptable for waste arising from any location within Scotland to be treated in any waste management facility proposed within Scotland. We will therefore not require information about the origin of the waste to be treated in a particular facility to be provided in the planning application.

6.4 All proposals should comply with the development plan (comprising the relevant sections of the NPF2, the Strategic Development Plan if one exists for the area and the relevant Local Development Plan), irrespective of whether the proposal is to address waste arising from the local authority area, a 'joint solution' for several local authorities or a national facility."

SEPA LUPS GU6 v2 also states:

"7.1 The ZWP establishes that there is a need for new waste management infrastructure to be provided until there is a national annual capacity available to meet the targets set out in the ZWP. The consideration of "need" for a waste management facility will be undertaken by the Planning Authority in accordance with the detailed guidance set out in Annex B of the ZWP. Planning applications should include information which demonstrates to the planning authority that a new proposal will support the achievement of an integrated sustainable waste management network and contribute towards meeting the need for facilities that address the Zero Waste requirements [...]

7.2 An estimation of national need (based on 2008 baseline data) is given in Table 1 of Annex B to the ZWP [...]

[...]

7.4 [...] We should stress in our planning responses that the figures in Tables 1 and 2 should not be considered as limits on development."

SEPA submitted consultation responses in relation to Shore Energy's proposals.

SEPA's consultation responses on need and proximity

[25] The SEPA consultation response of 23 October 2009 obviously pre-dated the ZWP and the May 2011 updating of "SEPA's Thermal Treatment of Waste Guidelines 2009". In relation to need, the response stated that Shore Energy should be asked "whether all existing thermal treatment facilities in the proposed feeder areas have been considered - this is a fundamental aspect of the determination of 'need' for this additional facility." The response further stated:

"[...] it is considered that the need case has not been fully demonstrated to explain why a plant of this size is required for this particular location in North Lanarkshire, as the relationship to other waste management facilities should be key site selection criteria. We therefore ask that the applicant provide an assessment of the extent to which these additional facilities will affect the quantities of residual waste which may be treated in the proposed facility."

In relation to proximity the same response stated:

"The applicant states that the site's location has been chosen on the basis that 15 Local Authorities are within a 30 mile radius of the site. If the planning authority are satisfied that this specific location is acceptable in land use planning terms, we consider that this facility can be considered a 'joint infrastructure solution' as stated at the end of paragraph 2.1.2 of the 2003 National Waste Plan. As the AWP [Area Waste Plan] does still remain a material consideration, we would recommend establishing that the proposal does not conflict with any locational restrictions contained within the AWP, particularly as there is potential for waste to be sourced from within the AWP area.

We consider that the applicant has demonstrated compliance with the proximity principle given the location of the proposal relative to waste arisings which could potentially be treated."

[26] By letter dated 17 January 2011 to the appellants' Directorate for Planning and Environmental Appeals, SEPA updated its consultation response in advance of the inquiry. The update recognised that the ZWP and associated documents had by this stage superseded the 2003 National Waste Plan and that "the need for additional facilities has been identified with the publication of the Zero Waste Plan and the SPP [Scottish Planning Policy], in order to ensure the ZWP targets for sustainable management of waste can be achieved by 2025." SEPA made clear that it had already been satisfied by the information relating to need supplied by Shore Energy during the original planning application process. My reading of SEPA's letter of 17 January 2011 is that policy development at national level had reinforced the need case for the Carnbroe development. For the avoidance of doubt SEPA took the view that there was a need, as I understand it, even before the May 2011 updating of SEPA's "Thermal Treatment of Waste Guidelines 2009".

Zero Waste (Scotland) Regulations 2011

[27] SEPA's letter of 17 January 2011 noted that the draft Zero Waste (Scotland) Regulations 2011 were out for consultation. I was directed to certain passages in the consultation document for the draft regulations as being illustrative of the direction of policy [joint bundle No 18]. The purpose of the regulations is declared to be the introduction of regulatory measures to implement three specific actions identified in the ZWP, namely (1) to require source segregation and separate collection of specified waste materials, (2) to restrict input to landfill (effectively banning materials which could be re-used or recycled or which could be used to produce energy) and (3) to restrict inputs to energy from waste facilities (effectively banning materials which could be re-used or recycled). The last point has particular relevance for Shore Energy's pyrolysis plant proposal.

[28] Paragraph 9.1 of the consultation document sets out some energy from waste [EfW] principles. The sustainability of EfW depends on burning only waste which cannot be re-used or recycled. Until segregation at source becomes commonplace pre-treatment will be required to recover re-usable and recyclable material from unsorted waste and to remove non-combustibles so as to produce a high calorific fuel going forward to EfW facilities. Over-investment in EfW facilities for electricity generation carries the risk of locking Scotland into supplying large quantities of unsorted waste. The effect of providing EfW facilities should not be simply to move Scotland from landfill to mass incineration at the expense of high quality recycling achieved through source segregation and separate collection. The regulations are intended to restrict EfW inputs to residual wastes and other suitable waste types and to achieve this by requiring the pre-treatment of all unsorted waste delivered to EfW facilities and the progressive pre-sorting at source of all wastes. The regulations passed into law on 27 March 2011 as the Waste (Scotland) Regulations 2011 No 226.

Glasgow and Clyde Valley Joint Structure Plan 2008

[29] The development plan includes the Glasgow and Clyde Valley Joint Structure Plan 2008. The plan recognises that meeting the government's waste policy targets requires the development of waste management facilities in the structure plan area "including efficient energy from waste plants". Reference is made to the assessment of need in the Glasgow and Clyde Valley Area Waste Plan [AWP] [§ 10.8]. The Structure Plan was said to support the provision of "appropriate and necessary infrastructure required to meet municipal waste management targets [...] and to support national policy on commercial and industrial waste". Development proposals would be supported by the Structure Plan where "they are consistent with an agreed needs assessment and can be justified in terms of BPEO, proximity principle, local amenity and the Guiding Principles on Sustainable Development, particularly relating to transport". At the date of publication the guidance on needs assessment and BPEO in the AWP related only to municipal waste. Work would be undertaken to support the government's policy of reducing the amount of industrial and commercial waste going to landfill [§ 10.9]. My attention was directed to the Strategic Policy 9 and 10 criteria for assessing waste management development proposals. Of particular relevance are the locational criteria. To accord with the Structure Plan, developments must be appropriate in terms of the need to implement the waste management hierarchy as defined in the National Waste Strategy and priorities identified in the AWP; and departures from Strategic Policy 9 have to be justified in terms of at least one of a number of listed criteria in Strategic Policy 10 including specific locational need, ie "the need for the development which is specifically associated with a particular location".

Decision of the Scottish Ministers' Reporters, 18 May 2011
[30] The inquiry took place on 15-18 February 2011 and the reporters issued their decision on 18 May 2011. The Appeal Decision Notice states:

"4. The key determining issues in this appeal are (i) the need for this facility, taking into account the proximity principle, and the suitability of the preferred location, and (ii) its impacts on traffic (particularly at the Shawhead Interchange), landscape and visual amenity, habitats and ecology, air quality, odour and human health, and land quality and flood risk, all having regard to the provisions of the development plan, relevant national planning and waste guidance and advice, and any other relevant material considerations.

[...]

10. In making our determination, we must give considerable weight to the up to date statements of policy which are to be found variously in the Zero Waste Plan including the revised Annex B, the National Planning Framework 2, Scottish Planning Policy, and the Scottish Environmental Protection Agency's 2009 Thermal treatment of waste guidelines. Where there is any remaining disconnect or residual ambiguity in the wording of these documents we must pay particular attention to the terms of the latest statement of policy as set out in the Zero Waste Plan and its newly published Annex B

[...]

14 .. The figures demonstrate that there is a pressing need to provide additional operational waste management infrastructure if the targets incorporated within the Zero Waste Plan are to be met by 2025.

15. ... The subdivision of Scottish need by groups of local authorities and development plan areas has been provided to assist local authorities to plan for the achievement of a sustainable strategy and this may involve waste crossing planning boundaries... we can find no policy support for the view that an embargo should be placed on approvals for waste management facilities within North Lanarkshire on the grounds that the council has provided sites for infrastructure capacity on a pro rata basis relate to population or, indeed, any other criterion.

[...]

17. We have searched in vain within the array of relevant policy documents for definitive guidance on what amounts to an integrated network of waste recovery. We find that for practical purposes that arrangement of facilities would have sufficient infrastructure of an appropriate size and location for each of the elements of the waste hierarchy to meet at least the national targets incorporated within the Zero Waste Plan. Since the development would import materials from at least one location and export materials to others it must be part of some network of waste management facilities. In so far as the development would have a materials recovery and fuel preparation facility situated adjacent to a pyrolysis plant with power generation and waste heat recovery, we find that it assists in the delivery of an integrated network of waste management facilities."

18. ... While the commitment to sustainable development which underpins the proximity principle is clear, there has been little in the way of unambiguous advice on how the principle should be applied in practice. On reflection, we agree with the submission from the council that the proximity principle must be considered in the context of thinking strategically and across local planning boundaries and a new approach to assessing need. To do otherwise would be to open the door to 32 local solutions for treating waste rather than pursuing the strategic thinking which is integral to national policy...

19. In that general context, we must reject as irrelevant and without foundation in policy the appellant's identification of a catchment area for waste arisings defined by a radius of 30 miles from the appeal site. Nor can we accept the argument raised variously by the council and objectors that because facilities at Drumshangie, Greengairs and elsewhere, whether existing or consented, may be sufficient to meet the requirements for the management of waste arisings within North Lanarkshire that the transport of inputs from elsewhere to the appeal site would breach the intent of the proximity principle as most recently set out.

[...]

21. Drawing these matters together, we find that the commercial ambitions of the appellant are not at variance with the achievement of the targets for zero waste incorporated in national policy towards waste management... With all that in mind, we can move on to assess whether at this time the appeal site displays characteristics which render it suitable for consideration as a location for the proposed development."

[31] In relation to the determining issues the reporters concluded:

"74. ... that there is an urgent need for the facility, and that this remains the case when account is taken of the proximity principle; that the location and site are suitable; that the impacts on traffic (particularly at the Shawhead Interchange), landscape and visual amenity, habitats and ecology, air quality, odour and human health, and land quality and flood risk are all within acceptable limits, subject to appropriate mitigations measures; that there is very strong support for the proposal in terms of national planning and waste policy, guidance and advice; that the proposal does not contravene the terms of the development plan or the emerging local plan; and that there are no other material considerations, either by themselves or taken in conjunction with others, which attract sufficient weight to justify a refusal of planning permission."

