Neutral Citation Number: 2013 EWHC 733 (Admin)
Case No: CO/11788/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT AT MANCHESTER
HIS HONOUR JUDGE STEPHEN DAVIES SITTING AS A JUDGE OF THE HIGH COURT
Manchester Civil Justice Centre,
1 Bridge Street West, Manchester M60 9DJ
Date: 28 March 2013
IN THE MATTER OF AN APPLICATION UNDER SECTION 288 OF THE TOWN AND COUNTRY PLANNING ACT 1990
- and -
(1) SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
(2) DERBY CITY COUNCIL
(3) RESOURCE RECOVERY SOLUTIONS (DERBYSHIRE) LIMITED
Zack Simons (instructed by Richard Buxton Environmental and Public Law,
Solicitors, Cambridge) for the Claimant
Jonathan Moffett (instructed by Treasury Solicitor's Department, London)
for the First Defendant
The Second Defendant did not appear and was not represented
Martin Kingston QC & Richard Kimblin (instructed by
Addleshaw Goddard LLP, Solicitors, Manchester) for the Third Defendant
Hearing date: 15 March 2013
I direct that pursuant to CPR PD 39A paragraph 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
His Honour Judge Stephen Davies.
1. In this case the claimant, Dorothy Skrytek, seeks to challenge a decision made on 21 September 2012 by Mr Alan Robinson, a planning inspector appointed by the first defendant, by which he allowed an appeal brought by the third defendant against a decision to refuse planning permission for a proposed waste treatment facility in Sinfin, Derby.
2. In short, the third defendant's proposal was to treat municipal solid waste (principally domestic waste and thus sometimes also referred to as "black bag waste") by a process which enabled energy to be recovered from the waste treatment operation. Without going into unnecessary detail the process involved: (a) the initial extraction of recyclable content from the waste; (b) the application of mechanical biological treatment ("MBT") and advanced conversion technology ("ACT") processes to produce a gas which could then be used to; (c) incinerate the remaining waste. The process of incineration would of course produce heat, which could then be used to heat water and produce steam which itself could then be used to generate a turbine and produce electricity sufficient to power some 14,000 homes. There was also the facility for residual heat to be used, once the plant was up and running, to secure contracts with local businesses to export residual heat in the form of steam or hot water for their use, thus converting the facility from an "electricity only" energy recovery facility to a "CHP" (short for Combined Heat and Power) energy recovery facility. This potential further use was particularly important because it would, if implemented, increase the energy efficiency of the waste treatment facility.
3. In summary, the third defendant was putting forward the proposal as being consistent with applicable planning policy in relation to waste treatment planning strategy, namely to promote proposals resulting in zero growth of all forms of controlled waste by 2016 and, importantly for present purposes, resulting in the treatment of waste higher up what is known as the "waste hierarchy".
4. There were those who disagreed with the third defendant's view of its proposal. Thus the planning application was objected to by a number of persons including the claimant, who is a co-ordinator of the Derby Friends of the Earth group, and who represented that group in its participation in the planning inquiry. She is also a member of "Sinfin, Spondon and All Against Incineration" ("SSAIN"), which also participated in the inquiry. Her position, in common with the other objectors was that the proposal was not consistent with waste treatment planning policy, because incineration lies at the bottom of the waste hierarchy and, thus, is little better than the traditional practice of disposal of waste to landfill sites.
5. There were many other grounds of objection additional to this one but, since the inspector's rejection of them has not been challenged on this application I need not refer to them. Furthermore, although also irrelevant to my decision on the instant challenge, I should for completeness record that this planning process has already had a protracted and unfortunate history. Thus the application was made in May 2009, refused in January 2010 and, following a 12 day public inquiry, that refusal was upheld on appeal in November 2010. However the third defendant's application to the High Court against that decision was itself upheld by Nicola Davies J sitting in the Administrative Court in Birmingham in a decision given in July 2011 (reported as Resource Recovery Solutions (Derbyshire) Ltd v The Secretary of State for Communities and Local Government  EWHC 1726 (Admin)). The result of that was a remission to a new inspector, Mr Robinson, who conducted a further 10 day public inquiry and who produced the decision the subject of the current challenge in September 2012. It was this challenge, issued in the Administrative Court in Manchester in November 2012, which has proceeded to the present hearing.
6. In paragraph 48 of his decision the inspector, disagreeing with the objectors, concluded that:
"... The proposal meets the requirement of RP Policy 38 for the management of waste to be taken up the waste hierarchy as defined in WS2007"
(I should explain that: (i) RP Policy 38 is shorthand for Policy 38 of the East Midlands Regional Plan issued March 2009, which forms part of the applicable statutory development plan; (ii) WS2007 is shorthand for "Waste Strategy for England 2007", a DEFRA publication describing the current policy for waste management in England.)
7. In short, the claimant contends that the inspector erred in law in that he misconstrued and/or misapplied the waste hierarchy policy, by failing properly to interpret the definitions of "recovery" and "disposal" of waste as provided for by Directive 2008/98/EC, known as the Waste Framework Directive ("WFD"). Further or alternatively, the claimant contends that the reasons which he gave for reaching his decision are inadequate.
8. The first defendant, the Secretary of State for Communities and Local Government, contests the claim and seeks to uphold the decision. His case in short is that the inspector asked himself the right questions, properly addressed the right issues, and gave proper and sufficient reasons for his decision.
9. The second defendant, Derby City Council, has filed an acknowledgement of service stating that it does not intend to contest the claim and, accordingly, has not appeared nor was it represented at the hearing.
10. The third defendant, Resource Recovery Solutions (Derbyshire) Limited, the applicant for planning permission, also contests the claim and seeks to uphold the decision; its case is substantially the same as that of the first defendant.
(2) My decision in summary
11. In summary, I prefer the defendants' arguments for substantially the reasons they give. In the circumstances this application must fail.
12. The remainder of this judgment is set out under the following further headings and paragraphs:
(3) Relevant legal principles: paragraphs 13 - 28;
(4) The decision: paragraphs 29 - 37;
(5) The legal and policy framework relevant to the inspector's decision: paragraphs 37 - 75;
(6) The factual material before the inspector in relation to issue (ii): paragraphs 76 - 88;
(7) The respective arguments: paragraphs 89 - 112;
(8) My decision: paragraphs 113 - 125.
(3) Relevant legal principles
13. There was little if any disagreement about the legal principles relevant to this case, which I take largely from counsels' extremely helpful written skeleton arguments.
3(a) s.288 TCPA 1990
14. The application is made under s.288(1) of the Town and Country Planning Act 1990 ("the 1990 Act") which states that:
"If any person-
(b) is aggrieved by any action on the part of the Secretary of State to which this section applies and wishes to question the validity of that action on the grounds-
(i) that the action is not within the powers of this Act, or
(ii) that any of the relevant requirements have not been complied with in relation to that action,
he may make an application to the High Court under this section."
15. Under s.288(5)(b) the court may, if satisfied that the order or action in question is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it, quash that order or action.
3(b) The basis for interfering with a planning decision
16. The basis on which the court may interfere with the decision of an inspector under s.288 was considered in Ashbridge Investments Ltd v Minister of Housing and Local Government  1 WLR 1320, where Lord Denning MR stated (at p1326):
"Under this section it seems to me that the court can interfere with the Minister's decision if he has acted on no evidence; or if he has come to a conclusion to which on the evidence he could not reasonably come; or if he has given a wrong interpretation to the words of the statute; or if he has taken into consideration matters which he ought not to have taken into account, or vice versa. It is identical to the position when the Court has power to interfere with the decision of a lower tribunal which has erred in point of law."
17. Such an application does not afford an opportunity for a review of the merits of a planning decision, since it is for the inspector not for the court to reach a view on planning matters. As Sullivan J (as he then was) said in R (on the application of Newsmith Stainless Ltd) v Secretary of State for the Environment, Transport and the Regions  EWHC Admin 74:
"An application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision. An allegation that an Inspector's conclusion on the planning merits is Wednesbury perverse is, in principle, within the scope of a challenge under section 288, but the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits."
3(c) The inspector's duty to have regard to the development plan
18. A decision maker exercising powers under the 1990 Act is to have regard to the development plan; section 70 (2) provides that:
"In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations."
19. This is now a statutory duty pursuant to section 38(6) of the Planning and Compulsory Purchase Act 2004, which provides that:
"If regard is to be had to the development plan for the purposes of any determination to be made under the Planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."
