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

The appellant’s case fails to acknowledge that there is some overlap between different parts of Policy 4. For example, the need for additional waste management facilities is a consideration when applying criteria (a), (b) and (c). Not surprisingly, the Spatial Strategy permeates Policy 4. It is expressly referred to in criterion (c), but it is also the foundation for the allocation of sites in south-east Dorset by Policy 3 (and see p.27 of the Waste Plan). Accordingly, the Spatial Strategy is also reflected in criteria (a) and (b) which raise issues as to whether allocated sites are available to meet a need, or whether a non-allocated site would perform better than an allocated site, and whether a proposal on a non-allocated site would prejudice the delivery of an allocated site to meet waste needs.

The appellant’s case also fails to acknowledge the interrelationship between the elements of the Spatial Strategy and of the criteria in Policy 4. I agree with the judge’s summary of the Spatial Strategy in her judgment at [90] (see [59] above). The Strategy seeks inter alia to move waste up the waste hierarchy, promote self-sufficiency and support the proximity principle. Although the appellant focuses on the proximity principle in Policy 4(c), that criterion also requires that a proposal for waste management on a non-allocated site should move waste up the waste hierarchy and support the Spatial Strategy, which would include other policy objectives such as self-sufficiency. Policy 4(c) applies to all those considerations.

A proposal may well be well-located in relation to the sources of waste arisings, for example, a site in south east Dorset, and yet not perform so well in relation to moving waste up the waste hierarchy. Alternatively, a proposal may perform well in relation to the waste hierarchy and self-sufficiency but increase waste mileage and so not accord with the proximity principle. Plainly, the application of Policy 4 is fact-sensitive. A decision-maker is entitled to decide how much weight to give to a proposal’s performance against each element of the Spatial Strategy and to arrive at a balanced judgment as to the overall degree of compliance with the Strategy. Alternatively, he or she might decide that a proposal performs so badly in relation to one element of the Strategy as to merit refusal of the application on that basis alone. These are matters of planning judgment and weight for the decision-maker which are not open to challenge in the courts save on genuine public law grounds.

Paragraph 6.11 of the Waste Plan recognises that allocated sites may not come forward and so the plan allows for other non-allocated sites to be developed if acceptable, providing additional flexibility in the delivery of the Strategy.

Given the approach taken by PPL and the WPA in the statement of common ground and in their evidence to the circumstances of this case and the application of the Spatial Strategy, including the proximity principle, it was necessary for a comparison between the PPL proposal and the development potential of the allocated sites to be made. The WPA relied upon their estimate of the additional waste mileage which the PPL proposal would cause compared to development of the allocated sites. On this basis, the WPA said that the proposal did not comply with the proximity principle (reported at IR 6.135). Of course, that comparison begged the question whether development of the allocated sites will take place. If it does not, then in the absence of any other development proposal on a non-allocated site regarded as an acceptable location, the waste generated in the county of Dorset will continue to be transported to other counties and overseas. The Inspector judged at IR 12.95 that PPL’s proposal would represent a “clear improvement” on the existing situation, in which waste would continue to be moved to landfill and ERFs beyond Dorset. The Inspector accepted PPL’s case, summarised at IR8.29 that its proposal would lead to a reduction in waste miles relative to the existing situation. That plainly was an application of the proximity principle. In effect, the Inspector accepted PPL’s case that the proximity principle in para. 3.16 and Policy 4(c) of the Waste Plan should not be applied exclusively by reference to allocated sites in south east Dorset, if development has not come forward on those sites and, indeed, there are strong planning objections to them being developed for waste management facilities on the scale needed for the plan area.

The two allocated sites relied upon by the WPA are in the Green Belt. There has been no challenge to the approach which the Inspector took to the application of Green Belt policy. ERF development would be treated as “inappropriate development” in the Green Belt and no planning permission would be obtainable unless the developer demonstrated “very special circumstances” sufficient to “clearly outweigh” harm to the Green Belt and any other harm (2023 NPPF para.153). The Inspector found that ERF development at Canford Magna would cause a very high level of harm to the Green Belt and other harm (IR 12.105). He added that it was difficult to see how very special circumstances could be shown if an ERF could be provided acceptably outside the Green Belt and the PPL scheme demonstrated that it could (IR 12.107). At IR 12.108 the Inspector accepted that the Canford Magna site might well perform better as regards the Spatial Strategy of the Waste Plan. Plainly the Inspector had in mind the policy preference for a site in south east Dorset. In saying that in this respect the Canford Magna site was better than the Portland site, the Inspector was undoubtedly applying the proximity principle. But he then made the unimpeachable point that that factor in favour of Canford Magna had to be balanced against the substantial weight to be given to the Green Belt and other harm it would cause. None of this reasoning is open to legal challenge. It further demonstrates that in the circumstances of this case, the proximity principle could not be applied, and PPL’s appeal determined, without a comparison being made between the appeal site and the two allocated sites.