The reporters granted planning permission subject to conditions.

Submissions for the appellants

[32] The appeal print states 25 grounds of appeal. The note of argument for the appellants groups the grounds of challenge under six heads, viz (1) need and proximity principle, (2) integrated network of waste recovery, (3) the process, (4) the structure plan, (5) the 25% cap policy and (6) the conditions of the grant. Senior counsel for the appellants followed this plan in his well-structured oral submissions. The six heads are interlinked and all of the arguments tend to come back to the primary determining issue identified by the reporters, namely "the need for this facility, taking into account the proximity principle, and the suitability of the preferred location" A large part of the decision notice is devoted to the issue of "need and proximity" [joint bundle No 1, Appeal Decision Notice, § 4; §§ 5-21 ]. The largest part of the note of argument is devoted to this aspect [§§ 12-21].

[33] My understanding of the appellants' submissions in relation to heads (1), (2) and (4) is that the reporters are said to have departed from government policy and the development plan in a number of respects and to have failed to give reasons, or to give intelligible reasons for doing so. In this connection there is an issue as to whether the reporters have assigned a meaning to policy statements which the words of the policy are capable of bearing. In relation to head (3) the argument is that the reporters made a material error of fact. Head (5) has now been departed from. Head (6) is about the reporters' understanding of their powers and is also a "reasons" argument. There was possibly a little difference of emphasis in the relation to the legal principles that apply but essentially the parties are agreed as to the applicable law and its substance. I have rehearsed the main propositions derived by the parties from the case law cited to me and I am happy to accept these.

Need and proximity

[34] Mr D Armstrong QC, senior counsel, for the appellants opened by challenging the report's approach to the issues of need and proximity. The reporters identified as the first key determining issue "the need for this facility, taking into account the proximity principle and the suitability of the preferred location"; and they concluded that the figures in revised annex B Table 1 "demonstrate that there is a pressing need to provide additional operational waste management infrastructure..." [Appeal Decision Notice §§ 4, 15]. Senior counsel submitted that an assessment of "need" for land use planning necessarily involves considering the relevant area to be served by the proposed development and the extent to which the need is met by other developments actual and proposed.

[35] Shore Energy's proposal was premised on a catchment area within a 30-mile-as-the-crow-flies radius from the development site. Where the radius touched on other local authority areas, the whole of those areas was brought within the 30-mile catchment area. The outer limits would involve road journeys of up to 90 miles. The appellants assessed need by reference to their local authority area and the Structure Plan area, formerly the area of Strathclyde Regional Council. The reporters however did not define the area to be served by Shore Energy's proposal; the report did not explain the reporters' approach to need; and it did not justify the reporters' approach. The reporters, senior counsel submitted, did not follow government policy.

[36] By way of comparison senior counsel referred to the appeal decision, dated 14 December 2010, relative to the Oxwell Mains proposal, near Dunbar, East Lothian [joint bundle No 26]. "Need" was part of the primary determining issue [§ 1]. The need assessment area was closely defined, namely for "residual municipal waste arising in the council areas of East Lothian, Midlothian and the City of Edinburgh" and for "residual commercial and industrial waste arising in the council areas... covered by the former Lothian and Borders Area Waste Plan" [§ 11]. The reporter considered whether the proximity principle was satisfied for the need assessment area in relation to the Oxwell Mains site having regard to likely infrastructure capacity, waste management targets and the accessibility of the site [§ 19-22]. This was the correct approach, said senior counsel. In the Carnbroe case the reporters did not deal with these issues. There was no indication, said senior counsel, that the reporters applied the proximity principle.

[37] Senior counsel referred to certain principles derived from the case law: decision makers must make a decision by reference to the development plan and in accordance with the plan unless material considerations indicate otherwise; decision makers must set out adequate and intelligible reasons such as do not give rise to doubt as to whether a rational decision has been reached on relevant grounds; decision makers are bound to understand and interpret policy correctly and to apply it or, if not applying it, to give proper reasons; and it is for the Court to say whether decision makers have attributed to policies meanings which the policies cannot reasonably bear [Moray Council v The Scottish Ministers 2006 SC 691 at §§ 28-30 per Lord Justice-Clerk; South Bucks District Council v Porter No 2 [2004] UKHL 33 at § 36 per Lord Brown of Eaton-under Heywood; Gransden v Secretary of State for the Environment [1987] 54 P & CR 86 at 94 per Woolf J, approved by the Court of Appeal in Horsham DC v Secretary of State for the Environment [1991] 63 P & CR 86 219; City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33 at 44G-H per Lord Clyde; City of Edinburgh Council v The Scottish Ministers 2001 SC 957 at § 13 per Lord Kirkwood giving the Opinion of the Court citing R v Derbyshire County Council ex parte Woods [1997] JPL 958 and Virgin Cinema Properties Ltd v Secretary of State for the Environment and Others [1998] 2 PLR 24 at 29].

[38] Senior counsel submitted that the reasons given by the reporters were not intelligible. He referred to the Appeal Decision Notice paragraphs 5 to 9 and 14 and 15. At paragraph 15 the reporters reached the following conclusion:

"We are in no doubt that the council has taken a responsible approach to the treatment of waste arisings in North Lanarkshire. However, we can find no policy support for the view that an embargo should be placed on approvals for waste management facilities in North Lanarkshire on the grounds that the council has provided sites for infrastructure capacity on a pro rata basis related to population or, indeed, any other criterion."

According to senior counsel the starting point has to be the figure for unsorted waste arisings for the Glasgow and Clyde Valley Strategic Development Plan Area as stated in the revised annex B, Table 1, namely 1,150,000 tonnes annually and the substantial amount of infrastructure consents already existing for the Strategic Development Plan Area. NPF2 referred to a network of waste management installations "which enable movement of waste to be minimised" and to a "hub and spoke" arrangement for linking to tertiary facilities" [§§ 168, 169]. The SEPA 2009 Guidelines recommended that developers should demonstrate compliance with the proximity principle by providing information about existing and proposed treatment facilities in the area and transport links [§ 2.2].

[39] The reporters were wrong to say: "We have searched in vain within the array of relevant policy documents for definitive guidance on what amounts to an integrated network of waste recovery"; it did not make sense for the reporters to say in the same breath that they do not know what an integrated waste management network is and that the development would assist in the delivery of such a network; and since the composition of the waste stream could not be predicted the reporters could not know that it would not all go to landfill. [Appeal Decision Notice § 17]. The reporters rejected as "irrelevant and without foundation in policy" Shore Energy's 30-mile-radius catchment area: but at no stage did they assess need in relation to the Strategic Development Plan Area or give reasons for not following policy in relation to need and proximity. To say that the proposals are "not at variance with" the achievement of ZWP targets was not a relevant test in relation to the application of the proximity principle [Appeal Decision Notice §§ 19-21]. Senior Counsel drew my attention to the risk of over-proliferation of energy from waste facilities particularly in a situation in which the wastes arising figures might go down rather than up and in this connection referred to PAN 63 annex paragraph 6, SPP 2010 paragraph 213, SEPA's Thermal Treatment of Waste Guidelines 2009 sections 2.2 and 2.3, ZWP (passages quoted above), consultation document on ZWP regulations paragraph 9.1, ZWP revised annex B paragraphs 3.3, 3.5-3.10, 4.1-4.7, 5.4 and 5.11.

[40] Senior counsel also drew my attention to the fact that revised annex B paragraphs 3.6 and 3.7 flagged up changes to NPF2 paragraphs 167 and 170 but carried no suggestion of changes to NPF2 paragraphs 168 and 169 relating to the proximity principle. Paragraphs 168 and 169 remain policy. Again, said senior counsel, at paragraph 3.9 there was no suggestion of altering the proximity principle, merely an indication that NPF2 paragraph 213 references to the proximity principle "should be taken in the context of the guidance in Section 4" of revised annex B. There was, said senior counsel, a "fundamental misunderstanding" of revised annex B by the reporters.

[41] Senior counsel referred to revised annex B Table 1, Glasgow and Clyde Valley Area infrastructure capacity gap for unsorted wastes being 1,150,000 tonnes. He illustrated, by reference to evidence led at the inquiry, how the figure could be interpreted as an infrastructure capacity gap for front end processes only or as a cumulative figure for front end processes and for downstream treatments such as WfE processes. On the latter approach the Shore Energy proposal could be viewed as delivering 240,000 tonnes of capacity ie unsorted waste inputs of 160,000 tonnes plus derived WfE inputs of 40,000 tonnes x 2, together making 80,000 tonnes, total 240,000 tonnes. The reporters misunderstood the evidence [Appeal Decision Notice § 11-12].

[42] The reporters had failed, according to senior counsel, to address the contribution made to closing the infrastructure capacity gap by already existing permissions, minded-to-grant decisions and submitted applications [Appeal Decision Notice § 19]. On this basis the total EfW capacity in Shore Energy's 30-mile-radius catchment area was already 770,000 tonnes [joint bundle No 9 § 4.2]. Although the figures were for EfW inputs they necessarily derived from and implied a substantially greater front end capacity (the exact figure depending on the conversion ratio for unsorted wastes to EfW inputs). Whatever the precise figures, they were substantial and the figures were at least a relevant factor for the reporters to take into account. The reporters left the figures out of account altogether. The only reference by the reporters to existing and consented developments was, confusingly, in connection with the transport of inputs to the Carnbroe site [Appeal Decision Notice § 19].

[43] Senior counsel continued to the effect that SEPA's "Thermal Treatment of Waste Guidelines 2009", paragraphs 2.2 and 2.3 expressly referred to "information on existing and proposed treatment facilities in the area" as factors relevant to the assessment of need and to a consideration of how new proposals "would assist in the delivery of an integrated network of waste management facilities". It was, said senior counsel, a failure of reasoning on the part of the reporters not to have addressed this side of the equation: they should have considered it and set out their view. At this point senior counsel referred to paragraphs 20 to 23 of the note of argument for the appellants. The reporters did not explain why they had failed to follow the SEPA guidance. The reporters had failed to address the issue of need specifically at the Carnbroe location and specifically for an EfW facility, EfW being identified in the ZWP as the second bottom category in the hierarchy of waste management. The reporters did not give recognition, as a material consideration, to the fact that the consented and minded-to-consent developments in and around the North Lanarkshire area far exceeded the North Lanarkshire share of the infrastructure capacity gap calculated on a population pro rata basis. North Lanarkshire's share of the Table 1 figure of 1,150,000 tonnes would be about 230,000 tonnes pro rata. The reporters had failed to take account of the fact that the need for infrastructure would reduce as the 2025 target date approached. In conclusion on this chapter of his submissions, senior counsel submitted that the reporters had failed to set out a need for the infrastructure proposed by Shore Energy at the location proposed or why the need was pressing; and they had failed to explain their failure to use the Structure Plan Area as the area for assessment of need.

