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

The Inspector analysed in some detail the relevant policies of the development plan in IR 5.1 to 5.25. The judge set out particularly relevant paragraphs in [76] of her judgment. The Inspector correctly directed himself in relation to Policies 1 and 4 (IR 5.5 and 5.7 to 5.9). No issue is taken on that part of the IR.

In IR 12.2 the Inspector identified the main considerations for the determination of the appeal. He defined the “waste issue” as being whether the proposal would comply with relevant policies of the Waste Plan and represent a sustainable form of waste management in relation to inter alia need. He then dealt with the waste issue at IR 12.3 to 12.14.

At IR 12.3 the Inspector recorded that all parties agreed that the Waste Plan should not be treated as “out-of-date” for the purposes of applying para.11(c) and (d) of the National Planning Policy Framework (“the NPPF” and see [50] below). The key parts of the Inspector's reasoning between IR 12.5 and IR 12.11 are set out in the judgment of Lang J at [80].

The WPA had argued that the Waste Plan could be treated as up to date while at the same time arguing that the need for additional residual waste management capacity had been overtaken by events. That need was significantly lower than the need upon which the Waste Plan had been predicated and it would continue to fall. At an early point during its operating lifetime the capacity of the appeal proposal would significantly outstrip the predicted needs of the plan area (IR 12.5).

The Inspector considered that the WPA’s need case was incompatible with maintaining that the Waste Plan was up to date. The whole approach of the Waste Plan, including its objectives and Spatial Strategy allocations in Policy 3 and Policy 4 were based upon the need identified in chapter 7 and Table 7 of the Plan. If the Plan’s forecasts were not to be relied upon, then the approach of the Waste Plan did not remain tenable (IR 12.6).

The Inspector concluded that, subject to one agreed adjustment, which pushed the shortfall identified upwards, there was no justification for setting aside the need figures in Table 7 of the Waste Plan and so the plan was “up-to-date” (IR 12.8 to 12.9).

The Inspector said that if the Secretary of State were to prefer the WPA’s evidence on need then in terms of para.11(d) of the NPPF, the policies in the Waste Plan which were most important for determining the application would have to be treated as “out-of-date” and the “tilted balance” applied. In short, planning permission should be granted for the development unless inter alia any adverse impacts of doing so would “significantly and demonstrably outweigh the benefits”, assessed against the policies of the NPPF taken as a whole (explained more fully in Monkhill Limited v Secretary of State for Housing, Communities and Local Government [2020] PTSR 416; [2021] PTSR 1432).

However, the Inspector, having decided that the important policies in the Waste Plan for determining the application were up to date, did not apply the tilted balance. Instead, he determined the application taking into account the relevant policies of the development plan (s.70(2) of the TCPA 1990) and applying the presumption in favour of the development plan in s.38(6) of the Planning and Compulsory Purchase Act 2004.

At IR 12.11 to 12.13 the Inspector began to make his comparison between the appeal proposal and the two allocated sites, Parley and Canford Magna, a main issue identified by PPL and the WPA for the purposes of applying Policy 4 including criterion (c):

“12.11

Returning to my analysis, the approach of the Waste Plan 2019 to dealing with the need it identifies is to allocate sites in Policy 3. However, and perhaps reflective of the fact that these allocations have not been taken up despite having been around for some time, the Waste Plan 2019 also includes provision for waste management facilities to come forward on sites that are not allocated. This is an unusual approach; Policy 4 is permissive of proposals for waste management facilities on unallocated sites where, amongst other things, the non-allocated site provides advantages over the allocated site.

12.12

In relation to the allocated sites, I heard that there is an unimplemented permission for a relatively small-scale ERF (60,000 tpa of residual waste) in the Green Belt at Parley (Inset 7) that is very unlikely to come forward. At Canford Magna (Inset 8), also in the Green Belt, there is an application before BCP Council for a facility designed to process 260,000 tpa of residual waste. Clearly, MVV, the operator behind that application, is of a similar mind to the appellant in terms of the continuing need for residual waste management.

12.13

The workings of Policy 4 require the decision-maker to make a qualitative comparison between the proposal at issue here, and the allocated sites. If it can be concluded that the proposal provides advantages over the allocated site, then, subject to other relevant policies, it could be found to comply with the Waste Plan 2019.”

