CA-2025-000986 - [2025] EWCA Civ 1405

The Waste Plan relates to the areas of two unitary authorities, Dorset Council and Bournemouth, Christchurch and Poole Council. Between them they cover the whole of the county of Dorset. The plan was adopted on 31 December 2019.

Policy 1, dealing with sustainable waste management, provides (in part):

“Proposals for the development of waste management facilities must conform with, and demonstrate how they support the delivery of, the following key underlying principles of the Waste Plan:

The Waste Hierarchy - facilities that contribute to moving waste up the waste hierarchy and demonstrate that waste is being managed at the highest appropriate level

Self Sufficiency - facilities that enable the Bournemouth, Christchurch, Poole and Dorset area to move towards net self-sufficiency

Proximity - facilities that adhere to the proximity principle through being appropriately located relative to the source of the waste.”

The “waste hierarchy” is addressed in paras. 3.3 to 3.13 of the Waste Plan. Top priority is given to preventing the production of waste in the first place, then to the reuse of waste which is produced, followed by recycling, recovery (which includes incineration with energy recovery) and last of all landfill.

The self-sufficiency principle means that the two waste planning authorities “should as far as practicable aim to ensure that there is sufficient capacity available within the plan area to deal with its waste arisings” (para.3.15).

Paragraph 3.16 of the Waste Plan explains the “proximity principle”:

“3.16

The principle of proximity means that waste should be recovered or disposed of, as close as possible to where it is produced and has been another important driver for the Waste Plan. The waste infrastructure network must enable waste to be managed in one of the nearest appropriate facilities, through the most appropriate methods and technologies, in order to ensure a high level of protection of the environment and public health.”

This is reflected in Objective 2 which states that “waste management facilities should be located in appropriate locations, as close as practicable to the origin of waste in order to reduce the total mileage waste is transported”.

Chapter 5 of the Waste Plan contains the Spatial Strategy. Paragraphs 5.1 to 5.3 of the explanatory text state:

“5.1

One of the key features of the planning system is to ensure that the spatial aspects of development are properly considered. The main purpose of the Waste Plan is to plan for an appropriate network of facilities to manage waste arisings in Bournemouth, Christchurch, Poole and Dorset to support economic development and meet the needs of society, whilst minimising the impact on environmental assets and amenity.

5.2

The Waste Plan was prepared using the best available evidence to assess current capacity, future waste arisings and the need for new facilities, whilst building in sufficient flexibility to respond to changing circumstances without the need for policy review. The spatial strategy builds on from the vision and objectives seeking to move waste up the waste hierarchy, support the proximity principle and promote self-sufficiency through making provision for a range of sustainable waste management facilities in appropriate locations.

5.3

To achieve this, the Waste Plan has identified in general terms what facilities are likely to be required for the management of different waste streams, and where they will be needed, during the Plan period. The spatial strategy underpins the approach taken to ensure the provision of adequate capacity to manage our expected waste arisings. The detail and justification for the spatial strategy is provided in the chapters that follow.”

The opening paragraph of the Spatial Strategy states:

“The Waste Plan seeks to move waste up the waste hierarchy through making provision for sustainable waste management facilities that optimise waste reduction and reuse, in appropriate locations. This will be achieved by addressing the following identified needs:”

The Strategy then addresses different types of waste management, including:

“Residual waste management - Landfill capacity in the Plan area is diminishing and existing treatment capacity for residual waste is insufficient to meet our projected needs. At the end of the Plan period it is estimated that there will be a shortfall of approximately 232,000tpa of capacity for managing non-hazardous waste.

Appropriate facilities are needed to manage this waste, whilst ensuring that value is obtained through the recovery of energy wherever practicable. Provision will be made for residual waste treatment facility(s) to manage waste derived throughout the Plan area. The need for strategic residual waste treatment facilities will primarily be addressed through new capacity in south east Dorset. However, additional capacity may also be appropriate elsewhere to ensure the capacity gap is adequately addressed and when it will result in a good spatial distribution of facilities providing benefits such as a reduction in waste miles.

Four existing waste management sites are allocated to address this need through the intensification or re-development of existing operations (Inset 7, 8, 9 and 10).”

The four allocations are identified in Policy 3. The WPA and PPL agreed that only two of the allocations were relevant in the appeal, land at Parley and land at Canford Magna. Policy 3 states that proposals may be permitted on those sites subject to complying with relevant policies of the Waste Plan and the allocated uses in inset maps 7 and 8 respectively. Parley has potential to accommodate about 160,000 tonnes a year of residual waste, but is subject to Green Belt policy. Canford has capacity to accommodate about an additional 25,000 tonnes a year of residual waste and is also subject to Green Belt policy.