Integrated network of waste recovery

[44] Moving to the issue of an "integrated network of waste recovery" senior counsel for the appellants submitted that NPF2, paragraph 169, had not been amended. Paragraph 169 stated:

"Relevant considerations in the siting of installations will include proximity to sources of waste, the transport network and the relationship of intermediate transfer and treatment installations to tertiary waste management installations [...] Where possible, [treatment and transfer facilities] should be located close to the population centres they serve. They should be linked to tertiary waste management installations in a 'hub and spoke' arrangement, where possible by rail or water."

Senior counsel also referred to the SEPA consultation response of 23 October 2009 and the Glasgow and Clyde Valley Joint Structure Plan (2008), paragraphs 10.8 and 10.9. The government, according to senior counsel, was "looking for a planned geographical network of infrastructure". This was ignored by the reporters who stated that they had searched in vain for definitive guidance on the issue [Appeal Decision Notice § 17].

The waste management process

[45] Senior counsel referred to paragraph 12 of the Appeal Decision Notice containing the reporters' findings about the capacity of the proposed processes. The findings, he said, were simply incorrect. The reporters had misunderstood the processes. The reporters had calculated outputs from inputs based on "indicative" figures for municipal waste only whereas the Carnbroe proposal is for a "merchant facility" accepting waste from all sources [joint bundle No 3, Shore Energy supporting statement § 4.1.3]. This was a material error of fact which affected or may have affected the reporters' conclusions, including the reporters' conclusions as to the transport required and the amount of waste to landfill.

The development plan

[46] The relevant development plan comprises the Glasgow and Clyde Valley Joint Structure Plan (2008) and the Monklands Local Plan (1995) [Appeal Decision Notice § 24]. The reporters addressed Structure Plan issues at paragraphs 24-26 and 72 of the Appeal Decision Notice. The reporters' treatment of the issues, said senior counsel, was "on its own not a major point": but it was important for the way it fitted with the reporters' failure to consider "need". The assessment of need was central to the way waste management proposals were dealt with by the Structure Plan.

[47] Senior counsel characterised the Structure Plan as "having three tiers of fall back". In terms of the Waste Management section, paragraph 10.9, proposals for waste management facilities "will be supported by the Structure Plan where it can be demonstrated that that they are consistent with an agreed needs assessment" etc. It is further stated that: "Proposals will also need to be justified in terms of Strategic Policies 9 and 10" [joint bundle No 24, excerpt at 1]. Strategic Policy 9B(vii) requires waste management proposals to be justified against an assessment of the need to implement the waste management hierarchy, etc. For proposals failing to meet Strategic Policy 9 criteria, Strategic Policy 10A requires justification in terms of, among other things, "(v) specific locational need". According to the Glossary of Terms "specific locational need" means: "The need for a development which is specifically associated with a particular location" [joint bundle No 24, excerpt at 7, 8, 10].

The 25% cap on energy from mixed municipal waste

[48] The appeal print at ground XVII criticises the reporters for failing to give weight to a material consideration, namely the 25% cap policy. The National Planning Framework 2 [NPF2] states that: "Waste management infrastructure has an important part to play in realising the Scottish Government's objective of a greener Scotland." A key element of the Scottish Government's Waste Policy is said to be "a 25% cap on energy from mixed municipal waste" [joint bundle No 19, NPF2, §§ 166-167]. It is quite clear that the reporters considered this matter in some detail and made a judgment that a 25% cap condition would not be enforceable and that in any event such a condition would be superseded by the Zero Waste (Scotland) Regulations 2011 which were then in draft form [Appeal Decision Notice §§ 66-67]. The regulations have now been brought into law. Senior counsel told me that this ground of appeal was not being insisted on.

Restriction of inputs to North Lanarkshire waste arisings

[49] Senior counsel referred to the Drumshangie and Oxwell Mains permissions [joint bundle Nos 25 and 26]. According to senior counsel each of these permission was subject to a condition restricting waste to be received and treated to waste arisings in specified areas. (This is debatable in the case of the Drumshangie permission.) In the present case the Monklands Residents Against Pyrolysis Plant [MRAPP] asked for conditions to be imposed if permission were to be granted. The reporters did impose certain of the conditions requested. The reporters did not impose the condition requested by MRAPP to restrict the facility to receiving waste arisings from North Lanarkshire.

[50] At paragraph 71.6 of the Decision Appeal Notice the reporters gave the following reasons for rejecting the condition:

"We have explained why compliance with the National Waste Management Plan and in particular, the Zero Waste Plan, precludes the possibility of imposing a condition which restricts the plant to receiving waste arisings from North Lanarkshire. There is no dispute that anaerobic digestion at a plant located elsewhere would be a better option for the treatment of food waste in relatively large quantities. However, we accept from the appellant that any food waste would form only a very small part of the mixed municipal waste accepted at this plant."

Senior counsel's criticism was that, contrary to what was stated by the reporters, there was no explanation elsewhere as to why such a condition was precluded. The nearest to an explanation was the statement in paragraph 15 of the Decision Appeal Notice: "However, we can find no policy support for the view that an embargo should be placed on approvals for waste management facilities within North Lanarkshire on the grounds that the council has provided sites for infrastructure capacity on a pro rata basis related to population or, indeed, any other criterion." Senior counsel submitted that a negative in the shape of the absence of policy support could not amount to a positive reason for not imposing the condition.

Legal principles

[51] Senior counsel referred to the Bolton case for the proposition that a planning decision may be invalidated by a failure on the part of the decision maker to take a material consideration into account [Bolton MBC v Secretary of State for the Environment and Anr
[1991] 61 P & CR 343 at 352-353 per Glidewell LJ with whom the other members of the Court of Appeal agreed]. Senior Counsel drew my attention to the SEPA consultation response of 23 October 2009, paragraphs 1.1, 1.3 and 1.7 [joint bundle No 17, quoted above]. Senior counsel acknowledged that the response had been submitted before the introduction of the ZWP. However, the supplementary consultation response of 17 January 2011, which followed the publication of the ZWP, stated: "... it should be noted that through the consultation process of the original planning application, we were satisfied with the information submitted by the applicant relating to the need for the proposed facility." SEPA stated that, in this respect, their position had not been changed [joint bundle No 16].

[52] Senior counsel returned to the propositions stated at the outset, this time by reference to some additional passages, namely Moray Council v The Scottish Ministers 2006 SC 691 at §§ 28-31 per Lord Justice-Clerk; South Bucks District Council v Porter No 2 [2004] UKHL 33 at §§ 24-36 per Lord Brown of Eaton-under Heywood; Gransden v Secretary of State for the Environment [1987] 54 P & CR 86 at 87 and 93-94 per Woolf J, approved by the Court of Appeal in Horsham DC v Secretary of State for the Environment [1991] 63 P & CR 86 219 and applied in R (on the application of Lovelock) v The First Secretary of State [2006] EWHC 2423. In addition senior counsel referred to Wordie PropertyCo Ltd v Secretary of State for Scotland 1984 SLT 345 at 348 per Lord President.

[53] In relation to the "reasons argument" [South Bucks], senior counsel submitted that the appellants were "genuinely and substantially prejudiced" by virtue of the fact that they did not know what regard the reporters had had to policy, how they interpreted policy, how they went about deciding key points in relation to need, a needs assessment and the proximity principle. The informed reader [Wordie Property] was left "in real and substantial doubt as to what the reasons were for [the decision] and what were the material considerations which were taken into account in reaching it". Gransden, said senior counsel, was a "need" case concerned with "the need to maintain a five-year supply" of housing land. The planning policy guidance in Gransden was equivalent to the SPP in Scotland; and Gransden was authority for the proposition, which applies in the present case, that policies may be departed from but, if departed from, departure must be justified by clear reasons so that "the recipient of the decision knows why the decision is being made as an exception to the policy". Senior counsel asked me to take as read paragraphs 31 to 36 of the appellants' note of argument, under deletion of paragraph 35 (25% cap on municipal waste inputs), which I shall do, at the risk of repetition.

[54] The criticism in paragraph 31 is that the reporters did not set out intelligible and adequate reasons for their decision on the key issue of need and the proximity principle and failed to consider the material considerations. The answers of the first and second respondents to the section 239 appeal go to highlight the inadequacies of the Appeal Decision Notice in that they offer support for the reporters' decision on the basis of other material not relied on by the reporters, that is the interim zero waste targets (which the reporters did not mention) and guidance produced after the Appeal Decision Notice was issued. Paragraph 32 criticises the reporters for ignoring or rejecting Scottish Government policy on the question of whether the Carnbroe proposal "assists in the delivery of an integrated network of waste management facilities" without giving adequate reasons. The reporters are criticised, at paragraph 33, for misunderstanding the proposed processes; and this is said to be a material error. In paragraph 34 the respondents' conclusions on the Structure Plan are said not to set out intelligible and adequate reasons, representing, it is said, a failure properly to consider the Carnbroe proposal against the Structure Plan. Finally, it is said, the reporters did not set out intelligible and adequate reasons for not imposing a condition restricting the plant to receiving waste arising from North Lanarkshire, their determination on this matter having been based on an erroneous assessment of policy and their power to impose such a condition.

Submissions for the Scottish Ministers, first respondents

[55] Mr Thomson QC, senior counsel for the Scottish Ministers, first respondents, invited me to refuse the appeal. He reminded me that the refusal of planning permission by North Lanarkshire Council, now the appellants, bore to be based on policy considerations applying up to the day before the inquiry; and he submitted that revised annex B, which came into effect on that day and on the basis of which parties argued their cases at the inquiry, had a far greater impact than was acknowledged by Mr D Armstrong QC for the appellants. The appellants made their election: they could have asked for the matter to be sent back for re-determination but they chose not to do so and proceeded with the appeal.