20. It has long been established that a planning authority must proceed upon a proper understanding of the development plan, per Lord Reed JSC in Tesco Stores Ltd v Dundee City Council  UKSC 13 at paragraph 17, referring to Gransden v Secretary of State for the Environment (1987) 54 P. & C.R. 86 (Woolf J. at p94, upheld by the Court of Appeal  J.P.L. 365).
21. The relevant time for assessing whether the duty has been complied with is the time the decision is taken: Nottinghamshire County Council v Secretary of State for the Environment Transport and the Regions  PLCR 340.
3(d) Interpretation of the development plan
22. In Tesco Stores v Dundee City Council (above) Lord Reed (with whom Lord Hope, Lord Brown, Lord Kerr and Lord Dyson agreed) held in paragraph 18 that the correct interpretation of the statutory development plan was a question of law to be determined by the court, to be interpreted "objectively in accordance with the language used, read as always in its proper context". In paragraph 19 he stated that plans should not, however, be construed as if they were statutory or contractual provisions. He accepted that insofar as the application of the development plan to a given set of facts would require the exercise of planning judgment, that could only be challenged on grounds of irrationality or perversity.
23. In paragraph 21 he explained the dividing line between the two in the context of that case, which concerned the meaning of the words "suitable site" when used in the development plan under consideration there.
"21. A provision in the development plan which requires an assessment of whether a site is "suitable" for a particular purpose calls for judgment in its application. But the question whether such a provision is concerned with suitability for one purpose or another is not a question of planning judgment: it is a question of textual interpretation, which can only be answered by construing the language used in its context. In the present case, in particular, the question whether the word "suitable", in the policies in question, means "suitable for the development proposed by the applicant", or "suitable for meeting identified deficiencies in retail provision in the area", is not a question which can be answered by the exercise of planning judgment: it is a logically prior question as to the issue to which planning judgment requires to be directed."
24. In paragraphs 22 and 23, he went on to consider the potential consequences of a failure properly to construe a particular policy.
"22. It is of course true, as counsel for the respondents submitted, that a planning authority might misconstrue part of a policy but nevertheless reach the same conclusion, on the question whether the proposal was in accordance with the policy, as it would have reached if it had construed the policy correctly. That is not however a complete answer to a challenge to the planning authority's decision. An error in relation to one part of a policy might affect the overall conclusion as to whether a proposal was in accordance with the development plan even if the question whether the proposal was in conformity with the policy would have been answered in the same way. The policy criteria with which the proposal was considered to be incompatible might, for example, be of less weight than the criteria which were mistakenly thought to be fulfilled. Equally, a planning authority might misconstrue part of a policy but nevertheless reach the same conclusion as it would otherwise have reached on the question whether the proposal was in accordance with the development plan. Again, however, that is not a complete answer. Where it is concluded that the proposal is not in accordance with the development plan, it is necessary to understand the nature and extent of the departure from the plan which the grant of consent would involve in order to consider on a proper basis whether such a departure is justified by other material considerations.
23. In the present case, the Lord Ordinary rejected the appellants' submissions on the basis that the interpretation of planning policy was always primarily a matter for the planning authority, whose assessment could be challenged only on the basis of unreasonableness: there was, in particular, more than one way in which the sequential approach could reasonably be applied ( CSOH 128, para 23). For the reasons I have explained, that approach does not correctly reflect the role which the court has to play in the determination of the meaning of the development plan. A different approach was adopted by the Second Division: since, it was said, the proposal was in head-on conflict with the retail and employment policies of the development plan, and the sequential approach offered no justification for it, a challenge based upon an alleged misapplication of the sequential approach was entirely beside the point (2011 SC 457,  CSIH 9, para 38). For the reasons I have explained, however, even where a proposal is plainly in breach of policy and contrary to the development plan, a failure properly to understand the policy in question may result in a failure to appreciate the full extent or significance of the departure from the development plan which the grant of consent would involve, and may consequently vitiate the planning authority's determination. Whether there has in fact been a misunderstanding of the policy, and whether any such misunderstanding may have led to a flawed decision, has therefore to be considered."
25. In that regard I note also that where there has been an error in the decision making process, the test for deciding whether or not to quash the decision was identified by Purchas LJ in Simplex GB (Holdings) Ltd and another v Secretary of State for the Environment and Another  3 PLR 25 at 42 as follows:
"...It is not necessary for [the applicant] to show that the minister would, or even probably would, have come to a different conclusion. He has to exclude only the contrary contention, namely that the minister necessarily would still have made the same decision."
3(e) Duty to give reasons
26. The nature and extent of the inspector's duty to give reasons has been referred to in a number of cases. Lord Brown of Eaton-under-Heywood summarised the proper approach in South Buckinghamshire DC v Porter (No. 2)  1 WLR 1953, at p1964:
"36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."
27. Sir Thomas Bingham MR said in Clarke Homes v Secretary of State for the Environment (1993) 66 P. & C.R. 263, at 271 that:
"... the central issue in this case is whether the decision of the Secretary of State leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved as the parties agree on a straightforward down-to-earth reading of his decision letter without excessive legalism or exegetical sophistication."
28. A similar point was made by Hoffman LJ in South Somerset DC v Secretary of State for the Environment (1993) 66 P & CR 83 at paragraph 85:
"The inspector is not writing an examination paper on current and draft development plans. The letter must be read in good faith and references to policies must be taken in the context of the general thrust of the inspector's reasoning. A reference to a policy does not necessarily mean that it played a significant part in the reasoning: it may have been mentioned only because it was urged on the inspector by one of the representatives of the parties and he wanted to make it clear that he had not overlooked it. Sometimes his statement of the policy may be elliptical but this does not necessarily show misunderstanding. One must look at what the inspector thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood a relevant policy or proposed alteration to policy."
(4) The decision
29. The inspector began the substantive part of his decision by identifying, in paragraph 12, the main issues which he considered arose for his determination:
12. From the evidence put before me both orally and in writing, I consider that the main issues in this appeal are:
(i) The performance of the proposal against the development plan;
(ii) The relationship of the proposed development to the waste hierarchy and whether the development would hinder the achievement of higher recycling rates;
(iii) The effect of the proposal on the character and appearance of the area;
(iv) The effect of traffic generated by the proposed development on the safety and free flow of traffic on the road system in this part of Derby;
(v) The effect of the proposal on air quality in this part of Derby; and
(vi) The effect of the proposal on the health of those living in this part of Derby."
30. There is no complaint about or challenge to his analysis of what were the main issues. It is his decision in relation to issue (ii) which arises for consideration on this application.
31. He began however by addressing issue (i) and concluded, in a decision which is not contested, that the waste management policy in RP Policy 38 was to be accorded much greater weight than the waste policies contained in the other development plans forming part of the statutory development plan.
32. He then turned to address issue (ii). Submissions have focussed particularly on paragraphs 35 to 40 inclusive, which justify setting out in full.
"35. Other elements of RP Policy 38 require waste to be treated higher up the waste hierarchy and for minimum targets for recycling and composting of municipal solid waste to be raised to 30% by 2010 and 50% by 2015. It forms no part of [Derby] City Council's case as local planning authority that the proposal would fail to conform to the former or would prejudice recycling and composting targets to be met. However, others take a different view.
36. Dealing first of all with the waste hierarchy, one of the key objectives of national policy in both PPS10 and WS2007 is to drive the management of waste up the hierarchy. This is to take the management of waste away from the old and long established practice in this country of disposing of much of our municipal solid waste to landfill. Although one of the processes of the proposed waste treatment facility is to separate out glass and ferrous and non-ferrous metals from the municipal waste that is received and send these off for recycling, I recognise that most of the waste would be treated and used as a feedstock for the gasification process to generate energy. Much has been made of the permit's classification of the proposed facility as an incineration plant rather than as an energy recovery plant. The point was made by some at the inquiry that incineration can be regarded as disposal at the bottom of the waste hierarchy whilst energy recovery lies on the next step up in the hierarchy.
