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

The way in which the parties dealt with Policy 4(c) before the Inspector and the Secretary of State provides the context for the court’s assessment of the legal adequacy of the reasons given on the matter in the decision.

The WPA, the appellant and PPL each provided written closing submissions for the Inspector. These submissions formed the basis for the Inspector’s summary of each party’s case in chapters 6, 7 and 8 respectively of his report. But the Inspector took care to point out that the evidence of each of the parties needed to be read in full in order to gain a proper understanding of their case (IR 6.1, 7.1 and 8.1).

Rule 14(1) of the 2000 Rules required the WPA and PPL to prepare an agreed statement of common ground and to provide it to the Secretary of State and any “statutory party” (as defined by rule 2(1)) within 6 weeks of the “starting date”, (that is the date of the notice under reg.3A that the appeal is to proceed to an inquiry - rule 2(1)). The statement of common ground was to contain agreed factual information about the proposal (rule 2(1)). The statement also had to identify other agreed matters, as well as the matters in dispute, so as to enable the inquiry to focus on those areas which remained in issue (Annexe R to the Planning Inspectorate’s “Procedural Guide: Planning appeals – England”). For example, the proofs of evidence for any party entitled to appear at the inquiry had to be submitted at least 4 weeks before the start of the public inquiry (rule 13).

The statement of common ground agreed between PPL and the WPA contained a table (at para. 7.55) setting out “the main areas of dispute” between those parties. In relation to Policy 4(a) the WPA accepted that the proposed development had some locational advantages but saw those as being related to the use of energy rather than the treatment of waste. The authority said that the “allocated sites have specific advantages and are better placed than the Appeal Site in respect to proximity to residual waste arisings (Proximity Principle) and the potential for co-location with other waste uses”.

PPL contended that the proposal complied with Policy 4(c), but the WPA made this important statement as to how it saw that policy applying in the present case:

“The Council considers that its allocated sites, principally located in and around the South East Dorset conurbation (the location of the majority of residual waste arisings) and near to the Canford MBT plant are preferable for meeting Dorset’s residual waste management needs, accord with the Plan’s Spatial Strategy and would minimise waste miles. The Council’s position is that its allocated sites are better placed to provide co-location with other waste management facilities and therefore are more sustainable. It notes that the proposal is to move residues via long distance transport rather than provide for its management onsite.”

Thus, the WPA’s application of Policy 4 in this case firstly, saw the proximity principle as being relevant to both criterion (a) and criterion (c), so that there was an overlap between the two, and secondly, raised an issue as to whether the allocated sites would be preferable to the appeal site in terms of the Spatial Strategy and the proximity principle.

The main areas of dispute also included a new issue advanced by the WPA, which went beyond the scope of the reasons in its decision notice for refusing planning permission. It contended that the estimated need for additional capacity upon which Waste Plan policies had been based no longer existed:

“The Council accepts that its adopted Waste Plan identified (at the time of adoption) that there was a need for additional residual waste management capacity, and that it allocated sufficient sites to deliver the entirety of that need. Moreover, the best available and up-to-date data now demonstrates that the claimed need based on driving waste out of landfill does not exist. In the absence of such a demonstrable need, the proposal puts the local strategies of a number of Waste Planning Authorities at risk, as it will lock in waste to incineration that would otherwise be recycled for the lifetime of the ERF (minimum 25 yrs). It would, therefore, be contrary to the application of the Waste Hierarchy and the Objectives of the adopted plan.” (emphasis added)

Ms. Felicity Hart, the Minerals and Waste Planning Manager for the WPA, addressed Policies 1 and 4 of the Waste Plan in paras.8.21 et seq of her proof and in paras 2.28 to 2.38 of her rebuttal proof. Her evidence recognised the interrelationship between meeting need, self-sufficiency, moving waste up the waste hierarchy and proximity (see e.g. paras.8.23 to 8.24) as well as the need to compare the appeal proposal with the allocated sites. She pointed out that if the proximity principle is applied in isolation, and if the appeal proposal were to be compared purely with the allocated sites, then the proposed development would increase waste mileage (para.8.48). In relation to the self-sufficiency principle, Ms. Hart acknowledged that a large amount of untreated waste arising in the plan area is transported to facilities outside the county, but she relied heavily on the WPA’s updated estimates of need to argue that the appeal proposal was not required to promote self-sufficiency (para.8.39). For example, she referred to the requirement for additional capacity of 234,000 tonnes a year by 2033 as having more than halved to 84,000 tonnes a year. In her rebuttal proof Ms Hart criticised PPL’s approach for comparing the proposal on the appeal site with proposals on the allocated sites, rather than the sites themselves (para.2.24). Nevertheless, there was no dispute that the effect of a waste development proposal at an allocated site on the openness and purposes of the Green Belt would have to be taken into account. But Ms Hart’s view was that greater weight would be attached to the adverse impact of the appeal proposal on the World Heritage Site and on other heritage assets and landscape (para.2.32).