Need and proximity

[56] Senior counsel referred me to the supplementary precognition of Jon Garvey, expert witness for Shore Energy, dated 15 February 2011, which was the first day of the inquiry [joint bundle No 8]. The supplementary precognition was said to "address matters raised in annex B to the ZWP, the Role of Land Use Planning to Deliver Zero Waste, and the impact of that document on the subjects covered in my initial precognition, namely the need for the facility and the intended sources of waste". The first of the key points identified by Mr Garvey was that: "Need is determined on a national basis 'until there is enough waste infrastructure to deal with all waste arising annually in Scotland'"; and the second key point was that: "Need and proximity for waste management facilities should be considered strategically as the achievement of a sustainable strategy may involve waste crossing planning boundaries within Scotland" [revised annex B §§ 4.1 and 4.3]. Mr Garvey testified that these statements of policy endorsed the Shore Energy 30-mile-radius "philosophy". Senior counsel continued to the effect that the previous land use planning decisions founded on by the appellants were made under previous policy and had limited relevance. (In the absence of comment from senior counsel for the appellants I assume that the matters dealt with by Mr Garvey were placed in evidence before the reporters.)

[57] The ZWP is the policy framework for meeting the 2020 and 2025 targets, senior counsel said. There is a fourteen year (now thirteen year) window within which to meet the infrastructure deficiency. The target is a moving one: according to revised annex B, the Table 1 shortfall figures ought to be decreasing; and the figures are evolving ones because today's technology may not be the solution in ten years time. Referring to the SEPA methodology paper, "step 4", senior counsel told me that the figures presented there are the tonnages identified for alternative management [joint bundle No 13]. The total tonnage, 5,136,429 tonnes, was the figure which in "step 5" was allocated for Table 1 purposes, "waste arisings per area". The allocations are expressly stated not to represent a barrier to managing waste arisings in other areas. Senior counsel submitted that in the absence of any actual infrastructure to meet the targets it is difficult to see how the grant of planning permission can offend against the policy objective. With that introduction senior counsel formally adopted the written outline submissions for the Scottish Ministers.

[58] Referring to the ZWP, senior counsel reminded me that domestic waste is generally within the management of the public sector. Domestic waste accounts for only 15% of total waste. Imaginative solutions are required to influence the management of waste arising from other sectors. Prescriptive solutions would not work. The approach is now less prescriptive than previously with the aim of encouraging private enterprise to identify commercial opportunities to invest in and build as many waste management facilities as possible as soon as possible [joint bundle No 11, pages vii, 5, 6, 7, 11, 13].

[59] Annex B is the relevant annex to the ZWP in that it deals with the role of land use planning to deliver zero waste. Senior counsel drew my attention to the fact that the original ZWP annex B (June 2010) conspicuously omitted to have any section dealing with need and proximity [joint bundle No 11, annex B, §§ 4.10, 4.13, 4.16-4.18]. The revised annex B (February 2011) has completely new paragraphs 3.5-3.11, and a completely new section 4 "Need and Proximity" [joint bundle No 12]. Subtle changes have been made to retained text, for example paragraph 4.3 now paragraph 5.3. [I have added the underlining in this example and the example in the next paragraph.] The original paragraph read: "Additionally, as a matter of good practice, planning authorities should seek to identify opportunities that provide the best solutions locally in delivering the objectives of the Zero Waste Plan." The new paragraph reads: "Additionally, as a matter of good practice, planning authorities should seek to identify opportunities that provide the best solutions for delivering enough waste infrastructure to deal with all waste arising annually in Scotland and the objectives of the Zero Waste Plan."

[60] Another example is original paragraph 4.4 now paragraph 5.4. The original paragraph read: "A strategic development plan (SDP) should reflect that requirement [to identify sites for all types of waste management facilities] where neighbouring authorities work together to develop shared strategic waste infrastructure". The new paragraph reads: "A strategic development plan (SDP) should reflect that requirement [to identify sites for all types of waste management facilities] where all authorities work together to develop an integrated network of waste recovery and disposal installations, for all wastes, across Scotland enabling the 2025 Zero Waste Plan targets to be met." Senior counsel also invited me to compare original paragraphs 4.8, 4.11, 4.13, 4.16 and 4.17 with the altered text in new paragraphs 5.8, 5.11, 5.13, 5.16 and 5.17. He submitted that the changes encapsulate quite dramatically the move away from the idea that local solutions will achieve the targets. Policy is now target-focused. According to senior counsel it was the appellants, not the reporters, who had misunderstood or misapplied the policy when closing submissions were made at the inquiry and they had done the same in their submissions to this Court.

[61] Senior counsel referred to revised annex B paragraphs 3 and 4: the documents specified, starting with the ZWP, were to replace the previous documents including the National Waste Plan and 11 Area Waste Plans (2003). Senior counsel emphasised that the reporters had treated the development as "significant" even though the area involved, 3.6 ha, fell well short of the 10 ha threshold for the scale of waste management developments specified in the Joint Structure Plan, schedule 9, as "likely to be significant". The reporters had done this because they considered it "reasonable to regard the proposal as significant because of its strategic nature" [Appeal Decision Notice § 26].

[62] I was invited to note the terms of revised annex B paragraphs 3.9 and 3.7, in that order. I should understand, said senior counsel, that references in SPP paragraph 213 to the proximity principle were now to be understood in the context of the "Need and Proximity" section of revised annex B. NPF2 had envisaged that the requirement for certain specialist waste management facilities would be addressed at a national planning level: but, in terms of revised annex B paragraph 3.7, that approach was no longer being pursued. In terms of revised annex B all national objectives would be pursued through the national planning framework. The revised annex B approach was a less prescriptive, more open one, envisaging that developers would propose solutions to address the need identified in Table 1. Senior counsel read out revised annex B, paragraphs 3.5 to 4.11. He emphasised that "all types of waste facilities throughout the waste hierarchy" would be required "to achieve zero waste Scotland" [§ 3.8]; and that local and strategic area plans should provide for waste management development "for all wastes arising in Scotland" [§ 4.3]. According to senior counsel, the latter provision frames the development of local and area plans.

[63] According to senior counsel for the Scottish Ministers the assessment of proposals for the development of waste management facilities under the head "Need and Proximity", has to start with need, not proximity, that is area need and national need. Then, applying the proximity principle, "you ask whether there are any good reasons not to allow the proposal to meet national need". Revised annex B paragraph 4.3, first bullet point, is satisfied where a planning authority identifies land designated for cognate uses (employment, industrial, storage and distribution) as appropriate for waste management. My attention was drawn to the fact that although revised annex B section 4 is headed "Need and Proximity", the only reference to proximity within the section is in the second bullet point of paragraph 4.3 - "need and proximity should be considered strategically". According to senior counsel, this approach is entirely consistent with the less prescriptive policy: it is a perfectly understandable approach once the non-prescriptive direction of policy is recognised. The government, said senior counsel, is trying to persuade developers to identify profitable opportunities. What developers have to do is to find sites designated for waste or cognate uses and demonstrate that there are no adverse, site-specific considerations. Other regulatory levers are adverted to in paragraph 4.10. It is intended that new legislation will "drive separate collection, restrict materials for Energy for Waste and introduce landfill bans. Developers have to obtain and comply with the conditions of SEPA consents. It is for developers to "secure access to material inputs". "Securing access" means negotiating contracts in advance, according to senior counsel: developers will not invest unless they can guarantee supply to their plants.

[64] Paragraph 4.6 encourages local authorities to assess need for types of facility against the Table 1 figures. Paragraph 4.8 emphasises that "planning consent does not in itself guarantee construction and commissioning", said senior counsel. Clearly if Table 1 were to assess the shortfall against permissions granted the outlook would be more optimistic: but government does not want to have a situation, five years down the line when permissions have expired, where other development has been discouraged in the meantime and it transpires that there is actually no shortfall reduction. It is only the opening of facilities that matters. Until facilities come on stream they do not count. Senior counsel submitted that the appellants' need argument was irrelevant insofar as based on permissions granted.

[65] Senior counsel next referred me to the May 2011 addendum to SEPA's Thermal Treatment of Waste Guidelines 2009 [TTWGs]. The update is said to have been issued "to ensure that the guidelines are aligned with the Zero Waste Plan [ZWP] and the Waste (Scotland) Regulations 2011". (The regulations were signed into law on 16 March 2011 with effect from 27 March 2011.) "Paragraph 2.4 clearly states: "Section 2 of the TTWGs has been superseded." Therefore, said senior counsel nothing in section 2 of the TTWGs can prevail over revised annex B. (I note the description of the change in SEPA's role in relation to consenting: the 2011 Regulations require SEPA to ensure that any EfW recovery "takes place with a high level of efficiency".)

[66] The SEPA Guidance Notes were then reviewed by senior counsel. SEPA LUPS GU5 v3, issue date 27 April 2010, paragraph 1.2, refers to the "pressing need" to move away from landfill [joint bundle No 15 at 1]. SEPA LUPS GU5 v4, issue date 24 June 2011, paragraph 1.2, refers to the "pressing need" for waste management to become more sustainable [joint bundle No 15 at 20]. SEPA LUPS GU6 v2, issue date 25 May 2011, at paragraphs 6.1 and 6.2 [joint bundle No 15 at 45] states, quoting revised annex B (I have underlined the words emphasised by senior counsel):

"'Need and proximity for waste management facilities should be considered strategically as the achievement of a sustainable strategy may involve waste crossing boundaries within Scotland.'

This means that it is acceptable for waste arising from any location within Scotland to be treated at any waste management facility proposed within Scotland."

At this point senior counsel stated, according to my note: "I'm not saying that this is right or wrong. I'm addressing the argument that the reporters' interpretation of the proximity principle went beyond a meaning that the words could possibly bear." In answer to my question, senior counsel stated that he did not require to tell me what the policy means. For the meaning of the policy, senior counsel referred me to the supplementary precognition of Mr Garvey [paragraph 54 above; joint bundle No 8].

[67] Senior counsel next referred to NPF2 at paragraph 168 and submitted that there was a time constraint for meeting EU and national targets and that it was for planning authorities to facilitate the provision of installations to meet the targets [joint bundle No 19]. Referring to SPP at paragraph 214, senior counsel drew my attention to the statement: "A significant increase in the number, range and type of waste management installation is needed..." Senior counsel summarised the effect of the scale of the infrastructure shortfall and the time constraint by saying that there was clearly a "pressing need".

[68] In the light of the policy documents referred to, senior counsel submitted that there was no foundation for the final sentence of the paragraph 12 of the appellants' note of argument: "Scottish Government policy requires that waste should be handled as close as possible to where it is produced (the proximity principle) and that must be a factor to take into account when considering the area for assessing need." The statement has no basis in policy, beyond the disaggregated (area) figures in Table 1, for the reason that at this stage, given the scale of the need, the issue of proximity does not arise. Senior counsel continued to the effect that paragraph 14 of the appellants' note of argument stands the test on its head. The starting point, senior counsel said, has to be need; and the proximity principle is not to be considered in relation to need at all. It was not a relevant exercise to use consented developments, and minded-to-consent developments to negative need once annex B had been revised. There was no warrant in policy for using "proximity" to define "need", said senior counsel. The appellants were seeking to define "need" as if in a pre-Table 1 world. Revised annex B and Table 1 had cut the feet out from under their position. Paragraph 4.4 of the inquiry closing statement for the now appellants, which pro-rated the Table 1 allocation of needed infrastructure by population to give a figure for North Lanarkshire and then used consented developments and minded-to-consent developments in or around North Lanarkshire to negative need, was misconceived: waste facilities that actually come on stream are the only things that reduce the need.