37. This seems to me to stem from a misunderstanding of how energy efficiency from the proposed plant is treated in the permit. Initially, the proposed plant will generate electricity which will be fed into the grid. Just generating electricity does not qualify a plant to be treated as a recovery process. To qualify, a plant has to raise its energy efficiency by also exporting heat. In my view, it would be unusual for the operator to sign up customers to take any heat produced by the plant at the outset. Potential customers are likely to wait to see whether the plant comes up to expectations in terms of the amount of heat that it produces and the reliability of supply of the heat. Once they are satisfied on these points, then contracts to take the heat may well be signed. It is in the financial interests of the operator of the plant to secure customers to take any heat generated. Once heat is being exported, the operator of the plant can return to the Environment Agency to have the plant reclassified as an energy recovery facility.
38. The important factor is that a plant is located so that potential customers for the heat are within easy reach. Long lengths of pipe work can be expensive to install and there is the challenge of ensuring that heat is not lost whilst being transported in long lengths of pipe. In this case, the appeal site lies cheek by jowl with a large area of manufacturing industry. Thus, there is considerable potential for heat produced by the proposed facility to be used by neighbouring industrial consumers.
39. In this regard, I note that the Environment Agency through the environmental permit requires steam/hot water pass-outs to be provided and maintained. This would enable the plant to provide heat to nearby consumers once the plant is up and running and customers have been signed up. Through the permit, the Agency also requires the operator of the plant to review options for recovering heat on an ongoing basis.
40. In recognition that there can be misunderstanding as to how to apply the waste hierarchy in such situations, DEFRA has produced guidance on the interpretation of the hierarchy. (See a copy of DEFRA's "Guidance on Applying the Waste Hierarchy" at CD151). The table on page 6 of the guidance, which is dated June 2011, makes it clear that all energy recovery technologies, whether electricity only, heat only or heat and power combined, come higher in the waste hierarchy than disposal. Thus, the proposed waste treatment facility on the appeal site lies higher in the hierarchy than disposal."
33. It is the true meaning and effect of paragraph 40, read in context as of course it must be, which is in my judgment the issue at the very heart of this case. However, tempting though it is to go straight to this issue, it is necessary for a proper understanding and determination of the issue to refer to the remaining relevant parts of the decision, to the factors relevant to the inspector's decision, and to the competing arguments of the parties before I can do so.
34. In his decision the inspector continued to address and dismiss arguments as to the relative energy efficiency of the proposed facility, and to consider the impact of the proposed facility on recycling, and expressed his conclusion on issue (ii) in paragraph 48 in the terms I have already referred to (at paragraph 6 above)
35. Having addressed the remaining issues, he then drew the threads together in the following terms, as relevant to this case:
"Overall conclusion on the development plan and a consideration of benefits and harm
118. Gathering together my conclusions on the issues that I have identified in this case, I conclude that the proposal complies with the RP in providing a centralised facility for dealing with the waste management needs of this part of the region. The proposal also complies with the RP in that it would enable waste to be managed higher up the waste hierarchy and would not inhibit recycling or prevent the RP's recycling target or a higher target from being met. In considering the proposal against the various site specific impacts such as being compatible with the character and appearance of the locality, effect on the local highway network, impact on air quality and effect on health, I conclude that the proposal does not breach any RP, WLP [Waste Local Plan] or LP [Local Plan] policy. In short, I find that the proposal complies with the relevant policies in the development plan."
36. He then went on to consider the advantages and disadvantages of the development. In terms of advantages, as relevant to this case he concluded in paragraph 120 that the development would enable the last major element of the city and county's joint waste strategy to be brought to fruition, would enable the city and county's residual municipal waste to be dealt with in a sustainable manner by reducing the volume of waste going to landfill, would provide for the separation of recyclable elements of waste that had missed kerbside collection of recyclable materials, and would put the bottom ash to use as a recyclate. He concluded in paragraph 121 that it would offer renewable energy benefits by exporting sufficient electricity to power 14,000 homes, so that it would be a source of renewable energy contributing to lowering the reliance on fossil fuels, and that it would offer the opportunity in the future for heat to be used by local industry in the form of either steam or hot water.
(5) The legal and policy framework relevant to the inspector's decision
37. Given the arguments advanced by the parties it is necessary to refer to the relevant parts of the relevant legal and policy framework in some detail.
5(a) The Waste Framework Directive ("WFD")
38. Directive 2008/98/EC, the WFD, repealed a previous Directive (2006/12) on waste and, with effect from 12 December 2010, introduced new provisions in order to boost waste prevention and recycling as part of the waste hierarchy. It also sought to clarify concepts including the definitions of waste, recovery and disposal. Although the WFD is not mentioned by name in the decision, it is clear from the many references in the decision to policy and guidance documents which do make reference to it that the inspector was very well aware of the WFD and its terms. Indeed I was told by Mr Kingston QC, who appeared for the third defendant at the planning inquiry, that the inspector is very experienced in the field of waste planning.
39. I begin with article 1, which provides as follows:
Subject matter and scope
This Directive lays down measures to protect the environment and human health by preventing or reducing the adverse impacts of the generation and management of waste and by reducing overall impacts of resource use and improving the efficiency of such use.
40. The article which is at the heart of this case is article 4, which provides as relevant to this case as follows:
1. The following waste hierarchy shall apply as a priority order in waste prevention and management legislation and policy:
(b) preparing for re-use;
(d) other recovery, e.g. energy recovery; and
2. When applying the waste hierarchy referred to in paragraph 1, Member States shall take measures to encourage the options that deliver the best overall environmental outcome. This may require specific waste streams departing from the hierarchy where this is justified by life-cycle thinking on the overall impacts of the generation and management of such waste.
41. The terms used in Art. 4(1) are defined in Article 3. In this case the definitions of recovery and disposal are relevant, and are as follows:
"15. "recovery" means any operation the principal result of which is waste serving a useful purpose by replacing other materials which would otherwise have been used to fulfil a particular function, or waste being prepared to fulfil that function, in the plant or in the wider economy. Annex II sets out a non-exhaustive list of recovery operations;
"19. "disposal" means any operation which is not recovery even where the operation has as a secondary consequence the reclamation of substances or energy. Annex I sets out a non-exhaustive list of disposal operations."
42. Annex II includes in the list of recovery operations at item R1, "use principally as a fuel or other means to generate energy" but, significantly, for present purposes, this is qualified by a footnote which states that:
"This includes incineration facilities dedicated to the processing of municipal solid waste only where their energy efficiency is equal to or above:
- 0,65 for installations permitted after 31 December 2008,using the following formula:
Energy efficiency = (Ep - (Ef + Ei))/(0,97 × (Ew + Ef))
- Ep means annual energy produced as heat or electricity. It is calculated with energy in the form of electricity being multiplied by 2,6 and heat produced for commercial use multiplied by 1,1 (GJ/year)
- Ef means annual energy input to the system from fuels contributing to the production of steam (GJ/year)
- Ew means annual energy contained in the treated waste calculated using the net calorific value of the waste (GJ/year)
- Ei means annual energy imported excluding Ew and Ef (GJ/year)
- 0,97 is a factor accounting for energy losses due to bottom ash and radiation.This formula shall be applied in accordance with the reference document on Best Available Techniques for waste incineration."
43. Annex I includes as item D1 "incineration on land".
44. Expressing this in non-technical terms, where a waste facility involves the incineration of municipal solid waste (black bag waste) which is used to generate energy, it will fall within the definition of recovery only where its energy efficiency meets the R1 threshold. Otherwise, it will fall into the bottom category of disposal, even though it would otherwise fall within the category of recovery both because of its principal result and its operation.
45. As recital 20 of the WFD explains, this is a policy decision to promote energy efficient black bag waste incineration over non-energy efficient black bag waste incineration. It is part of the process whereby the WFD seeks to more clearly differentiate between recovery operations and disposal operations: see recitals 4, 5, 8 and 19.
