Golf Operations Ltd v First Secretary of State

MR JUSTICE OUSELEY: This is an application under Section 288 of the Town and Country Planning Act 1990 to quash the decision of an Inspector dated 20th December 2004 in which he dismissed an appeal made by the claimant against the decision of Northamptonshire County Council, dated 25th October 2003.

The County Council had refused permission for development which comprised an 18-hole golf course and a 9-hole golf course with ancillary facilities, including a clubhouse, maintenance building and car park. The development was intended to be a pay-as-you-play golf course aimed primarily at novice golfers. It was intended to construct, as part of the course, a series of mounds, 2 to 4 metres high, between the fairways, as an aid to these novices. This construction would require the importation of about 429,000 cubic metres of inert waste, the import of which would fund the construction of the golf course. The Inspector dismissed the appeal after holding a public inquiry. The application had been dealt with by Northamptonshire County Council because the extent of the importation of waste material made it a County matter.

The Inspector, it was agreed, correctly identified the four main issues. These were: firstly, whether the incorporation of inert fill into the construction of the golf course represented the Best Practicable Environment Option (BPEO) for this material, having regard to local policies; secondly, the need for a pay-as-you-play golf course in this location, including the need for the level of mounding sourced from inert waste; thirdly, whether the proposal would have an adverse impact upon the landscape character of the area; and lastly, the loss of best and most versatile agricultural land.

It is accepted that, although there were these three other issues, it was the first issue which was critical, because of the way in which it affected the Inspector's reasoning on the other issues. If the claimant succeeded on that issue, it was accepted that the decision letter should be quashed. The other reasons were not freestanding ones which could sustain the decision. The claimant's challenge therefore revolves around the Inspector's approach to BPEO.

BPEO is a non-statutory concept, the relevance of which to the application and appeal derives in this way. Schedule 4 to the Waste Management Licensing Regulation 1994 SI 1056 implements the Waste Framework Directive. At paragraph 2.1 of Schedule 4 it sets out the duty as follows:

The National Waste Strategy adopts the Royal Commission definition of BPEO, which is that it is the outcome of a systematic decision-making procedure which:

The Landfill Regulations 2002 SI 1559 are also relevant to the claimant's arguments. By Regulation 3, a "landfill" is a waste disposal site for the deposit of waste on to or into land. But it falls outside that definition by Regulation 4 where suitable inert waste is used for redevelopment, restoration and in-filling work or for construction purposes. The claimant's case was that that was what the proposal for mounding alongside the proposed fairways would amount to. The evidence at the Inquiry established, and this was not disputed before me, that construction and demolition waste was not required by conditions, on those planning permissions which required restoration through the import of such waste, to be sorted into inert and non-inert waste and that there was a component of construction and demolition waste which was not inert. It was therefore contended by the claimant that the use of that unsorted waste constituted waste disposal by landfill and that that was lower down the hierarchy than the use for redevelopment and construction which the claimant's proposal involved for inert waste.

The thinking behind that sort of point was considered by the Inspector who held an inquiry into the Northamptonshire Waste Local Plan. She concluded at paragraph 26:

The Waste Local Plan Inspector also pointed out that the non-inert nature of construction and demolition waste would mean that the restoration by landfill of sites in the River Nene Valley would require a high and costly standard and it could not be assumed that the necessary inert material would be available. If construction and demolition waste were not separated out between the truly inert and the rest, there could be a shortage of suitable mineral extraction sites for construction and demolition waste, which in turn might lead to the need for more landfill sites.

The Inspector set out accurately the arguments before him as follows:

The Inspector then considered the report of the Inspector into the Waste Local Plan to which I have referred and to which I shall return. He considered the availability of void space and the need for it to be filled, as well as the allocation of further sites for mineral extraction which would require filling for restoration purposes. He noted the Local Planning Authority's historical experience that there had been an excess of waste facilities which had led to delays in the restoration of mineral extraction sites and landfill sites.