The Inspector noted that waste management facilities had not been developed on the allocated sites, despite the length of time for which they had been identified in development plans, and that the development permitted at Parley was unlikely to come forward. He then noted that there was an undetermined planning application for an ERF at Canford. The Inspector identified the need to compare the appeal proposal and the allocated sites and correctly directed himself in accordance with Policy 4 and para. 6.11 of the Waste Plan that if the proposal provided advantages over the allocations it could be compliant with the Waste Plan, subject to other relevant policies. The Inspector then said at IR 12.14 that he would return to that subject after applying the policies on the historic environment and landscape, because non-compliance with either of those policies would have implications for the application of Policy 4.

The Inspector considered the heritage issue at IR 12.15 to IR 12.55 and the landscape issue at IR 12.56 to IR 12.72. He concluded that with one exception involving “less than substantial harm”, the proposal would cause no harm to the setting or significance of any heritage asset and that one instance of harm would be outweighed by the benefits of a “heritage mitigation strategy” (IR 12.53). The Inspector then found that the proposal “would sit comfortably in the context of the port” and would have no harmful impact on the area of National Landscape, the Heritage Coast, or the World Heritage Site and its setting and would have no harmful landscape or visual impacts on receptors on land or at sea (IR 12.64 to IR 12.72).

At IR 12.74 to IR 12.97 the Inspector dealt with a range of planning considerations. He found that none of them weighed against the proposal and some would be beneficial (IR 12.97). At IR 12.96 he said that he would deal with the comparison with the approach of the Waste Plan in the following section “Overall balance and conclusions”, which runs between IR 12.98 and IR 12.110.

At IR 12.98 to 12.99 the Inspector summarised his earlier conclusions on impact on landscape and heritage assets and other planning considerations and found that the proposal complied, or did not conflict, with development plan policies, leaving to one side Policy 4. The Inspector addressed that policy and struck the final planning balance at IR 12.100 to IR 12.110:

“12.100

That said, there is Policy 4 of the Waste Plan 2019 to consider. As I have set out above, this allows proposals for waste management facilities to come forward on non-allocated sites where the non-allocated site provides advantages over the allocated sites. Unusually, this means that the decision maker in this case must carry out a comparative exercise between the proposal at issue, and allocated sites in the Waste Plan 2019. That is not a straightforward exercise.

12.101

Having said that, the comparison with the site at Parley (Inset 7) is not too difficult for the simple reason that the site is relatively small, and the approved proposal for an ERF upon it is very unlikely to come forward. In any event, the site could not cope alone with the residual waste needs set out in the Waste Plan 2019, and it is in the Green Belt. The appeal site has obvious advantages over that site in that it can cope with the residual waste needs, it is not in the Green Belt, and it can take place without landscape or heritage harm and bring forward other benefits like shore power and a district heating network.

12.102

Comparison with the site in Canford Magna (Inset 8) is more complicated. There is a scheme before BCP Council for a facility upon it that would be able to deal with the residual waste needs set out in the Waste Plan 2019. However, the site is in the Green Belt, in a very sensitive location environmentally.

12.103

In their consultation response, Dorset Council suggests that their evidence on ‘need’ presented at this Inquiry should be considered, in the context of the capacity of the facility proposed, but conclude that the benefits of the location (co-location with other waste management facilities and location in south-east Dorset/BCP Council, the consequent reduction in distance travelled by the waste, and the diversion from landfill) are all benefits which potentially support a case that very special circumstances exist.

12.104

As far as the allocated site is concerned, which is what Policy 4 actually refers to, I take the appellant’s point that it is not big enough to accommodate the facility that has been proposed – the ‘red line’ of the application is well beyond the confines of the allocation which suggests that the allocated site is too small to cope with the residual waste needs in the Waste Plan 2019, that I have found to be reasonable.

