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

The single issue in this appeal is whether the Secretary of State failed to comply with her statutory duty to give reasons for her decision on a planning appeal in relation to part of one policy in a statutory development plan, Policy 4(c) of the Bournemouth, Christchurch, Poole and Dorset Waste Plan 2019 (“the Waste Plan”).

On 3 September 2020 the second respondent, Powerfuel Portland Limited (“PPL”), made an application to the third respondent, Dorset Council, as the waste planning authority (“WPA”) for a detailed planning permission for an energy recovery facility (“ERF”) on the Isle of Portland at Portland Port. The ERF would incinerate non-hazardous residual waste from local authority and commercial and industrial sources and produce about 15 MWe of electricity for export to the national grid via a new 33kV substation and potentially also to berths in the port and a local heat network. The ERF would treat up to 202,000 tonnes of waste a year.

On 24 March 2023 the WPA refused the application for planning permission for three reasons, the first of which was:

“The proposed development, being located on a site that is not allocated in the Bournemouth, Christchurch, Poole and Dorset Waste Plan 2019, fails to demonstrate that it would provide sufficient advantages as a waste management facility over the allocated sites in the Plan. This is by reason of its distance from the main sources of Dorset’s residual waste generation and the site’s limited opportunity to offer co-location with other waste management or transfer facilities which, when considered alongside other adverse impacts of the proposal in relation to heritage and landscape, mean that it would be an unsustainable form of waste management. As a consequence, the proposed development would be contrary to Policies 1 and 4 of the Bournemouth, Christchurch, Poole and Dorset Waste Plan 2019 and paragraph 158 of the NPPF.”

The second reason for refusal related to adverse landscape impacts upon the Isle of Portland within the setting of the Dorset and East Devon Coast World Heritage Site. The third reason for refusal related to adverse impacts upon a range of heritage assets.

PPL appealed against that refusal to the Secretary of State, who recovered the matter for her own determination. A Planning Inspector held a public inquiry in December 2023 which sat for 11 days. The Inspector produced a report (“IR”) to the Secretary of State on 24 June 2024 in which he recommended that the appeal be allowed and planning permission granted. On 16 September 2024 the Secretary of State issued a decision letter (“DL”) in which she accepted that recommendation and granted permission. The reasoning in the DL essentially adopted that which was set out in the IR. In DL 4 the Secretary of State agreed with the Inspector’s conclusions except where otherwise stated.

The appellant, Stop Portland Waste Incinerator, and the Portland Association were made parties pursuant to rule 6(6) of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000 (SI 2000 No. 1624) (“the 2000 Rules”) and so were entitled to appear at the inquiry (rule 11). They instructed counsel to present a joint case and called witnesses. They took a full part in the inquiry (IR 1).

Ms. Deborah Tullett is a resident of Portland and a member of the appellant. In her second witness statement, she states that the appellant is a campaign group formed in 2020 to oppose the ERF project. It has about 650 supporters. The appellant is an unincorporated association acting through Ms. Tullett, its co-ordinator.

The appellant brought a claim in the High Court under s.288 of the Town and Country Planning Act 1990 (“TCPA 1990”). Eyre J granted permission to apply for statutory review on ground 1 but refused permission on grounds 2 and 3. Ground 1 alleged that the Inspector and the Secretary of State failed to address the “proximity principle” in part of Policy 4(c) of the Waste Plan and thus had either misinterpreted Policy 4 or had applied it irrationally, or had failed to give adequate reasons on a principal, controversial issue concerning that policy.

The appellant’s renewed application for permission in relation to grounds 2 and 3 was adjourned to a rolled up hearing to be dealt with at the substantive hearing of ground 1. The matter came before Lang J. In her judgment on 2 April 2025, the judge agreed with Eyre J that permission should be refused on grounds 2 and 3 because they were unarguable. She rejected ground 1 and dismissed the claim, holding that no errors had been committed in relation to the interpretation of Policy 4 of the Waste Plan, there had been no irrationality in the application of policy and no failure to give adequate reasons.

The application for permission to appeal to this court only sought to pursue the reasons challenge under ground 1 and not the interpretation or irrationality arguments. Lewison LJ granted permission to appeal on that basis alone.