In his proof of evidence Mr. Alan Potter, who gave evidence for the WPA as an expert in waste management planning, presented reduced estimates of need (as low as 25,000 tonnes a year), which he considered could be met at the Parley site. In addition, Mr. Burton (who appeared for the appellant in court but not at the public inquiry) drew attention to paras.3.12 to 3.31, where Mr. Potter referred to the location of the appeal proposal in the south west of the county, at a considerable distance from the “South East Dorset conurbation” where most of the county’s waste is produced. He compared the appeal site and the allocated sites, referring to the additional 4 million waste miles which the use of the former would involve. But elsewhere he accepted that the plan area’s waste destined for recovery was being sent to an EFW at Bridgewater in Somerset and that the appeal proposal would contribute towards net self-sufficiency (para.3.11).

A considerable part of the WPA’s closing submissions on waste management were devoted to the issue regarding need estimates and the requirement for additional capacity (paras.91 to 119). The Spatial Strategy was addressed more briefly at paras.120 to 125. The WPA submitted that the proximity principle should be applied comparing the appeal site to the Waste Plan’s Spatial Strategy represented by the allocated sites, and not to what is happening in practice to flows of waste to other waste facilities. The WPA accepted that the appeal site was advantageous for dealing with Dorset’s waste compared to Bridgwater, but contended that the allocated sites should be preferred.

Thus, it is plain that the WPA’s case was framed consistently with the main issues as defined in the statement of common ground (see [31]-[32] above).

The same is true of PPL’s case. Mr. Nick Roberts, PPL’s planning consultant, explained at paras 4.2.4 to 4.2.22 of his proof why, although the allocated sites are close to the South East Dorset conurbation, the very significant planning and environmental restrictions affecting those sites constrained realistic development opportunities for an ERF on the necessary scale as proposed at the appeal site. The appeal proposal also presented significant advantages over the allocated sites (4.2.23). Mr Roberts pointed out in para.5.17 that the allocations in the current Waste Plan and previous plans had failed to deliver any increase in residual waste treatment capacity for over 5 years at Parley and for over 17 years at Canford and another allocation at Binnegar. The Parley site could not physically deliver a plant to meet the identified need in any event. Canford could not provide an ERF of a similar scale to the appeal proposal. Mr Roberts referred to the waste flows out of the county, not only to Bridgwater but also to North Wales, Kent and overseas. Thus, none of the residual waste arising in the area of the Waste Plan is subject to final treatment or disposal within that area. About 261,000 tonnes a year of such waste is sent to out of county landfill, or to ERFs out of county or overseas. In these circumstances, he contended that the appeal proposal would be consistent with the proximity principle.

PPL’s closing submissions maintained the same approach.

Other than a bare statement agreeing with Mr. Potter’s evidence as to why the proposal would conflict with Policies 1 and 4, the closing submissions for the appellant and the Portland Association made no reference to those matters, in particular Policy 4(c). The main focus of their submissions was on landscape and heritage issues.

Nevertheless, in her proof of evidence Ms. Tullett explained why she considered that the appeal proposal conflicted with Policy 4 and the proximity principle. She stated that the site is not in south east Dorset but is “stuck out on a limb with no proximity to the existing network of waste disposal and recovery installations of Dorset”. She relied upon the allocation at Parley and an emerging proposal at Canford. Otherwise her proof essentially did little more than refer to parts of the Waste Plan.

Accordingly, I do not accept Mr. Burton’s suggestion that the evidence for the appellant and the Portland Association gave rise to a freestanding, principal controversial issue which the Secretary of State’s reasoning was obliged to address. Their evidence and submissions did not add materially to the case for the WPA on this aspect.