46. However, as the defendants have pointed out, the WFD does not, by reference to the waste hierarchy, impose an order of precedence which must be followed slavishly, without reference to the particular circumstances of the individual case. Nor does it prohibit member states from permitting waste to be dealt with only by operations which fall into the disposal category where they cannot be dealt with by an operation falling into a category higher up the waste hierarchy. In particular, article 4(2) makes it clear that in applying the waste hierarchy members must take measures to encourage the option which delivers the best overall environmental outcome. Furthermore, my attention was also drawn to recitals 6 and 19, which provide respectively that:
"(6) The first objective of any waste policy should be to minimise the negative effects of the generation and management of waste on human health and the environment. Waste policy should also aim at reducing the use of resources, and favour the practical application of the waste hierarchy." (emphasis added)
"(19) The definitions of recovery and disposal need to be modified in order to ensure a clear distinction between the two concepts, based on a genuine difference in environmental impact through the substitution of natural resources in the economy and recognising the potential benefits to the environment and human health of using waste as a resource. In addition, guidelines may be developed in order to clarify cases where this distinction is difficult to apply in practice or where the classification of the activity as recovery does not match the real environmental impact of the operation." (emphasis added)
47. My attention has also been drawn, although not in any detail because it is unnecessary to do so, to various other provisions of the WFD relevant to its general scheme. Thus article 16 requires member states to take "appropriate measures ... to establish an integrated and adequate network of waste disposal installations and installations for the recovery of mixed municipal waste ... taking into account best available techniques" and so as "to enable waste ... to be recovered ... by means of the most appropriate methods and technologies in order to ensure a high level of protection for the environment and public health". This reinforces in my judgment the waste hierarchy but also the need to apply it practically so as to achieve the best overall environmental outcome. The same can be said of articles 10 and 12, which require member states to "take the necessary measures to ensure that waste undergoes recovery operations" or if not, "safe disposal operations which meet the provisions of Article 13".
48. Chapter IV requires member states to establish a system of permit requirements for businesses intending to carry out waste treatment, which is relevant to this case, as I shall explain, because - as the inspector noted in his decision - a permit has been issued for the proposed waste treatment facility in this case, the terms of which are of some relevance to his decision.
49. Chapter V requires member states to ensure that waste management plans are established to cover their territory, which includes planning policies in relation to waste treatment facilities.
50. Finally, article 40 requires member states to "bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 12 December 2010". This provision was necessary because, as is common ground, the WFD does not have directly applicable effect in the member states, who are entitled to decide for themselves the methods to be adopted in order to achieve the required results. Accordingly, my attention was drawn to the measures by which the WFD has been transposed in England . It is not necessary for me to produce a detailed analysis of all of them; it is sufficient merely to note the principal measures and their relevance to this case.
5(b) The Waste (England and Wales) Regulations 2011
51. These regulations came into effect on 29 March 2011. They require the Secretary of State to ensure that waste management plans are in place (reg. 7), which must include a statement of policies to achieve the objectives set out in Schedule 1 Part 1, which itself in paragraph 2 includes "the application of the waste hierarchy ... as a priority order ... and so as to deliver the best overall environmental outcome".
52. It is clear, as the claimant observes, that the definitions of recovery and disposal used in the WFD are transposed into the regulations by virtue of reg. 3(2).
53. The 2011 Waste Regulations also impose a duty on all businesses dealing with waste to take all reasonable available measures to apply the waste hierarchy as a priority order and so as to deliver the best overall environmental outcome (reg. 12).
54. Bodies dealing with planning matters are not made subject to the duty imposed by reg. 12, but reg. 18 imposes duties on planning authorities to have regard to articles 13 and 16 of the WFD when exercising their planning functions. In the course of oral submissions Mr Simons submitted that this obligation imposed a direct obligation on the inspector to apply the waste hierarchy by reference to the definitions contained in the WFD. This was not a point which had previously been raised by the claimant, whether in the statement of facts and grounds or by Mr Simons' written submissions. Mr Moffett was concerned that if this point was to be pursued as a separate point he would need to have the opportunity to consider it and take instructions upon it before responding. However, upon further consideration counsel were agreed that since the defendants accepted that the inspector was obliged under RP Policy 38 in any event to have regard to the waste hierarchy by reference to the definitions contained in the WFD, this point did not add anything to the claimant's case, so that it was not necessary for me to deal specifically with it. In the light of the conclusions which I have reached I am satisfied that there is no need for me to do so.
5(c) Planning Policy Statement 10: Planning for sustainable waste management
55. This policy statement ("PPS10" for short) is the national statement of planning policy for waste management in England, first published in 2005 and amended in March 2011, thus coming into effect at the same time as the 2011 Waste Regulations to which I have just referred. It is to be taken into account by regional planning authorities in preparing regional plans, and "may be material to decisions on individual planning applications". That the inspector was aware of PPS10 is apparent from paragraph 36 of his decision. It is to be read in conjunction with the national waste strategy (being WS2007 also referred to by the inspector in paragraph 36).
56. The overall objective of the policy is stated in paragraph 1 to be "to protect human health and the environment by producing less waste and by using it as a resource wherever possible" by (inter alia) "moving the management of waste up the ‘waste hierarchy' of prevention, preparing for reuse, recycling, other recovery, and disposing only as a last resort".
57. Paragraph 3 (inter alia) requires "all planning authorities [to] deliver planning strategies that:
- help deliver sustainable development through driving waste management up the waste hierarchy, addressing waste as a resource and looking to disposal as the last option, but one which must be adequately catered for ...
- ... are consistent with obligations required under European legislation ..."
58. Paragraph 25 states:
"In the case of waste disposal facilities, applicants should be able to demonstrate that the envisaged facility will not undermine the waste planning strategy through prejudicing movement up the waste hierarchy."
59. PPS10 also includes in Annex C a pictorial representation of the waste hierarchy, in the form of an inverted segmented triangle, with supporting notes. This "waste triangle" make it clear that: (a) disposal is the "least desirable solution where none of the above options is appropriate"; (b) the full definition of each level of the waste hierarchy is to be found in the WFD.
5(d) DEFRA Waste Strategy for England 2007
60. This document ("WS2007") is that referred to in RP Policy 38. As is clear from the notation at p6 entitled "application of this strategy", it was intended to be read together with PPS10 as part of the implementation of the framework directive on waste which preceded the WFD. It is, to that extent, out of date in that it does not appear to have been updated following the coming into force of the 2011 Waste Regulations or the updated PPS10. However nothing turns on that because, in the executive summary at p9, the overall aim is set out as being to reduce waste by applying the waste hierarchy, which is set out in substantially the same "waste triangle" form as in PPS10, both at p9 and again as figure 1.3 at p28.
61. It is also stated in the notes which follow figure 1.3 that key objectives of this strategy include increasing diversion of waste from landfill and increasing recovery of energy from residual waste using a mix of technologies. These themes, which recur in subsequent departmental guidance to which I next refer, are particularly emphasised by the defendants because, they say, they explain and underpin the reasoning of the inspector and, in particular, what he said at paragraph 40 of the decision. They submit that the approach recognises that the categories within art. 4(1) of the WFD are broad categories, within which there may be considerable variation in terms of environmental outcome, so that an approach which equates all types of disposal as one and the same would be plainly inappropriate.
5(e) RP Policy 38
62. I have already referred to RP Policy 38 itself. It is dated March 2009, so that in the same way as WS2007 it refers to earlier versions of the directive and PPS10. Nonetheless in paragraph 3.3.56 it is noted that they "promote a comprehensive hierarchical approach to waste management", with the 5 categories set out in the by now familiar order, so that again nothing turns on the difference between the earlier and the current versions for present purposes.
5(f) DEFRA Guidance on applying the waste hierarchy June 2011
63. This document (the "2011 Guidance") is important, because it is the document referred to in paragraph 40 of the inspector's decision. It was produced under reg. 15 of the 2011 Waste Regulations, which authorises the Secretary of State to give guidance on the discharge of duties imposed by reg. 12, and it is stated in the introduction to have been produced for that purpose.
64. In section 1 there is reproduced the now familiar waste triangle. The accompanying note states that "other recovery" includes "incineration with energy recovery" and that "disposal" includes "landfill and incineration without energy recovery". However, as Mr Simons points out, this is subject to the information note appearing immediately afterwards which reads:
"The waste hierarchy is set out at Article 4 of the revised Waste Framework Directive 2008/98/EC. The definitions of each of the stages can be found in Article 3 of the Directive. Non-exhaustive lists of disposal and recovery operations can be found in Annexes I and II of the Directive respectively."
65. The purpose of the table at p.6, referred to by the inspector in paragraph 40 of his decision, is stated in paragraph 2.1 as being to "illustrate how the hierarchy applies for a range of common materials and products". This also states that the "ranking of the various waste management options is based on current scientific research", and reference is made to an evidence paper produced by DEFRA to that effect, to which I will refer.
66. The table itself contains 11 columns, of which the last is "residual black bag", and below that are the familiar 5 rows of the waste hierarchy beginning with prevention and ending with disposal. Under the black bag column, prevention appears first and disposal appears last. In between the two are 5 different types of energy recovery, ranked in order. The third and fourth are relevant to this case; the third is "energy recovery (CHP)" and the fourth is "energy recovery (electricity only)".