[69] The central point in the appellants' argument, according to senior counsel for the Scottish Government, was the statement at paragraph 18 of their note of argument that revised annex B and Table 1 "do not alter the proximity principle". Paragraph 17 quoted supposedly "key passages" from various documents now making up the National Waste Management Plan, namely SPP, SEPA Thermal Treatment of Waste Guidelines 2009 and the ZWP, said to refer expressly or by implication to the proximity principle. Senior counsel called these "selective quotations"; he argued that SPP was expressly qualified by revised annex B and Table 1; and he invited me to conclude overall that revised annex B and Table 1 together "do alter the proximity principle". Senior counsel submitted on behalf of the Scottish Ministers that the inference to be drawn from the policy change from 2010 onwards was that Scotland was not achieving enough in the way of shortfall reduction and was not achieving it quickly enough: no more precise definition of policy was required "at this stage". In answer to a question from me later in the day senior counsel explained that when he said "at this stage" he meant "at this point on the timeline ending in 2025". I understood senior counsel to say that as the position on need evolved (in quantitative and qualitative terms), moving towards 2025, policy would also evolve.

[70] Senior counsel accepted that the reporters did not address, specifically, the question of need for Shore Energy's pyrolysis plant proposal, an "energy from waste [EfW]" facility [appellants' note of argument § 21]. He acknowledged that EfW was the second lowest category in the waste hierarchy. Need for EfW was not, however, a material consideration in land planning use terms. Referring to the Consultation on the proposed Zero Waste (Scotland) Regulations 2011, senior counsel submitted that EfW issues were to be addressed through the regulatory framework rather than through land use planning. It was explicit at section 9.1 that the government's intention in introducing the regulations was to restrict inputs to EfW "in order to ensure that waste management in Scotland does not move one step up the hierarchy from landfill to mass incineration".

[71] The reporters had addressed the question of proximity in relation to EfW. The reporters noted that Shore Energy's proposal concerned "the treatment of waste adjacent to a pyrolysis plant" and that "the most recent relevant interpretation which is to be found in the newly issued web based advice on renewables" was that "EfW facilities allow the proximity principle to be satisfied and are capable of producing renewable heat and energy" [Appeal Decision Notice § 18]. Senior counsel showed me that this quotation is taken from the document "Scottish Government Guidance on Renewable Energy, as at February 2011", otherwise "the web based advice on renewables" (joint bundle No 22 at 3). The reporters, senior counsel submitted, had rightly rejected both Shore Energy's 30-mile-radius catchment area and the appellants' contention that consented developments, and minded-to-consent developments in and around North Lanarkshire could be determinative of "need".

[72] The reporters were right to conclude that the transport of inputs from other areas would not breach the proximity principle "as most recently set out" [Appeal Decision Notice § 19]. The reporters also rightly understood that the SEPA attitude to the development "was entirely in tune with the approach to need and proximity as now set out in Annex B and the web based advice on renewables" [Appeal Decision Notice § 20]. It was submitted by senior counsel for the Scottish Ministers that there was no question of the reporters attempting to justify departure from government policy: on the contrary the reporters found that Shore Energy's proposal was "not at variance with the achievement of the targets for zero waste incorporated in national policy towards waste management" [Appeal Decision Notice § 21].

Integrated network of waste recovery

[73] Senior counsel then returned to the appellants' note of argument at paragraphs 24-26, "Integrated network of waste recovery". The appellants' argument was that "Scottish Government and guidance and the Structure Plan set out that an integrated network of waste recovery involves a geographical spread of intercommented facilities [sic]"; that the reporters' conclusions were not consistent with Scottish Government policy and the Structure Plan; and that the reporters did not set out any basis for not following Scottish Government policy and the Structure Plan. Senior counsel submitted that the appellants had misunderstood the present state of government policy. He submitted that at "this stage in the timeline" the government had not attempted to set out the details of "an integrated network". An integrated network was the goal. Given the magnitude of the deficiency in infrastructure provision, "one would not dream", said senior counsel, "of attempting to draw a 'hub and spoke' network". Senior counsel submitted that there was no substance in the appellants' complaint: the reporters were applying government policy, not departing from it.

The waste management process

[74] Senior counsel rejected the criticism made in paragraph 27 of the appellants' note of argument to the effect that the reporters' decision was vitiated by a misunderstanding of the proposed waste treatment processes. The misunderstanding was said to be demonstrated at paragraph 12 of the Appeal Decision Notice. Senior counsel submitted that paragraph 11 made it abundantly clear that the reporters understood the process. The reporters' findings at paragraph 11 included the following:

"... The facility could deal with 160,000te of waste although the exact composition from each of the sources will depend on the contractual arrangements with potential suppliers. The development would apply 2 distinct but related processes to the waste streams: materials recovery and fuel preparation; and pyrolysis with power generation and waste heat recovery..."

In the light of these findings, said senior counsel, it was not possible to contend that the reporters had failed to appreciate that the composition of inputs would vary depending on whether the waste was from municipal, commercial or industrial sources and depending on contractual arrangements with suppliers. The findings at paragraph 12 as to the kinds and quantities of outputs "if the facility, taken as a whole, was working to capacity" were clearly based on the outputs that could be expected from the "example waste stream" from municipal sources illustrated at section 4.1.3 of Shore Energy's planning application supporting statement [joint bundle No 3]. The composition was as found by Glasgow City Council's Waste Composition Analysis. In any event, senior counsel submitted, the fact that the reporters had used the example of municipal waste inputs to illustrate the outputs from capacity working was not material to their decision to approve the proposal and could not be a reason for quashing the decision.

The development plan

[75] Senior counsel for the Scottish Ministers submitted that the reporters' approach to the development plan from paragraph 22 of the Appeal Decision Notice onwards was entirely proper. The criticism made by the appellants that the reporters had failed to consider the proposal against the Structure Plan was misconceived [appellants' note of argument § 28]. The Structure Plan was predicated on the Strathclyde Area Waste Plan which was one of the eleven area waste plans swept aside by revised annex B paragraph 3.4.

Restriction of inputs to North Lanarkshire waste arisings

[76] The criticism of the reporters for failing to impose a condition restricting inputs to waste arisings from North Lanarkshire was, said senior counsel, also misconceived. Scottish Government Circular 4/1998 specified the criteria to be met for valid conditions, namely necessity, relevance to planning, relevance to the development in question, enforceability, precision and reasonableness in all respects [joint bundle No 23 at § 1]. Given the summary ZWP targets set out in annex A to the ZWP for achievement between 2010 and 2025 there was no possibility of the desiderated conditions meeting the Circular 4/1998 criteria. Nothing more needed to be said.

Legal principles

[77] Senior counsel for the Scottish Ministers submitted that there was no substantial difference between parties as to the applicable legal principles. He referred me to the propositions set out at paragraph 2 of the outline submissions for the Scottish Ministers, which I summarise as follows: (1) planning judgment is the exclusive province of planning decision makers; (2) applications are to be determined in accordance with the development plan unless material considerations indicate otherwise [Town and Country Planning (Scotland) Act 1997, ss. 25 and 37]; (3) the weight to be given to the development plan and to other material considerations is a matter of planning judgment which can be challenged only on grounds of irrationality or perversity; (4) it is for planning decision makers to interpret development plans and policies and the court will interfere with a planning judgment in relation to these matters only if the judgment is irrational or perverse; (5) planning decision makers should give adequate reasons for their decisions which leave the informed reader in no substantial doubt as to what the reasons were;

[78] In relation to point 4, senior counsel emphasised that there is no difference between the approach of the court to the interpretation of development plans and the approach of the Court to the interpretation of policies. He referred to the decisions in Virgin Cinema and Cuba Norte as support for this proposition [Virgin Cinema Properties Ltd v Secretary of State for the Environment [1998] PLCR 1 at 7F-9A; City of Edinburgh Council v The Scottish Ministers and Cuba Norte Ltd 2001 SC 957 at 963B-C and 964E per Lord Kirkwood delivering the Opinion of the Court]. It was accepted that more cogent reasons had to be given for departing from a policy. Senior counsel told me that there is no issue in these proceedings as to whether policy complies with the Waste Framework Directive because the policy itself is not subject to challenge: but he also accepted that regard should be had to the directive in interpreting the "proximity principle". The object of the directive in this connection, he submitted, was to restrict unnecessary transport of waste across the European Community.

[79] The Bolton case was authority for the proposition that a material consideration was one that entailed a "real possibility" that it would cause the decision maker to reach a different conclusion. If there was doubt as to whether a particular consideration would make a difference, then it cannot be said that the decision is invalid and the decision cannot be quashed by the court. The development plan was a mandatory consideration to be taken into account in terms of the statute [Bolton MBC v Secretary of State for the Environment and Anr
[1991] 61 P & CR 343 at 352-353 per Glidewell LJ with whom the other members of the Court of Appeal agreed.] Mr Thomson QC moved me to refuse the appeal.

Submissions for Shore Energy, second respondents

[80] Mr Mure QC, senior counsel for Shore Energy, second respondents, adopted the submissions made by Mr Thomson QC for the Scottish Ministers and made additional submissions. Mr Mure QC invited me to refuse the appeal. He made two preliminary points. First, he reminded me that the Scottish ZWP is part of the United Kingdom's implementation of the Waste Framework Directive 2008/98/EC which by article 28 provides that: "The waste management plans shall set out an analysis of the current waste management situation in the geographical entity concerned, as well as the measures to be taken to improve environmentally sound preparing for re-use, recycling, recovery and disposal of waste and an evaluation of how the plan will support the implementation of the objectives and provisions of this Directive."

[81] Secondly, senior counsel for Shore Energy emphasised that the ZWP is predicated on the proposition that the market is to deliver the operational capacity to secure implementation of the directive. The state is not to finance or build the waste management facilities concerned and the financial risks are to be borne by the private sector. At the end of the day getting funding is the key. One reason consented developments have not gone ahead is because they have not attracted funding.

