The Court of Appeal has dismissed an appeal against the High Court’s rejection of a challenge to a grant of planning permission for an energy recovery facility, finding that the Secretary of State for Housing, Communities and Local Government had complied with her statutory duty to give reasons for her decision in relation to part of a policy in a statutory development plan.
An energy company had applied for planning permission for an energy recovery facility that would incinerate non-recyclable waste to generate electricity. The local authority refused permission: one of its reasons for doing so was that the proposed development, being on an unallocated site, failed to demonstrate that it would provide sufficient advantages over the allocated sites in the statutory development plan. After the company appealed to the Secretary of State, however, a planning inspector recommended that permission be granted. The Secretary of State accepted that recommendation.
A local campaign group that opposed the development brought a claim for statutory review under Section 288 of the Town and Country Planning Act 1990, arguing that the inspector and the Secretary of State had failed to address the proximity principle in part of a policy contained in the statutory development plan, which meant that waste should be recovered or disposed of as close as possible to where it was produced. They had thus had either misinterpreted the policy or had applied it irrationally, or failed to give adequate reasons on a principal issue concerning it.
The High Court found that the group had interpreted the spatial strategy in the statutory development plan too narrowly by focusing on the location of sites without sufficient regard to the other elements of the strategy. It rejected the group’s criticisms of the inspector for failing to deal with individual criteria in the policy separately and failing to give adequate reasons on the application of the criterion relating to the proximity principle. It concluded that both the inspector and the Secretary of State had given adequate reasons for deciding that the proposal complied with the entirety of the policy.
Ruling on the group’s appeal, the Court of Appeal found that its case failed to acknowledge that there was some overlap between different parts of the policy, and did not acknowledge the interrelationship between the elements of the spatial strategy and the criteria in the policy. Two allocated sites relied on by the local authority were in the Green Belt: no planning permission could be obtained unless the company demonstrated very special circumstances sufficient to clearly outweigh harm to the Green Belt. In the inspector’s view, it was difficult to see how very special circumstances could be shown if an energy recovery facility could be provided acceptably outside the Green Belt.
The Court found that the inspector and the Secretary of State had given adequate, and indeed ample, reasons for the decision to grant permission, specifically in relation to the issues concerning the spatial strategy, the proximity principle and the policy criterion relating to it. The group’s suggestion that opponents of the development did not know why they had failed on those matters, or the implications of the decision for future planning applications, was untenable.