Policy 4 deals with waste management facilities on sites which have not been allocated in the Waste Plan. So far as material it provides:

“Proposals for waste management facilities on unallocated sites will only be permitted where it is demonstrated that they meet all of the following criteria:

a.

there is no available site allocated for serving the waste management need that the proposal is designed to address or the non-allocated site provides advantages over the allocated site;

b.

the proposal would not sterilise, or prejudice the delivery of, an allocated site that would otherwise be capable of meeting waste needs, by reason of cumulative or other adverse impacts;

c.

the proposal supports the delivery of the Spatial Strategy, in particular contributing to meeting the needs identified in this Plan, moving waste up the waste hierarchy and adhering to the proximity principle; and

d.

the proposal complies with the relevant policies of this Plan.

Proposals should be located:

e.

within allocated or permitted employment land which allows for Class B1, B2 and/or B8 uses; or

f.

within or adjacent to other waste management and/or complementary facilities where the proposed use is compatible with existing and planned development in the locality; or

g.

on previously developed land suitable for employment or industrial purposes.

Waste management facilities may be suitable within an agricultural setting where the proposed use and scale is compatible with the setting, provides opportunities to utilise outputs from the process in the locality and provides advantages over the locations specified in criteria e - g.”

Policy 4 goes on to say that other locations may be permitted but only if no suitable site meeting the criteria of that policy is available.

The Inspector and the Secretary of State decided that the proposal complied with Policy 4. In other words, they regarded it as satisfying criteria (a) to (d) and also at least one of the locational criteria in (e) to (g). In relation to criterion (c), the appellant accepts that the Secretary of State’s decision sufficiently addressed two out of the three considerations referred to, namely “contributing to meeting the needs identified in this Plan” and “moving waste up the waste hierarchy”. The appellant’s reasons challenge focuses upon the final factor in criterion (c), “adhering to the proximity principle”.

Paragraph 6.9 of the explanatory text for Policy 4 recognises the need for flexibility in certain circumstances:

“6.9

Although the Allocated Sites are currently available for waste uses, circumstances may change during the Plan period and sites may not come forward as expected. Private sector businesses and, therefore, commercial considerations will determine whether facilities will actually be built and what types of technology will be brought forward. In other cases, it has not been possible to find sufficient, deliverable sites for allocation in the Waste Plan. The Plan allows for other acceptable sites to come forward for waste uses. Such provision will provide additional flexibility including circumstances where Allocated Sites do not come forward for waste development.” (emphasis added)

Paragraph 6.11 of the explanatory text gives additional guidance on the application of Policy 4:

“6.11

Proposals on unallocated sites will be considered on their merits. They should be in accordance with national policy and the Waste Plan policies and should address the spatial strategy and guiding principles of the Plan, including the waste hierarchy and managing waste in line with the proximity principle. The Waste Planning Authority will need to be satisfied that there are no suitable Allocated Sites capable of meeting the waste management need that would be served by the proposal. Alternatively, applicants would need to demonstrate that the non-allocated site provides advantages over Allocated Sites. This might include co-location with complementary facilities or the provision of a site that can be demonstrated to be in a better strategic and sustainable location and/or that has less impacts than an Allocated Site. The provision of sustainable localised heat and energy sources could also be a positive consideration in appropriate locations.” (emphasis added)

Chapter 7 of the Waste Plan dealt with forecasts of waste arisings through to 2033, the end of the plan period, and the capacity of existing and permitted facilities, so as to arrive at an estimate of the need for additional capacity (7.1). Residual waste was addressed in paras. 7.60 to 7.78. Table 7 identified a shortfall in capacity of 234,000 tonnes a year by 2033. The Waste Plan intended the four allocated sites to be sufficient to meet that need, but added that monitoring would be essential to ensure that appropriate facilities are brought forward (7.76). If that does not happen, the Waste Plan recognised that it may be necessary to rely upon facilities outside the county of Dorset, but that would be contrary to the principles of self-sufficiency and proximity (7.78).

Although the Spatial Strategy states that the need for strategic residual waste treatment facilities will primarily be met by new capacity in south east Dorset, where the greatest concentration of population in the county is located, the South East Dorset Green Belt also covers much of that part of the plan area, including the two allocations referred to above. Policy 21 applies to proposals for waste management facilities in that area of Green Belt:

“Proposals for waste management facilities will only be permitted in the South East Dorset Green Belt where:

a.

they do not constitute inappropriate development; or

b.

the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations to an extent that can demonstrate very special circumstances, including a need for the development that cannot be met by alternative suitable non-Green Belt sites; and

c.

the restoration of the site, where relevant, is appropriate to the inclusion of the land in the Green Belt and enhances the beneficial use of the Green Belt.”

Waste management facilities involving built development are “inappropriate development” unless an exception applies, such as the redevelopment of previously developed land having no greater impact on the openness and purposes of the Green Belt than the existing development (IR 12.105-12.106).

Thus, the Spatial Strategy recognises that additional capacity for residual waste management facilities may be necessary outside the allocated sites to meet the capacity gap, where it will result in a good spatial distribution of facilities and benefits such as a reduction in waste miles (see [16] above).