This analysis accords with the succinct formulation of the main issue in relation to Policy 4(c), addressing the Spatial Strategy including the proximity principle, agreed by the WPA and PPL in the Statement of Common Ground (see [32] above).

Accordingly, the Inspector and the Secretary of State gave adequate, indeed ample, reasons for the decision to grant planning permission and specifically in relation to the issues concerning Policy 4(c), the Spatial Strategy and the proximity principle. As would be expected (see Sir Keith Lindblom SPT in R (Tesco Stores Limited) v Stockport Metropolitan Borough Council [2025] EWCA Civ 610 at [36]), they understood and applied the policies with realism and common sense. The appellant’s suggestion that opponents of the development do not know why they failed on those matters, or the implications of the decision for future planning applications is untenable.

For completeness I will deal with two further small points made on behalf of the appellant.

First, Mr. Burton referred to IR 6.139, where the Inspector included the following as part of his summary of the WPA’s case:

“6.139

To be clear, even if the appellant’s case on need is accepted, meaning that there would be compliance with Policies 1, 4 and 6 of the Waste Plan 2019, the proposal would still not accord with the development plan as a whole because of the significant landscape and heritage harms. Indeed, the three reasons for refusal put forward by the Council each individually justify a refusal of planning permission and stand on their own terms.”

He submitted that this passage, along with the Secretary of State’s reliance upon it in part of his skeleton argument, indicated that the Inspector treated this as a concession that the need/capacity issue could be dispositive of the application of policies 1, 4 and 6. According to the appellant, this lent support to the submission that the Inspector had not applied the proximity principle in Policy 4(c) and/or that there was a failure to give adequate reasons on a principal controversial issue.

There is nothing in this point. It is inconsistent with the appellant’s acceptance that the Inspector did apply and give adequate reasoning in relation to all the other parts of Policy 4, including the reference in criterion (c) to the waste hierarchy. The Inspector’s explicit consideration in the IR of all those matters shows that neither he nor the Secretary of State proceeded on the basis that if PPL’s assessment of need was accepted rather than the WPA’s, there was no requirement to go any further because that was sufficient to demonstrate compliance with Policy 4 (and also policies 1 and 6). What matters is the substance of the Inspector’s report and the Secretary of State’s decision letter read fairly and as a whole. As explained above, the Inspector and the Secretary of State did apply and reach conclusions on the application of all relevant parts of Policy 4, giving adequate reasons.

Furthermore, IR 6.139 was taken from para.128 of the WPA’s closing submissions. The real thrust of both paragraphs is that even if PPL were to overcome the first reason for refusal (see [3] above), the second and third reasons for refusal, relating to landscape and heritage harms, were each advanced as freestanding reasons justifying the dismissal of the appeal. There is no evidence that either the parties at the inquiry, or the Inspector in his report, or the Secretary of State in her decision letter, acted on the basis that there would be nothing left of the WPA’s first reason for refusal if PPL’s case on need were to be accepted.

Second, it is said that the cross-references in IR 12.95 to earlier parts of the IR shows that the Inspector had in mind only the transport, climate change and carbon emissions and not the proximity principle. But an Inspector’s Report, or a Decision Letter, must be read fairly and as a whole. The references to “waste mileage” and “a clear improvement on the existing situation” show that the Inspector had in mind PPL’s case at, for example, IR 8.29. There is no obligation on an Inspector to provide comprehensive cross-referencing. It was therefore inappropriate for Mr. Burton to attempt to read down the language of IR 12.95 by using the cross-references which the Inspector did give. In any event, there is an obvious connection between reduction in waste mileage, and reduction in carbon emissions and climate change.