[82] Referring to Shore Energy's planning application supporting statement, senior counsel underlined that the proposals are for a dual-function waste management facility comprising (1) materials recovery and fuel preparation and (2) pyrolysis with electricity generation [joint bundle No 3 § 4.1]. It is a condition of the permission granted by the reporters that inputs are to be capped at 180,000 tonnes including an allowance for pre-processed bio-fuel [Appeal Decision Notice condition 19]. The appellants were double counting when they suggested adding WfE inputs to unsorted waste inputs to calculate total inputs of 240,000 tonnes. It is in the interests of the operators to bring onto the site waste that can be used as fuel. Waste has to be pre-treated before it is submitted to pyrolysis. In answer to a question from me, Mr Mure QC stated that pyrolysis is not incineration; and that the process is controlled by SEPA.

[83] Senior counsel continued to the effect that all parties accept that there is bound to be variability in the composition of inputs. The "mass balance" exercise described in the supporting statement, section 4.1.3, was indicative, as stated in terms, on the basis of the Glasgow Waste Composition Analysis. In assessing the environmental impact it was proper to look at the maximum output based on the maximum inputs now capped at 180,000 tonnes. The agreement with Shanks to take 60,000 tonnes of waste from their transfer facilities in the central belt gave a sense of how the Carnbroe proposal would fit into the network [joint bundle No 10 § 3.4]. An advantage of the present proposals was that they involved two processes on one site. The reporters recognised the co-location of the processes as assisting in the delivery of "an integrated network" and as allowing the proximity principle to be satisfied [Appeal Decision Notice §§ 17-18]. Referring to the Scottish Government Guidance on Renewable Energy (February 2011), senior counsel submitted that the existence of a good road network adjacent to the site was a favourable consideration [joint bundle No 22, 4 "Preferred Locations"]. The reporters well understood the processes involved in the application, as indeed did the appellants' officials [joint bundle No 4, Report to Committee, 15 February 2010].

[84] Senior counsel moved to address the question of "existing capacity". Developments required both planning permission and regulatory consent from SEPA. Senior counsel pointed out that the Table 1 figures used to determine need "are linked to operational infrastructure, not consents granted" [joint bundle No 12, revised annex B § 4.8]. The appellants had granted consent subject to conditions for the development of a waste to heat and energy facility and recycling plant on the site of a former open cast coal site at Drumshangie, Greengairs, North Lanarkshire. He told me that the Drumshangie consent was three years old but there had still been no operational development and no regulatory consent from SEPA.

[85] I was referred to the Report to Committee, 14 April 2009, in relation to the Drumshangie proposal. The proposal was described as "a regional waste facility that would aim to source municipal and commercial waste from 7 surrounding local authority areas of North Lanarkshire, East Dunbartonshire, Falkirk, Glasgow, South Lanarkshire, Stirling and West Lothian" with the following features [joint bundle No 25, § 1.9]:

"A mixture of municipal and commercial waste would be processed at the plant. The MRF [Materials Recovery Facility] would sort mixed solid wastes which have not undergone previous segregation for recycling purposes. The plant would be large enough to handle waste up to 350,000 tonnes per annum and it is envisaged that approximately 50,000 tpa of this would be recycled with the residual waste of up to 300,000 tpa then incinerated in the EfW plant. The EfW facility is designed to convert waste into useful energy in the form of heat and electricity. Such plants are generally referred to as Combined Heat and Power (CPH) units where heat is extracted from steam turbines and is then pumped to heat users via a District Heating System. The Thermal capacity of the plant would be approximately 108MW with an electricity generating capacity of approximately 37MW. The electricity generated by the EfW operation would support all on site requirements with excess fed to the National Grid."

Senior counsel argued that the Drumshangie ratio of one-seventh of total inputs going to EfW was far less efficient than the Carnbroe proposal, yet the Drumshangie proposal was granted permission.

[86] Paragraph 24 of the Appeal Decision Notice summarised the effect of the development plan (comprising the Glasgow and Clyde Valley Joint Structure Plan, 2008, and the Monklands Local Plan, 1995). The overall intent was clear, namely to guide development to appropriate locations. If the appellants' strategy were plan led, why, senior counsel asked, were approvals not required to await identification of sites in the relevant plans [cf. Appeal Decision Notice § 23]? Senior counsel referred to the list of proposed waste management developments in the closing submissions for the appellants [joint bundle No 9 at § 4.2]. Drumshangie was on the list. The other plants listed only dealt with energy from waste. The North Ayrshire Irvine Gasification plant had been consented since 2007 and there was still no operational development. I understood him to say that there had been no debate as to whether that proposal would meet the disaggregated (area) or aggregated (national) need figures.

[87] Because the ZWP revised annex B was issued the day before the inquiry both sides had to change their approach at the last minute. Shore Energy's 30-mile-radius catchment area was not a final position. The addendum to SEPA's Thermal Treatment of Waste Guidelines 2009 clearly recognised the change in policy direction [joint bundle No 14]. The subsequent SEPA guidance was of assistance in underlining the change in policy and in demonstrating that the reporters had identified the correct approach [joint bundle No 15]. The SEPA consultation responses showed that even before the change in policy, SEPA was content with the Carnbroe proposal [joint bundle Nos 16 and 17]. The appellants' focus on need in their own council area, North Lanarkshire, was a forlorn approach in light of the change in policy.

[88] Senior counsel submitted the new direction of policy was not intended to allow local planning authorities to focus on need in their own areas - very much the reverse. The emphasis was on the aggregated (national) need figures and on encouraging local planning authorities to plan for closing the infrastructure capacity gap demonstrated by those figures. The approach of local planning authorities was not to be prescriptive because it was for the market to develop the network. If the government had identified the national need without imposing a national solution it could not be right for local authorities to prescribe what mix and location of facilities was required to fulfil the national need. The concept of national need was entirely clear from revised annex B paragraphs 5.3, 5.4, 5.8, 5.11, 5.13, 5.16 [joint bundle No 12]. For example, paragraph 5.11 stated: "Applications must be assessed against the national need for facilities as detailed in section 4."

[89] Senior counsel explained that the ZWP annex A lists interim targets in the table at section 13 [joint bundle No 11]. Progressive imposition of landfill bans was one of the government's legislative aims [joint bundle No 18]. Against this background the National Planning Framework [NPF2] made clear that: "Additional facilities for the treatment and recycling of municipal, commercial and industrial wastes are urgently needed" [joint bundle No 19 § 27]. Under the "Economic Opportunity" heading the ZWP list of immediate priority actions included: "Provide market confidence to enable businesses to invest in innovative resource management infrastructure" [joint bundle No 11 at 7 and 13]. Senior counsel submitted that the national network of waste management facilities would never be developed if the principles of need and proximity were implemented in the way which the appellants contended for.

Submissions in response for North Lanarkshire Council, the appellants

[90] I gave Mr Armstrong QC, senior counsel for North Lanarkshire Council, the appellants, an opportunity to respond to the submissions for the first and second respondents. According to Mr Armstrong QC the approach now advocated on behalf of the Scottish Ministers was not the approach adopted at the inquiry by either the appellants or Shore Energy, nor was it the approach adopted by the reporters.

[91] Senior counsel for the appellants submitted that the revised annex B had not been consulted on from which it must be inferred that no significant policy change was intended. The Waste Framework Directive 2008/98/EC article 4.2 provided that: "Member States shall ensure that the development of waste legislation and policy is a fully transparent process, observing existing national rules about consultation and involvement of citizens and stakeholders." Accordingly the starting point for the planning assessment had to be the relevant Strategic Development Plan Area identified in Table 1, namely the Glasgow and Clyde Valley Strategic Development Plan Area. From that starting point regard might also be had to neighbouring local authority areas not within the Strategic Development Plan Area. (In this connection I noted that the Drumshangie proposal was intended to source waste from among other places Falkirk, Stirling and West Lothian.) As was submitted at the inquiry on behalf of Shore Energy, the witnesses were agreed that "the proximity principle is a principle, not a rule". It had been submitted for Shore Energy that there was a need based on either the Table 1 Strategic Development Plan Area infrastructure capacity shortfall of 1,150,000 tonnes or on the 30-mile-radius area capacity shortfall calculated to be 1,560,000 tonnes [joint bundle No 10, Shore Energy Closing Submission § 4.2; §§ 3.1-3.3].

[92] Senior counsel referred to the "clues" to the change in direction of policy said to be contained in, for example, paragraphs 4.3, 4.4 and 4.8 of the revised annex B. The reporters had not drawn the conclusions from this material which the Scottish Ministers now draw. Senior counsel asked: "If there was a radical change, why not amend the SEPA's Thermal Treatment of Waste Guidelines 2009, National Planning Framework 2 [NPF2], Scottish Planning Policy [SPP], Planning Advice Note 63 [PAN63]?" The treatment of the proximity principle in the context of section 4 of revised annex B had similar wording to paragraph 5 of PAN63 and SPP. There was nothing new in paragraph 4.3 of revised annex B which was not already in SPP at paragraph 216.

[93] Referring to the Appeal Decision Notice, paragraph 18, senior counsel drew my attention to the fact that the reporters stated: "The basis for the proximity principle is to be found variously in Scottish Planning Policy, the annex to Planning Advice Note 63 and the Scottish Environmental Protection Agency's 2009 Thermal treatment of waste guidelines." Senior counsel submitted that paragraph 18 evidences that the reporters "weren't thinking about disaggregating Table 1". He continued that revised annex B did not state that the proximity principle was to be applied by disaggregating the Table 1 figures; and that revised annex B did not say - and neither did the reporters - that the proximity principle was to be applied on a Scotland-wide basis. (If I have correctly noted this submission, I am not sure that I necessarily understand it: when senior counsel for Shore Energy talked about "disaggregation" I understood him to mean breaking down the national figure to produce the thirteen area figures shown in Table 1. It may be that senior counsel for the appellants was talking about "disaggregating" the thirteen area figures given in Table 1 to produce local figures for the 32 Scottish local authorities referred to in paragraph 18 of the Decision Appeal Report; or it may be that he meant that "revised annex B did not state that the proximity principle was to be applied by aggregating the Table 1 figures".)

[94] Senior counsel submitted that democratic accountability was built in to the plan-led approach. Revised annex B at paragraph 4.4 referred to "a high level framework for local discussions". Caution should be exercised in comparing the paragraphs of the original and the revised annex B.