67. The point is made by Mr Simons that although if this table was read in isolation, or even with the waste hierarchy triangle in section 1, it could be taken as suggesting that any energy recovery ranked higher up the waste hierarchy than disposal, that would be inconsistent with the clear definitions in the WFD, the existence of which are referred to specifically in the note to the waste triangle in section 1. Thus, he submitted, the 2011 Guidance does not, on a proper analysis, contain any justification for departing from the proposition that incineration of municipal solid waste, even with associated energy recovery, does not fall into the "other recovery" classification unless it achieves the R1 threshold in the WFD and, if it does not, by definition it must fall into the residual disposal classification.
68. That point seems to me to be clearly correct, and it was not suggested on behalf of either the first defendant or the third defendant that it was wrong.
5(g) DEFRA Applying the waste hierarchy: evidence summary June 2011
69. This document (for short the "Evidence Summary 2011") is the document mentioned in the 2011 Guidance. It explains that its purpose is to summarise the current scientific research and to explain how the options have been ranked in order of environmental preference within the waste hierarchy. In section 4 there is yet another version of the waste triangle, in the same terms to that appearing in the 2011 Guidance, but with a caveat expressly stating that the WFD makes separate provision for municipal waste incinerators whose energy efficiency is above and below the specified threshold, and that "where energy recovery in [such] incinerators is discussed in this document it is assumed that the option considered is above this threshold."
70. Mr Simons submits, and I agree, that the informed reader of both the 2011 Guidance and this document would thus understand beyond any reasonable doubt that the table in the 2011 Guidance to which the inspector referred could only have been understood as referring to incinerators whose efficiency was above the R1 threshold.
71. The document continues in section 4 to discuss "departing from the waste hierarchy" and, after referring to article 4(2) of the WFD, states that "other considerations ... can be taken into account [which] are better considered on a case by case basis and are not covered here".
72. The defendants rely on this as demonstrating that the waste hierarchy is not a straightjacket. They also rely on the further section dealing specifically with "residual black bag waste", which provides a significant amount of detail in relation to the various available technologies. It is clear that it is necessary to focus carefully on the individual process. It also commends the CHP process, and suggests that it "should be implemented wherever possible". Finally, it deals with landfill under the heading disposal and states that it is the most common but "continues to be the most unsustainable waste management option". Again the defendants rely on this as demonstrating the need to look at the particular details of the particular proposal.
5(h) DEFRA publication "Energy from waste: a guide to the debate February 2013"
73. Finally I was referred to this document by both parties, but only on the basis that it illustrates the current thinking. It is not a document, given its date of publication, put before or available to the inspector. It is not suggested therefore that its contents could amount to relevant policy guidance to which he should have had regard.
74. The claimant relies upon chapter 2 as confirming that nonetheless the waste hierarchy still applies.
75. The defendants however also invite me to note that there is a detailed section in chapter 2 at pp20-21 which explains the R1 definition in relation to the incineration of municipal waste. The defendants point out that within that section there is a recognition that "with the right combination of overall efficiency and biogenic content in the waste an energy from waste plant which does not qualify for R1 status may still be a better environmental option than landfill". The defendants also rely on chapter 2 of the overview as illustrating the current thinking to the effect that the waste hierarchy is not to be applied inflexibly, and that even where energy from waste must be classified as disposal under the waste hierarchy "nonetheless the environmental balance may still favour energy from waste over landfill".
(6) The factual material before the inspector in relation to issue (ii)
76. I need only make short reference to those elements of the factual material before the inspector upon which the respective parties placed reliance.
6(a) The planning application
77. It is not necessary to me to refer to the detail of the application. It suffices for present purposes to note that in the supporting statement full details were given of the proposed waste treatment process, including a section dealing with energy recovery (paragraphs 7.7.10 - 7.7.12) in which it was made clear that the plant would generate electricity sufficient to power 14,000 homes, and that preliminary studies had demonstrated the potential that some exhaust steam or hot water could be supplied to adjacent consumers, but that this was subject to "demand, location and supply conditions". In other words, the application included a firm proposal for energy recovery by electricity generation, but only an aspiration for further energy recovery by heat exportation.
6(b) The environmental permit
78. In paragraph 9 of the decision the inspector recorded that the Environment Agency ("EA") had issued an environmental permit ("the permit") on 11 November 2010 for the proposed waste treatment facility. He made extensive reference to it in paragraphs 36-39 of his decision, and the factual accuracy of what he said there is not in issue.
79. As he noted in paragraph 36 the permit described the proposed facility as an incineration facility, albeit one which would also generate electricity for export to the national grid. The claimant noted that the permit contained no requirement for heat exportation. However the defendants placed considerable reliance upon the fact that the permit contained conditions in relation to energy efficiency which, in short, required a facility for the export of steam and hot water to be provided and maintained, and which required the operator to review the practicability of doing so and thus implementing the facility as a CHP (Combined Heat and Power) facility at least every 2 years.
80. Mr Kingston QC for the third defendant also referred me to the accompanying decision document, which provided further details in relation to this aspect of the case. In particular, he drew my attention to the fact that the EA considered that "within the constraints of the location of the installation [the proposed facility] would recover heat as far as practicable" [paragraph 184.108.40.206]. In other words, the EA had taken the view when issuing the permit that the third defendant was doing as much as it reasonably could to enable heat from the facility to be recovered.
6(c) The evidence placed before the inspector by the third defendant
81. It was the defendants' submission that the evidence presented to the inspector showed quite clearly that: (i) there was never any dispute about the fact that unless and until the facility operated as a CHP facility by exporting heat as well as electricity it was not capable of meeting the R1 threshold; (ii) the real debate before the inspector, and thus the real issue which he had to decide, was whether the third defendant's proposal would deliver a better overall environmental outcome than the existing approach of disposing of the waste to landfill or any other reasonable option.
82. It was the claimant's submission that whilst this may have been so, nonetheless the third defendant was also advancing a positive case before the inspector to the effect that, although it accepted that the facility would not meet the R1 threshold in electricity generation mode alone, nonetheless that was still to be treated as higher up the waste hierarchy than disposal to landfill. This is an important submission because it underpins the claimant's further submission that the terms in which the inspector expressed himself in paragraph 40 showed that he was accepting this alternative argument by the third defendant.
83. The third defendant referred me to the evidence of Mr Smyth, one of the witnesses which it called at the inquiry, who is a planning and development consultant. Forming appendix A to his proof of evidence was a document entitled "R1 energy efficiency status" in which he: (1) explained the separate classifications of recovery and disposal; (2) explained that the difference between the two was governed by the R1 formula as defined in the WFD; (3) produced calculations in accordance with the R1 formula both for the proposed facility in electricity generation mode alone and in CHP mode, explaining that initial operation would be in electricity generation mode alone and that CHP was subject to securing a suitable end user; (4) confirmed that in electricity generation mode alone the R1 threshold would not be met, whereas in CHP mode it would subject to a specified minimum of 8.1MW of energy being supplied as heat.
84. Thus, submitted the third defendant, there was never any question of the inspector being under any misapprehension in relation to these fundamental matters.
85. I agree with that submission. Indeed, this was common ground at the inquiry. Thus, although I was not specifically referred to these documents in submissions, I note that within the hearing bundle also appear:
(a) A rebuttal document to Mr Smyth's appendices, prepared by Mr Tim Hill, a witness called by SSAIN, which addressed this point specifically at section 10 under the heading "R1 status of the proposal" and argued, forcefully, that as matters currently stood the proposal could only be classed as disposal and [paragraph 10.13] "as such ... sits alongside landfill at the bottom of the waste hierarchy, and cannot be said to move waste management up the waste hierarchy".
(b) A closing statement by SSAIN, which at paragraph 7 made the point that the third defendant had agreed at the inquiry that their proposal in electricity only mode fell within the disposal category of the waste hierarchy.
86. The third defendant also referred me to the evidence of Ms Berry, another of the witnesses which it called at the inquiry, who is also a planning and development consultant. Her proof of evidence included a section at paragraph 3 dealing with waste. This included at paragraph 3.2, under the heading "European Directives", express reference to the waste hierarchy as provided for by the WFD, and referred to the environmental benefits of energy recovery over disposal to landfill. Further, in paragraphs 3.5.17 - 18, seemingly by reference to Mr Smyth's analysis, she accepted that the facility would not satisfy the R1 definition in electricity only mode, but would do so should CHP be delivered at an appropriate scale. Thus, said the third defendant, her evidence was consistent with Mr Smyth on this point.