12.105

Turning to the proposal itself, which I feel bound to do notwithstanding what Policy 4 says, it would obviously be inappropriate form of development in the Green Belt, and an enormous imposition that would massively reduce openness. The level of Green Belt harm would be very high indeed. As the Framework sets out, substantial weight would have to be attached to that harm. The Framework goes on to say that the very special circumstances that would be required to justify the proposal would not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm resulting from the proposal, is clearly outweighed by other considerations. In relation to ‘any other harm’ I understand that there are aviation concerns about the proposed stack, amongst other things. The appellant has also pointed out that the scheme is tightly constrained and may not be able to deliver carbon capture facilities.

12.106

In my view, the ‘other considerations’ required to justify this level of harm to the Green Belt, and any other harm, would have to be very weighty indeed. The Council in their consultation response has suggested that the proposal is too big (based on their revised position on need) but because the proposal at Canford Magna is in accord with the spatial strategy of the Waste Plan 2019, it may be (in a smaller form I surmise) suitable.

12.107

I have my doubts about that approach. First, as I have set out above, I do not agree with the Council’s latest stance on ‘need’ and rely instead on the Waste Plan 2019. Second, and more importantly, one of the first questions the decision-maker must ask about a proposal like that at Canford Magna in the Green Belt, is whether the provision could be made outside the Green Belt. The scheme at issue here shows that it can be, and, in that situation, it is difficult to see how the necessary very special circumstances could be shown.

12.108

I do not doubt that the proposal at Canford Magna might well perform better in terms of the spatial strategy in the Waste Plan 2019 but that would have to be balanced against the Green Belt harm to which substantial weight would have to be attached, and any other harm. To complicate matters further in terms of the spatial strategy, the locational benefits of the Canford Magna site might well be offset by its inability to accommodate carbon capture technology, and of course IBA would need to be removed by road.

12.109

I have to say that the approach the Waste Plan 2019 requires is an unusual one, but it has been found sound and adopted. For the reasons set out, I find that the proposal at issue here would have very clear advantages over the allocated sites (and the proposals for them) and as such, it complies with Policy 4. On the basis that it complies with Policy 4, I also find that it accords with Policy 1. [8.60-8.71]

12.110

As a result, I am satisfied that the proposal complies with the development plan taken as a whole and in my view, there are no material considerations that would justify a decision contrary to the provisions of the development plan. [6.137-6.140, 6.172-6.177, 7.93, and 8.198-8.204]”

The Secretary of State agreed with the Inspector on the need issue (DL 16).

She then adopted the Inspector’s reasoning on the application of Waste Plan Policies 1 and 4, including the analysis comparing the appeal proposal with the Parley and Canford Magna sites (DL 17):

“The Secretary of State had regard to the Inspector’s comparative analysis between the proposed site and sites allocated within the WP at Parley and Canford Magna. For the reasons given at IR12.11-12.13 and IR12.100-109, the Secretary of State agrees with the Inspector that the site at Parley could not cope alone with the residual waste needs set out in the WP 2019, and it is in the Green Belt (12.101). The Secretary of State also agrees that the ‘red line’ of the planning application at Canford Magna is well beyond the confines of the allocation which suggests that the allocated site is too small to cope with the residual waste needs in the WP (IR12.104). She further agrees that although the proposal at Canford Magna might well perform better in terms of the spatial strategy in the WP that would have to be balanced against the Green Belt harm and any other harm (IR12.108). Overall, the Secretary of State agrees with the Inspector that the proposal would have clear advantages over the sites allocated within the WP (and the proposals for them) and as such, it complies with Policy 4 of the WP, and further agrees that it accords with Policy 1 (IR12.109). In reaching this conclusion, the Secretary of State has taken into account the representation received from Savills on 13 September 2024 on behalf of the applicant for the proposal at Canford Magna (APP/23/00822/FUL), which draws her attention to the fact that the Canford Magna application, which has been recommended for approval by officers, was due to be determined by the LPA on 12 September 2024, but has been deferred to a later committee. She has also taken into account the representation from Stop Portland Waste Incinerator dated 14 September 2024 which draws the committee report on the Canford Magna proposal to her attention, and the representation from tor&co dated 16 September 2024 which provides a legal opinion on the Canford Magna proposal. The Secretary of State does not consider that this information changes her conclusions on the compliance of the proposal which is the subject of this decision letter with Policy 4 or Policy 1 of the WP, and does not change her decision overall. She further does not consider it is necessary to refer back to parties on this matter before reaching her decision.”