[95] Senior counsel returned to the case of Gransden v Secretary of State for the Environment [1987] 54 P & CR 86 which he submitted was support for the proposition that a change of policy cannot turn a matter which is otherwise a material consideration into an irrelevant consideration [at 93-94]. The Bolton case laid down that it was for the Court to decide what matters are material, that is what matters are "fundamental to the decision" [Bolton MBC v Secretary of State for the Environment and Anr
[1991] 61 P & CR 343 at 352-353 per Glidewell LJ with whom the other members of the Court of Appeal agreed]. The other parties, said senior counsel, did not dispute this. The Glasgow and Clyde Valley Joint Structure Plan (2008) Strategic Policy 9 may have been superseded by the ZWP but Strategic Policy 10 still required an assessment of "specific locational need" to be made and that matter had not been dealt with by the reporters.

[96] Various SEPA guidance documents had been referred to in submissions, said senior counsel, but these were not before the inquiry and there was no indication that the reporters had taken them into account. In any event SEPA LUPS GU6 v2, issue date 25 May 2011, stated at paragraph 7.1 [joint bundle No 15 at 45]:

"The ZWP establishes that there is a need for new waste management infrastructure to be provided until there is a national annual capacity available to meet the targets set out in the ZWP. The consideration of "need" for a waste management facility will be undertaken by the Planning Authority in accordance with the detailed guidance set out in Annex B of the ZWP."

In addition section 5 of revised annex B emphasised the role of local planning authorities in terms of the Planning etc (Scotland) Act 2006 "in delivering a genuinely plan-led modernised planning system".

[97] The advice given by revised annex B was to the effect that the existence of planning consents for waste management facilities is not necessarily determinative of need because consents of themselves do not guarantee operational development: but this does not go so far as saying that the existence of consents is an irrelevant factor in the assessment of need [joint bundle No 12 § 4.8]. Senior counsel added that the findings in paragraph 12 of the Appeal Decision Notice which addressed the question of the capacity of the facility taken as a whole had a knock on effect in relation to other matters, for example transport: "the more waste outputs you have", said senior counsel for the appellants, "the more biofuel inputs you have to have". Mr Armstrong QC on behalf of the appellants moved me to allow the appeal.

Discussion and decision

Need and proximity

[98] The appellants refused Shore Energy's proposal for the Carnbroe site against the recommendation of their officials. The first thing that has to be said is that the primary reason for refusal has not been supported at the inquiry or in this appeal by senior counsel for the appellants, Mr D Armstrong QC, and rightly so in my view. The primary reason for refusal was that because there was no need for a facility of the proposed type and scale to deal with the local waste management requirements of North Lanarkshire, the proposal was contrary to the Area Waste Plan. The appellants' position at the inquiry and in this appeal is that "the proximity principle must be considered in the context of thinking strategically and across local planning boundaries and the new approach to assessing need". The reporters agreed with this approach although they interpreted it more widely, I suspect, than senior counsel for the appellants intended [Appeal Decision Notice § 18]. The justification for refusal on the basis of North Lanarkshire's particular need therefore falls away and with it the justification on the basis of the Area Waste Plan disappears too. The Area Waste Plan justification also falls away for the separate reason that the Area Waste Plan is one of the superseded policy documents that "must not now be considered as material considerations or used to inform planning decisions or waste capacity requirements" [Appeal Decision Notice §§ 7 and 26]. The reporters' conclusion on this matter is not contested.

[99] The appellants have not abandoned the idea that need must be referable to some defined area less than the whole jurisdiction. They have re-cast it. Central to the appellants' current approach is the proposition that an assessment of need for planning permission purposes necessarily involves considering the relevant area to be served by the proposed development and the extent to which the need is met by other developments actual and proposed. I cannot say that this is illogical. Assuming that the need assessment area is the Glasgow and Clyde Valley Area Structure Plan Area then the appellants might seem to have a respectable argument that some weight ought to be attached to existing, consented and minded-to consent developments within the area. The argument bears to have been rejected by the reporters on the basis that whether or not existing and potential developments in the area would be "sufficient to meet the requirements for the management of waste arisings in North Lanarkshire" could not be determinative on the basis of "the proximity principle as most recently set out". [Appeal Decision Notice § 19]. In my view the reporters' were correct.

[100] The ZWP revised annex B clearly states, under the heading "Need and Proximity", at paragraph 4.1: "The Scottish Government considers that the requirements set out in Article 16 (1) of the revised Waste Framework Directive [2008/98/EC] will be met when there is enough waste infrastructure to deal with all waste arising annually in Scotland." Article 16 is the article that sets out the waste management principles of "self-sufficiency" and "proximity". On its own this statement of policy is capable of supporting the view that the need for facilities is to be measured against the national infrastructure shortfall. My initial impression was, however, that this statement became highly equivocal once reference was made to Table 1 attached to revised annex B. On the basis of Table 1 I took the view initially that there was indeed scope for argument about the rationality of the reporters' approach and whether the meaning assigned by the reporters was one which the policy was capable of bearing.

[101] Paragraph 4.5 of revised annex B states of Table 1 that it "sets out the national shortfall in the operational capacity of waste management infrastructure required to meet the Zero Waste Plan targets in 2025." So far so good, except for the fact that Table 1 does not state the national shortfall or aggregate figure; and paragraph 4.5 continues: "To ensure that all authorities collectively plan for waste management facilities to meet the requirements of the Zero Waste Plan the shortfall is allocated to groups of local authorities or development plan areas." The natural reading seemed to me to be that the thirteen listed areas are the relevant need assessment areas. North Lanarkshire is in the Glasgow and Clyde Valley Strategic Development Plan Area. On closer reading however it does seem that the policy envisages distinct and complementary land use planning roles for authorities in relation to area needs on the one hand and national needs on the other, or "disaggregated" and "aggregated" needs respectively. In terms of paragraph 4.4 local authorities are to plan proactively to provide facilities to deal with waste produced within their own development plan areas, that is to address area need. In preparing development plans, planning authorities are also required to identify and allocate sites appropriate for treatment of all wastes arising in Scotland, that is to address national need. I understand this to be the meaning of paragraph 4.3; and the necessary implication is that permission for particular development proposals cannot be refused simply on the basis that area need is adequately provided for whether by existing facilities or a combination of existing facilities and potential developments. I disagree with senior counsel for the appellants that there is nothing in paragraph 4.3 which is not already in SPP paragraph 216: the latter contains no reference to "all wastes arising in Scotland".

[102] My understanding of the meaning of paragraphs 4.3 and 4.4 read together is that the identification and allocation of sites to meet the national need and the "strategic" consideration of need and proximity are to provide the "high level framework" for proactive planning to provide facilities to deal with waste produced in individual development plan areas. Thus, paragraph 5.3 states:

"... as a matter of good practice, planning authorities should seek to identify opportunities that provide the best solutions for delivering enough waste infrastructure to deal with all waste arising annually in Scotland and the objectives of the Zero Waste Plan. As a context for framing local discussion around the need for waste facilities:

·                    Table 1 sets out the Additional Operational Waste Management Infrastructure Capacity Required to meet the Zero Waste Plan Targets;

·                    Table 2 provides a threshold for 10 years national rolling capacity of landfill which must be maintained."

Paragraph 5.4 continues the theme that development plans must identify appropriate locations "allocating where possible specific sites". Strategic development plans should "reflect that requirement where all authorities work together to develop an integrated and adequate network of waste recovery and disposal installations, for all wastes, across Scotland enabling the 2025 Zero Waste Plan targets to be met". Paragraph 5.8 talks of "the national approach to proximity and need". Paragraph 5.11 instructs planning decision makers that:

"[Planning] applications must be assessed against the national need for facilities as detailed in Section 4. In this way, consideration will be given to the role the proposal would play in delivering the required national capacity and its contribution towards the delivery of the Zero Waste Plan."

I think this puts the matter with reasonable clarity, notwithstanding the interpretative challenges involved in referring back to section 4.

[103] A document available to the reporters and one on which they apparently placed reliance was the "web based advice on renewables" listed in the joint bundle as Scottish Government Guidance on Renewable Energy, as at February 2011 [joint bundle No 22]. This document is quoted at various points in the Appeal Decision Notice as follows:

"14. Moving on from there, an amendment to the web based advice on renewables was issued contemporaneously with the clarifications embodied in the revised Annex B of the Zero Waste Plan. Both confirm that the requirements of the EU Directive will be met when there is enough infrastructure to deal with all waste arising annually in Scotland with any imports to the country broadly balancing exports..."

[...]

16. The web based advice on renewables confirms that the key driver for encouraging EfW facilities (which include the pyrolysis element of the development) is the content of the European Directive. This has established the principles of self-sufficiency and proximity, and requires member states to establish an integrated and adequate network of waste recovery and disposal installations. The web based advice makes clear that the Scottish Government considers that these principles will be met when there is enough waste infrastructure to deal with all waste arising annually in Scotland."

[...]

18. ... In this case, which concerns the treatment of waste adjacent to a pyrolysis plant, we rely also on the most recent relevant interpretation which is to be found in the newly issued web based advice on renewables. This includes the statement that: EfW facilities allow the proximity principle to be satisfied and are capable of producing renewable heat and energy.

[...]

20. The Scottish Environment Protection Agency's original letter of objection to the proposed development was dated 23 October 2009. That objection was withdrawn on 12 November 2009 subject to the imposition of conditions on any grant of planning permission. The confirmation of the withdrawal of the objection for the reasons given by the Scottish Environment Protection Agency in its letter of 17 January 2011 to the reporters is entirely in tune with the approach to need and proximity as now set out in Annex B and the web based advice on renewables."

There are other references to the web based advice at paragraphs 30 and 54 of the Appeal Decision Notice.

[104] An important passage in the web based advice is at page 3 of the print out, paragraph headed "Key Driver for Encouraging EfW facilities":

"Article 16 of the European Directive, the Revised Waste Framework Directive 2008/98/EC, establishes the principles of self-sufficiency and proximity and requires member states to establish an integrated and adequate network of waste recovery and disposal installations. The Scottish Government considers that these principles will be met when there is enough waste infrastructure to deal with all waste arising annually in Scotland. These drivers, along with Scottish Government targets for reducing emissions, producing electricity and heat from renewable sources, directly place an obligation on planning authorities to consider suitable sites and to develop supportive planning policy for EfW facilities. EfW facilities allow the proximity principle to be satisfied and are capable of producing renewable heat and electricity."