87. However the claimant drew my attention to a following section of Ms Berry's proof, at paragraphs 3.5.19 - 21, where she developed an argument that the definition of "other recovery" in the 2011 Waste Regulations did not bring in the R1 definition, and should be "applied at face value". Mr Simons submitted that whilst this argument was clearly incorrect (in that as I have already noted and agreed the WFD definitions of recovery and disposal were brought in through the definition section of the Regulations), nonetheless it was an argument which was being positively advanced by the third defendant to the inspector and which appears to have influenced him in reaching the decision which the claimant submits that he reached in paragraph 40.
88. In answering this submission Mr Kingston QC, who as I have said represented the third defendant before the inspector as well as in this court, submitted that this was not a point which was positively taken up by the third defendant before the inspector. His closing submissions have been placed before me and, having read them, they confirm what he says about this. It is clear, most notably from paragraph 62, that he was not advancing a position that the R1 definition was not relevant for the purposes of assessing whether the proposal met the waste hierarchy objective. Instead he was advancing an argument that it was "concerned with only one aspect of the proposal and ignores the recycling / MBT elements". Nonetheless, it is also true that there is no express statement to the effect that the third defendant was positively disclaiming any reliance on that part of Ms Berry's proof.
(7) The respective arguments
89. Mr Simons began his argument by submitting that the manner in which the obligations imposed by the WFD had been transposed into domestic law and policy necessarily involved the transposition of the definitions in the WFD in relation to recovery and disposal. Since the inspector was obliged to have regard to RP Policy 38 in making his decision, and since RP Policy 38 required the promotion of proposals which would result in waste being treated higher up the waste hierarchy, in order for the inspector to comply with his duty he needed to apply the definitions of recovery and disposal as found in the WFD when addressing the issue as to whether the proposed waste treatment facility would result in waste being treated higher up the waste hierarchy.
90. Mr Simons also submitted that the interpretation of what is meant by recovery and what is meant by disposal is a question of law rather than a question of the exercise of planning judgment.
91. The defendants did not seek to contest these propositions, and in my judgment they were right not to do so. It is clear from an examination of the law and policy documents to which I have referred above that when considering whether a proposal falls within one or another category of the waste hierarchy, it is the definitions in the WFD which are to be applied. It is also clear in my judgment from Tesco v Dundee City Council that the interpretation of a term used in or brought in by the provisions of a relevant development plan is a question of law.
92. The defendants however submitted that complying with his duty to have regard to RP Policy 38 did not require the inspector to confine himself to what they categorised as the "straightjacket" of the article 4.1 waste hierarchy. They submitted as follows:
(1) As was made clear by article 4.2 of the WFD, which was itself also properly transposed into domestic law and policy, what was required was a practical application of the waste hierarchy to encourage the option which delivered the best overall environmental outcome. It followed that the inspector was not prohibited from concluding that the proposal in this case would result in waste being treated higher up the waste hierarchy even though on a correct application of the definitions in the WFD the proposal in electricity generation mode alone would not meet the R1 threshold to qualify to fall within the recovery category and thus would fall to be treated as disposal.
(2) The inspector's duty to have regard to RP Policy 38 did not mean that a proposal which would still fall within the category of disposal could not be permitted. By reference to paragraph 25 of PPS10 the inspector would need to consider in such a case whether or not the proposal would undermine the waste planning strategy through prejudicing movement up the waste hierarchy.
(3) The inspector was entitled to have regard to differences in environmental outcome between options falling within the same categories of art. 4(1), not just to differences between options falling within different categories.
93. In meeting these points Mr Simons was quite prepared to accept that it would have been open to the inspector to apply the WFD definitions and to conclude that the proposal fell into the disposal category, but then to go on to consider, and if appropriate to decide, that departure from the article 4.1 waste hierarchy was justified by reference to the broader considerations referred to in article 4.2 as transposed into domestic law and policy. It was no part of his case that the WFD forbade any form of waste treatment that fell within the category of disposal. It was his case however that the starting point had to be the correct analysis of what was and what was not recovery, and if the inspector failed to begin with considering and deciding whether the proposal was recovery or disposal then he did not comply with his duty.
94. As I suggested in argument, it could be said that the decision as to whether or not the proposal was recovery or disposal would not be a question solely of interpretation, because what the inspector would need to do on Mr Simons' case would be to decide whether the proposal fell within recovery or disposal as properly interpreted by reference to his findings about the true nature and effect of the proposal. If therefore he proceeded on a correct interpretation of those terms, it would follow that his decision would involve an exercise of planning judgment which could only be challenged on the grounds or irrationality, perversity or Wednesbury unreasonableness. I did not understand Mr Simons to disagree with this, but on his analysis of the case it did not really matter, because his submission was that a correct reading of paragraph 40 compelled the conclusion that the inspector had started from a position of misinterpreting the definitions of recovery and disposal. Alternatively, he submitted, if the inspector had concluded that the proposal properly fell within the category of recovery, that would have been completely inconsistent with the unchallenged evidence that the waste treatment facility in electricity generation mode alone would not have met the R1 threshold, so that in Mr Simons' submission it would obviously have been irrational.
95. That however left open the further possibility, which was that the inspector had decided that the proposal properly fell within the category of recovery because of his analysis of its energy efficiency not only in electricity generation mode alone but also in future CHP mode, that being something about which he was entitled to form a view as a matter of planning judgment which could only be contested if irrational, perverse or Wednesbury unreasonable. In addressing this point Mr Simons submitted that this was not a conclusion which the inspector could properly have arrived at, because the question for him to decide was the proposal's present classification as opposed to its potential future classification, which is irrelevant under the WFD definition. The defendants did not accept this, submitting that this argument confused the narrow question of classification, which the inspector was not obliged to decide, with the wider question about whether or not the proposal accorded with RP Policy 38, which the inspector did have to decide. This is a point of some potential importance, but it is better that I should address it if necessary once I have considered the arguments about what the inspector actually did decide in the relevant part of the decision, to which topic I now turn.
96. The claimant makes no criticism of paragraph 36 which, as Mr Simons observed, began by correctly identifying a key objective of national policy as being to drive the management of waste up the hierarchy, and ended by correctly identifying the objectors' argument as being that the proposal was properly to be classified as an incineration plant and thus within the category of disposal as opposed to energy recovery.
97. The defendants ask me to note that in paragraph 36 the inspector correctly records one of the aims of the waste hierarchy, particularly pertinent in this case, as being to change the old practice of disposing of municipal solid waste to landfill.
98. Mr Simons accepted that in paragraph 37 the inspector began to address the question of the correct categorisation of the proposed facility. He acknowledged, rightly in my judgment, that the inspector recorded - undoubtedly correctly on the undisputed evidence before him - that in electricity generation only mode the plant would not qualify to be treated as a recovery process. He also acknowledged, again rightly in my judgment, that the inspector also recorded - again correctly on the undisputed evidence before him - that in order to qualify the plant would have to raise its energy efficiency by also exporting heat, and that if so the operator could request the EA to reclassify the plant as an energy recovery facility.
99. The defendants submitted that it is clear from paragraph 37 that the inspector was, as would be expected given the evidence and submissions before him, fully aware of the difference between recovery and disposal as defined in the WFD, and of the fact that when applied to the facts of this case the position was that the plant could only fall into the recovery category if and when it became a CHP and met the energy efficiency requirements of R1. It follows, they say, that paragraph 37 can only sensibly be read as a clear finding by the inspector that by reference to the initial proposed operation of the plant it would not qualify as recovery and would therefore properly fall into the disposal category.
100. Mr Simons accepted, rightly in my judgment, that this finding must be implicit in paragraph 37, although he did nonetheless invite me to note that there was no express finding to this effect.
101. In the middle section of paragraph 37 and in paragraphs 38 and 39 the inspector referred to a number of factors relevant to the question of the prospect of the plant, if and when operational, going on to become a CHP facility and to export heat to neighbouring businesses. He made a number of findings relevant to that question which Mr Simons accepted, again rightly in my judgment, were not open to challenge in the sense that they were findings of fact involving the exercise of a judgment which cannot be challenged on the grounds of irrationality or perversity or the like. In short, it is clear in my judgment that the inspector was finding: (a) that it was not possible for the operator to obtain contracts for heat export until the plant was up and running, but; (b) that the operator would want to do so if it could, both in its own financial interests and in order to satisfy one of the conditions attached to the permit by the EA, and; (c) that there was considerable potential for such contracts to be secured given the location of the proposed plant and the other condition attached to the permit that it should be constructed and maintained so as to enable heat to be exported for such purpose.
102. Mr Simons submitted however that the inspector did not make a clear finding in this part of his decision or indeed elsewhere to the effect that the plant would once operational become a CHP plant and would therefore achieve the R1 threshold so as to be classed as a recovery operation under the waste hierarchy. I agree with that submission. The inspector did not do so. He limited himself to identifying those factors which bore on the likelihood of that happening. However I do also accept the submission of the defendants that these paragraphs, when read sensibly, show that the inspector clearly considered that it was likely that this would happen - his use of the words "may well" and "considerable potential" demonstrate this, and there is no reference to any factors which might indicate that it was unlikely that the plant would export heat once operational.
103. As I have already indicated more than once this is the crucial paragraph. Mr Simons submitted that on a proper reading it demonstrated quite clearly that the inspector had, or at least arguably had, fallen into error. His submission was that the inspector had been led into error by the table on p.6 of the 2011 Guidance. As I have already recorded, whilst it is true that the table, read at face value, did indeed show all energy recovery technologies, including electricity only as well as CHP, as higher in the waste hierarchy than disposal, such a reading would be contrary to the definitions used in the WFD, because it is clear that energy recovery technologies involving the incineration of municipal solid waste are not higher in the waste hierarchy than disposal unless they achieve the R1 threshold. Thus Mr Simons' submission was that if the inspector had adopted and applied such an interpretation of recovery and disposal in the waste hierarchy then that would be have been inconsistent with the provisions of the WFD as transposed into domestic law and policy and, hence, wrong as a matter of law. Again, I agree with that submission, and the defendants did not contend, nor in my judgment could they realistically have contended, to the contrary.
104. However the claimant and the defendants parted company on the fundamental question as to whether or not that is what the inspector in fact did.
105. Mr Simons' primary submission was that the clear wording of paragraph 40 showed quite clearly that this is what the inspector had done. He pointed to the concluding sentence of paragraph 40, immediately after the inspector had referred to the table, which read "Thus the proposed waste treatment facility on the appeal site lies higher in the hierarchy that disposal". He submitted that the word "thus" showed quite clearly that it was the inspector's (erroneous) reliance on the table, read literally, which had led him to that conclusion. He submitted that the statement itself was quite unequivocal, and refers disposal not to some sub-category of disposal, namely landfill, as the defendants contend. He submitted that if the facility is said to lie higher in the waste hierarchy than disposal, that can only be sensibly be read as a finding that it falls within the category of recovery. He submitted that the finding was expressly made on the basis that all energy recovery facilities were higher in the waste hierarchy than disposal, not on the basis that the inspector had found that the facility would become a CHP and would at that time achieve the R1 threshold, not only because that is what the clear words of paragraph 40 say, but also because in the preceding paragraphs the inspector had made no such positive finding in relation to CHP.
106. Mr Simons' fallback position was that even if it was not clear from paragraph 40 that the inspector had reached his decision on the basis of a misinterpretation of the WFD definitions, nonetheless the reasoning in paragraph 40 introduced such a state of uncertainty as to the basis for the decision as to give rise to a substantial doubt as to whether he had erred in law, whether by misunderstanding the relevant policy or some other important matter, or by failing to reach a rational decision on relevant grounds (to adopt the words of Lord Brown in South Bucks. v Porter (ante)).
107. The defendants' position was that this involved a complete misreading of paragraph 40. They submitted that paragraph 40 could not be read in isolation from the rest of the decision. They submitted that it was clear from paragraph 37 that the inspector had already decided that the proposed plant in electricity only mode would not fall into the category of recovery, whereas in CHP mode it would. It follows, they submit, that the claimant's interpretation of paragraph 40 involves a conclusion that only 3 paragraphs later in his decision the inspector had not only forgotten what he had already found, and why he had done so, but had then reached a completely contrary conclusion. They submit that it defies belief that any inspector, let alone this highly experienced inspector who had produced what was otherwise a detailed and impressive decision, should make such a gross error. They submit that the obvious conclusion to draw is that what the inspector was doing was to use the table in the DEFRA Guidance to illustrate the difference in environmental terms between the existing disposal of municipal solid waste by landfill and the proposed treatment by energy recovery, initially electricity alone and then probably CHP, and to conclude that in such circumstances the proposed waste treatment facility would lie higher in the waste hierarchy than disposal to landfill.
108. Thus they invite me to conclude that in referring to disposal the inspector was not intending to refer to the strict WFD definition of disposal, but to address the objectors' argument that this proposal was no better than the existing option of disposal by landfill, which he had expressly referred to in paragraph 36. They submit that nowhere does he purport to find that the proposal even in initial electricity only mode would fall into the category of recovery, and that his use of the phrase "higher in the hierarchy than disposal" shows that he was not intending to make any such finding. If that had been his decision, they say, there would have been no need to make the detailed findings about the likelihood of the facility operating as a CHP once up and running which he did make in paragraphs 37 - 39. They submit that this interpretation is entirely consistent with what he said later in paragraph 120, where again he makes the comparison between this proposal and landfill. They say that for him to make such a finding would have been contrary not only to the objectors' case at the inquiry but also to the third defendant's own case, as well as the EA permit.
109. Mr Moffett was disposed to accept that in referring only to "disposal" rather than "disposal by landfill", the inspector had not expressed himself as clearly as he might have done. However he submitted that this was a far more likely explanation for the wording of paragraph 40 than the claimant's construction which, he submitted, could only be explained by the inspector having had what he categorised as a "brainstorm" in between the end of paragraph 39 and the beginning of paragraph 40, which is so unlikely that the court is entitled to reject it out of hand.
110. The defendants reminded me, in accordance with the guidance given by Lord Brown in South Bucks. v Porter and in the other cases to which I have referred, that the court will not readily draw an adverse inference against an inspector that his decision is inadequately reasoned, and that the court should only do so where there is genuine and substantial doubt as to what the inspector has decided, bearing in mind that it is not an examination paper, that he does not have to decide every issue, and that the decision is directed to those who were involved in the inquiry and thus well aware of the issues and the arguments. They say that this is particularly pertinent here, where the inspector was not required to write an examination paper on the true interpretation of the WFD definitions of other recovery and disposal. Instead, they say he was required simply to have regard to the policy of driving the treatment of waste up the waste hierarchy. They say that by deciding as he did that the proposed option, taken as a whole and thus considered both in its initial and likely post-start up operation, could properly be regarded as driving treatment up the hierarchy from the existing option, that of disposal by landfill, he did so. They say that his decision is a perfectly proper application of the practical approach of favouring the outcome which delivered the best overall environmental outcome, as required by the WFD as transposed into domestic law and policy. They say that the claimant's argument involves the proposition that in this case what the inspector was required to do was first to identify the category into which the proposal would fall initially, making it clear why he had reached that conclusion and demonstrating that he had correctly interpreted the WFD definitions, and second to explain on what basis he considered that he was entitled to depart from the waste hierarchy, again making it clear why he was doing so and demonstrating that he had correctly interpreted the WFD as to the circumstances in which he could properly do so. They say that seeking to impose such a demanding standard on the inspector is quite contrary to the proper approach as revealed by the authorities.
111. In seeking to meet these objections Mr Simons maintained his position that the starting point for the inspector, in answering the question whether the proposal would move waste management up the waste hierarchy, was to ask and answer the preliminary question where on the waste hierarchy, applying the WFD definitions, the proposed waste treatment would lie. Otherwise, he said, the rigorous approach employed by the WFD, particularly in relation to the incineration of solid municipal waste, would be completely subverted.