[105] I appreciate that the web based advice may not amount to "policy" as such: but it is at least a significant interpretation of policy. In my opinion the reporters cannot be faulted for attaching to the policy the meaning attributed in the web based advice. Also, in my view, it would not be realistic for me in assessing the adequacy of the reporters' approach to disregard guidance which casts light on the intent of government policy even though issued subsequent to the reporters' decision. SEPA LUPS GU6 v2, issue date 25 May 2011, commenting on the revised annex B "Need and Proximity" section, paragraphs 4.1 and 4.3, states that: "... it is acceptable for waste arising from any location within Scotland to be treated in any waste management facility proposed within Scotland."

[106] On my understanding of government policy, it cannot be said that area need and area provision, including potential provision, will in all cases necessarily be irrelevant considerations: but certainly they cannot be solely determinative while a significant national shortfall persists; and given the scale and urgency of the national need for all types of facilities, confirmed by the reporters, the reporters were well entitled to attach no weight to the area need figure and to the facilities potentially available to meet that need. They were well entitled to treat these matters as irrelevant in this case. The reporters' approach was expressly authorised by paragraph 4.8 of revised annex B:

"It is important that the planning system recognises that the market will be key to infrastructure delivery, and that planning consent does not in itself guarantee construction and commissioning. This is why figures used to determine need are linked to operational infrastructure, not planning consents granted."

I disagree with senior counsel for the appellants that revised annex B does not represent a new policy direction. The meaning assigned to the new policy by the reporters as I understand it is that the need assessment area is, or at least that one of the relevant need assessment areas is, Scotland as a whole. The policy is quite capable of bearing this meaning. It was entirely reasonable for the reporters to treat national need as a material consideration and, in this case, as the determining consideration subject to any site-specific objections.

[107] Accordingly, I reject the submission for the appellants that the reporters departed from government policy; and I find that accordingly no question arises as to whether the reasons given by the reporters for departing from policy are intelligible. I find that the reporters' reasoning as to the interpretation and application of government policy is lucid. In essence the reporters decided the appeal on the basis that there was a need for the proposed development in national terms and that site-specific, locational objections were not of sufficient weight to justify refusal.

[108] I do not accept that the reporters failed to have regard to the proximity principle as a material consideration. They had regard to the proximity principle so far as recognised by relevant policy. A feature of the new national policy direction is that it subordinates the proximity principle to need and even tends to drain the proximity principle of content. The questions whether Scottish Government policy on waste management represents appropriate implementation of Directive 2008/98/EC article 16 and whether there has been proper consultation in connection with the change of policy direction, including whether there has been compliance with Directive 2008/98/EC articles 4.2 and 31 as regards public participation in policy formation, are not questions for my determination within this appeal process.

Integrated network of waste recovery

[109] I agree with the reporters, on the basis of the documents that I have been shown, that there is no "definitive guidance on what amounts to an integrated network of waste recovery"; and I disagree with Mr Armstrong QC for the appellants if or to the extent that he suggested that there is "definitive" guidance. I think that Mr Thomson QC was right when he submitted that the establishment of a network is a policy goal. The element of futurity is present in Directive 2008/98/EC article 16 when it talks about the network being designed to enable the Community as a whole to "become" self-sufficient in the disposal and recovery of waste. The word "integrated" implies a relationship between the parts and the reporters have found, not unreasonably in my view given the description of the proposal, its sources of waste supply and its exports of treated waste, that the Carnbroe development will be some part of a network of waste management facilities; and that the existence of two interdependent facilities within the Carnbroe proposal itself "assists in the delivery of an integrated network". In addition and separately I take the view that given the current scale of the infrastructure shortfall, the proper question is not so much whether it can be shown that the proposal will form part of a network but rather whether it is clear that the proposal is incapable of being part of the desiderated "integrated network". I take the view that the "network" consideration could only be determinative against granting permission "at this stage", if the proposal were demonstrably incapable of being integrated with other facilities.

The waste management process

[110] I do not accept the submission made on the appellants' behalf that the reporters have misunderstood the process. On a reasonable reading of paragraph 11 of the Decision Appeal Notice, the reporters well understood that the composition of waste inputs to the development would vary. The question is whether the quantification of outputs at paragraph 12, on the assumption that "the facility, taken as a whole, was working to capacity", represents a material error that vitiates the decision. In my view it does not; and in particular it does not vitiate the reporters' assessment of the traffic generation implications.

[111] As I read paragraph 12 the information given there is intended to illustrate the process outputs in the context of the reporters' discussion of "the need for the facility (taking into account the proximity principle)". The salient points identified by the reporters in relation to need include the need to divert waste from landfill to other treatments "as high up the waste hierarchy as possible". The figures presented at paragraph 12 illustrate, among other things, the potential of the proposed facility to process 180,000 tonnes of unsorted waste so that the amount going to landfill is 17,000 tonnes. The figures are taken from Shore Energy's planning application supporting statement, section 4.1.3, pages 29 to 32. The figures for "solid outputs" - 57,000 tonnes a year made up of 32,000 tonnes of recyclates, 17,600 tonnes of solid waste to landfill and 8,000 tonnes of "char" - are clearly stated in the supporting statement to be "predicted" and are, equally clearly, derived from the "example waste stream" which is presented "for indicative purposes". Shore Energy's supporting statement gives emphasis to the following qualification: "Commercial and industrial waste composition has not been included in this example due to its highly variable nature". The context includes the fact, as submitted by Mr Mure QC for Shore Energy, that the appellants' own officials analysed the supporting statement figures in their report to committee and stated in terms that "the actual process outputs would be determined by the composition of the inputs, therefore these figures are indicative..." They also stated that the composition of the feed to the pyrolysis process "would be subject to the composition of materials received". I therefore do not accept that there could have been any misunderstanding by the reporters that the quantities of outputs would vary.

[112] The issue of "traffic generation and highways impact" was dealt with separately by the reporters at paragraphs 34 to 39. The reporters do not appear to have derived any conclusion as to traffic flows from the indicative figures for solid outputs to be exported from the site given at paragraph 12. It appears that the reporters weighed the merits of detailed arguments on traffic generation. The argument presented on behalf of the now appellants is to be found under the heading "Transport" at paragraphs 6.1 to 6.5 of the typed closing statement on behalf of North Lanarkshire Council [joint bundle No 9]. The reporters reached the conclusion that: "Even on the worst case scenarios postulated by the council at the inquiry we find that the increase in traffic generated by the proposed development would not have a significant impact on either traffic congestion or road safety" [Appeal Decision Notice § 38]. This finding has not been challenged.

The development plan

[113] In terms of the Town & Country Planning (Scotland) Act 1997 s. 37(2) the provisions of the development plan, so far as material, are a mandatory consideration in relation to the determination of planning applications. The only parts of the development plan put in issue in this appeal were Strategic Policies 9 and 10 of the Glasgow and Clyde Valley Joint Structure Plan (2008). Paragraph 26 of the Appeal Decision Notice addresses, principally, the issue of conformity with Structure Plan Strategic Policy 9 and finds that Policies 9A(vii) and 9B(vii), which relate to waste management, have been overtaken by events including changes in the national policy framework and technical innovations. The reporters concluded that Shore Energy's proposals were consistent with or did not materially conflict with the relevant parts of Strategic Policy 9. Mr Armstrong QC for the appellants, when responding, accepted the point made by Mr Thomson QC for the Scottish Ministers that Strategic Policy 9 had been superseded by the ZWP so that this ground of appeal at the end of the day was restricted to the submission that an assessment of "specific locational need" had to be made in terms of Strategic Policy 10 and that the reporters had failed to make the assessment or had failed to give an intelligible reason for not doing so.

[114] I reject this submission. Paragraph 72 of the Appeal Decision Notice addresses the question of the application of Strategic Policy 10, which relates to the justification for proposals that fail to meet the Strategic Policy 9 criteria. Justifications include, at Strategic Policy 10A(v), "specific locational need". The reporters considered that Strategic Policy 10 did not come into play for the reason that since Strategic Policy 9 did not apply, because it had been superseded, Shore Energy's proposal could not fail against the Strategic Policy 9 criteria. The reporters' approach was logical in my view.

[115] The reporters did however go on to assess the proposals on the hypothesis that Strategic Policy 10 had been found to apply. Applying their planning judgment the reporters discerned that the intention underlying Strategic Policy 10 as a whole, namely to prevent inappropriate development, would be satisfied having regard to three factors, namely (1) "the need identified and the benefits to zero waste of meeting that need", (2) "the suitability of the location and site for the proposal" and (3) "the limited impacts arising". The reporters also believed that these three factors could reasonably be used to justify the proposal against the Strategic Policy 10A(v) criterion of specific locational need. The reporters concluded: "Even if the proposal failed to meet the requirement of [strategic policy 10], we believe that the 3 factors constitute powerful material considerations which, in themselves, would allow the proposal to be approved and the terms of the policy set aside." My own view is that a "specific locational need" finding cannot reasonably be supported on the basis of the factors referred to by the reporters: but I cannot see that the reporters were in error in finding that these factors would justify departing from Strategic Policy 10, were it to apply; and, of course, I also agree with the reporters that Strategic Policy 10 does not apply. Accordingly, in my view, the reporters made no error in relation to the consideration that they were bound to give to the development plan.

Restriction of inputs to North Lanarkshire waste arisings

[116] I also take the view that there was no error on the part of the reporters in rejecting the request to impose a condition restricting inputs to North Lanarkshire waste arisings. The matter is dealt with at paragraph 72 of the Appeal Decision Notice. It would have been irrational, if not destructive of the permission granted, to authorise Shore Energy's development on the basis that it addressed a national need and at the same time to restrict inputs to waste from local sources. Senior counsel for the appellants correctly identified that there was an absence of explanation elsewhere in the Appeal Decision Notice, at least in express terms, as to "why compliance with the National Waste Management Plan and in particular, the Zero Waste Plan, precludes the possibility of imposing a condition which restricts the plant to receiving waste arisings from North Lanarkshire". On the other hand the explanation is implicit in the terms of paragraphs 15 and 19 and, taken as a whole, those paragraphs give a fair indication of why Scottish Government waste management policy was thought by the reporters to preclude imposing the restriction. The informed reader would have no difficulty in understanding the reporters' reasoning. For completeness I should say that I have been unable to find a restriction on the source of waste arisings in the Drumshangie permission; and the Oxwell Mains permission, which does have a restriction, was granted before the introduction of the new National Waste Management Plan.

Decision

[117] I am satisfied that the reporters' decision was within the powers of the 1997 Act and, having rejected the appellants' submissions, it follows that I am bound to refuse the appeal. In so doing I acknowledge the assistance given by counsel, including senior counsel for the appellants who, notwithstanding that I have found his submissions to be unsuccessful at the end of the day, made a valuable contribution to my understanding of the issues. All questions of expenses are reserved.