112. He submitted that since the inspector made no clear findings in paragraphs 37-39 as to whether the operation would initially fall into the disposal category or as to whether subsequently it would fall into other recovery, it cannot be said as the defendants have done that his interpretation of paragraph 40 was manifestly inconsistent with the preceding part of the judgment. He submitted that the defendants' argument involves my accepting that the inspector made clear and careful findings in paragraphs 37-39 but then, for some unexplained reason, chose to express himself in unclear and confusing terms in paragraph 40. He submitted that the more likely, or at least as likely an, explanation is provided by his accepting Ms Berry's evidence. He said that since she had asserted an interpretation of domestic law and policy in relation to the waste hierarchy which: (i) had never been disclaimed by the third defendant; and (ii) was remarkably similar to the approach apparently taken by the inspector in paragraph 40, it could not confidently be assumed that the inspector had not when writing his decision decided, wrongly as the defendants are now driven to admit, to follow that misinterpretation of the position. He submitted that what the defendants are really doing is to seek to excise paragraph 40 from the decision and thereby avoiding the difficulty which that paragraph causes them, but that this is impermissible because it effectively involves seeking to rewrite the decision.
(8) My decision
113. Whilst I recognised the force of the claimant's submissions, in the end I am satisfied that they must fail.
114. First, I agree with the defendants' submission that the logical starting point in this case is to understand what issue the inspector was required to decide, and what issue he identified as being that which he was required to decide. I also agree with the defendants' submission that what the inspector had to decide was whether the proposal would result in waste being treated higher up the waste hierarchy, and that this is the issue which he correctly identified as being the issue for his decision.
115. Second, I agree with the defendants' submission that in order to decide this issue the inspector was not obliged in his decision to pose and to answer separately, as if writing an examination paper, all of the sub-issues which might arise, including those as to: (a) what category the proposed waste treatment facility would fall into on opening; (b) if disposal, whether any and if so what justification existed from departing from the waste hierarchy. All that the inspector had to do was to decide whether or not the proposal would result in waste being treated higher up the waste hierarchy, applying that hierarchy practically so as to identify proposals which delivered the best overall environmental outcome.
116. I also agree with the defendants' submission that the inspector was not required to address and answer this issue in a vacuum, as if addressing a legal opinion to someone who he was required to assume had no prior knowledge of a case. He had to address and to decide the issue in the context of the competing cases which had been put to him, which were from the third defendant that the proposal did deliver a better overall environmental outcome than the only other realistic option, namely disposal to landfill, and from the objectors that the proposal really amounted to no more than an incineration facility which should be treated as if it produced no better an outcome than disposal to landfill.
117. I do accept Mr Simons' submission that in addressing and in deciding these issues the inspector did have to understand what the waste hierarchy was, and on a proper interpretation what activities would fall within each category, particularly here those of recovery and disposal. If it was clear from his decision that he had not proceeded on a correct understanding of these matters, or if there was a genuine and substantial doubt as to whether or not he had so proceeded, then I accept that the inspector would have erred and that in principle the claimant would be entitled to relief.
118. However, in my judgment any assessment of his decision has to proceed from the premise that in paragraphs 36 and 37 of his decision he did demonstrate quite clearly that he understood what the waste hierarchy was and that he also understood that electricity generation alone would not qualify the plant as recovery, and that it would be necessary to export heat as well to achieve recovery status. There can be nothing surprising in the inspector reaching that conclusion, since it is obvious from the material before him that this was the position both of the third defendant and the objectors.
119. Having made that initial determination, he then continued in paragraphs 37-39 of the decision to consider factors relevant to the likelihood of the waste treatment facility moving from electricity generation alone to CHP, and thus from categorisation as disposal to potential categorisation as recovery. There is nothing to criticise in his approach here and, as I have said, in fairness to Mr Simons he did not seek to do so.
120. I return then to paragraph 40.
(1) The inspector begins by referring to the fact that there can be misunderstanding in the application of the waste hierarchy in "such situations". It is clear in my judgment that in referring to "such situations" he is referring to the situation he has just been addressing, namely where the plant as initially to be operated will not achieve the R1 threshold, but where it is likely that once it is up and running it will begin to operate as a CHP process and thus potentially achieve recovery status, and also where in either scenario it will recover some energy, so that on a tenable view of matters it will achieve a better overall environmental outcome than disposal to landfill. It is also clear in my judgment that he cannot be criticised for observing that there is scope for misunderstanding in such situations, where one has to balance the fact that at least initially the plant does not achieve recovery status with the overall assessment of the environmental impact of the proposal.
(2) The inspector then continues by referring to the 2011 Guidance. It is clear in my judgment that he was entitled to do so, in that this is not an irrelevant consideration. It is guidance produced under the 2011 Waste Regulations, to which he is plainly entitled to have regard. The Guidance is properly to be read with its accompanying 2011 Evidence Summary, from which it is clear that it is necessary to consider carefully the advantages and disadvantages of the specific waste treatment energy recovery process proposed, and also that disposal to landfill is worse than all types of energy recovery.
(3) There then follow the important two final sentences upon which so much attention has been concentrated.
(4) I agree that if it is a correct, or even a reasonable, interpretation of these sentences that the inspector is concluding that the table shows that all energy recovery technologies, even those falling under the R1 threshold, still fall within the category of recovery and not disposal, then that does betray an error, or arguably an error, of interpretation and hence an error, or arguably an error, of law.
(5) However in my judgment it is clear that these two sentences cannot reasonably be so interpreted. In my judgment what the inspector is doing is to use the table as a convenient shorthand to make the point that even electricity only energy recovery (which falls into the disposal category) is a better environmental option that disposal to landfill, and that here the combination of initial electricity only operation and likely CHP operation once the plant is up and running mean that, all things considered, it lies higher up the waste hierarchy than disposal to landfill, with no prospect of achieving greater energy efficiency through CHP operation and thus of achieving R1 status as this proposal. In that context I accept the defendants' submission that "disposal" is obviously shorthand for "mere disposal to landfill".
(6) I do accept that, read in isolation from the remainder of the decision and without reference to the context in which the decision was made, i.e. the evidence and submissions presented to the inspector at the inquiry, the claimant's interpretation is a tenable one. However, I am satisfied that when the sentences are considered in context, as part of the overall decision on this issue, that interpretation is not one which is fairly tenable. I accept the defendants' submission that it flies in the face of the preceding paragraphs 37-39.
(7) I also consider that when one goes on to read paragraph 48 and then paragraphs 118 and particularly 120 and 121 the matter is really put beyond doubt.
121. In the end, I am left in no doubt that the inspector did what he was required to do, which was to apply the waste hierarchy in a practical way by asking whether the proposal would achieve the best overall environmental outcome, and that he was fully entitled to conclude that the proposal would result in waste being treated higher up the waste hierarchy than disposal to landfill.
122. I am satisfied that the inspector did not purport to decide that the proposed waste treatment facility was properly to be categorised as recovery. I reach that conclusion because: (i) he expressly found in paragraph 37 that it would not fall into that category in electricity only mode, and it would have been completely inconsistent with that finding to have gone on to find in paragraph 40 that it did fall into the recovery category even in electricity only mode; (ii) although he expressly found in paragraph 37 that it could fall into the recovery category in the future if it became a CHP, there is nothing in paragraphs 37-39 or paragraph 40 which suggests that he found in terms that it would become a CHP and would achieve the R1 threshold, so that it is properly to be categorised as recovery. I have no doubt that if he had intended to make a finding on such a basis he would have used words which made that clear. Accordingly, there is no basis in my judgment for the submission that the inspector erred in law by deciding the present categorisation of the proposed waste treatment facility by reference to what might happen in the future. As I have attempted to explain, in my judgment his decision was more nuanced that that, as it was intended and entitled to be.
123. Even however if I was wrong about that, and he did decide, or even arguably decided, that the proposal did fall into the category of other recovery, I would not regard that as an error of law. If he had made such a finding, then it could only have been on the basis that he had made clear findings that it was more likely than not that the proposed waste treatment facility would begin to export heat once up and running, and thus that it was more likely than not that it would achieve the R1 threshold at that point. On that analysis in my judgment a decision that the proposal could properly be regarded as falling within the recovery category was neither irrational, perverse or Wednesbury unreasonable. I would take the view that these are conclusions of mixed law and fact which disclose no error of law and, in relation to the factual findings, are ones which he was reasonably entitled to reach.
124. Given those conclusions I do not need to go on to consider the question of remedy. If I had concluded that the inspector had either misinterpreted the definition of recovery and disposal, or had failed to give sufficient reasons, then I would have felt compelled to quash the decision, albeit that I would have done so with reluctance because - for the reasons I have attempted to give- I think that he could have reached a perfectly defensible reason to the same effect on the material before him.
125. It follows that the application fails and must be dismissed. I thank all counsel for their helpful written and oral submissions.