He then pointed to what the Local Planning Authority said, which he appears to have accepted, that:

The first three grounds of challenge are interrelated. All attacked the Inspector's apparent conclusion that the use of inert waste for mounding on the golf course was at the same level in the waste hierarchy as would be its use in the restoration of landfill or mineral extraction sites. This error was then said to have been fed into his conclusion that the BPEO for this waste stream was not reuse for the development or construction of golf courses. All this was said to stem from the Inspector's failure to draw the necessary distinction between: (1) construction and demolition waste, which would be screened for the purposes of this proposal, would thus be inert waste and thus its use on the golf course would not be landfill or waste disposal but reuse; and (2) unscreened construction and demolition waste, which would not be inert and the use of which in landfill and mineral extraction sites would constitute landfill or waste disposal. If landfill, it would represent a use away from which the National Waste Strategy was seeking to move and, if disposal, it was a use below reuse in the hierarchy.

Mr White for the claimant accepted that if precisely the same screened waste had been used in the restoration of landfill or mineral extraction sites, it would have been legitimate for that to have been held equivalent to the golf course use and he could not have complained about such a conclusion. He accepted also that he could not have complained if the Inspector had spelt out why he was treating use in landfill and mineral extraction sites as equivalent in the waste hierarchy or in the BPEO assessment to reuse by way of mounding on the golf course.

In essence, it was said, the Inspector's approach, in treating as of equal rank both reuse on the golf course and use in the restoration of landfill and mineral extraction sites, would have been unobjectionable if he had been talking of the same materials. But his conclusion in the last sentence of paragraph 20 of his decision letter introduced by the word "therefore" could not be justified when the material which would be used in the landfill or mineral extraction site was not the same as inert waste, because it would be unscreened construction and demolition waste.

The claimant's first three related grounds of challenge were thus that the Inspector had ignored relevant conclusions of the Waste Local Plan Inspector or had failed to give adequate reasons for disagreeing with those conclusions. He had ignored her acceptance that construction and demolition waste used in landfill and mineral extraction sites was not screened and so was not inert nor required to be. This was also consistent with answers given in cross-examination by the Local Planning Authority's witness.

I accept that construction and demolition waste in the area of Northamptonshire County Council is not generally screened nor required to be screened at present by conditions on the planning permissions for landfill and mineral extraction sites and that it cannot therefore all or necessarily even in part be said to be inert.

The Inspector has not drawn upon any significant distinction between screened and thus inert construction and demolition waste, and unscreened construction and demolition waste which may not therefore be inert; see, for example, paragraphs 19 and 20 of the decision letter. This is the distinction drawn by the claimant. It is a distinction acknowledged as being of some importance by the Waste Local Plan Inspector, in the context of the need to increase the supply of truly inert materials used in the restoration of flood plain sites and in seeing how much void space was needed to cope with non-inert construction and demolition waste.

The appeal Inspector accepted that the claimant's proposed use would be a reuse and not landfill for the purposes of the Landfill Regulations and in paragraph 20, second sentence, took the view that the use of inert fill in the restoration of mineral extraction sites or landfill sites would be waste disposal as the claimant had contended at the inquiry.

The Inspector to my mind approached matters in the way in which he did, because to him the distinction between the use of inert waste for mounding on the proposed golf course and the disposal of waste, even if it was unseparated inert and non-inert waste, to fill and so restore worked-out mineral extraction sites or for the reinstatement of landfill sites for beneficial use, was one of language and not of substance. He approached the latter as involving restoration and the use of non-inert waste for that purpose as restoration. Although that was not reuse in the Landfill Regulations definition because the waste was not inert, it was in essence in the same level in the hierarchy. It is clear from his refusal to draw the distinction relied on by the claimant that he was aware of it. He simply did not attribute to it the significance which the claimant argued for. Instead he regarded it in this case as an essentially artificial distinction. He did not see the waste stream, screened or unscreened, as merely being dumped in a landfill site for want of anything better, such as golf course construction. He saw it as being used in a restoration of mineral extraction sites and in the reinstatement of landfill sites for beneficial use. This explained why he did not see his approach as conflicting with the move away from landfill.

I would accept that paragraph 20 does not draw a clear distinction between the waste hierarchy and the BPEO when it should have been recognised that the waste hierarchy was but a component in the BPEO analysis. However, in reality, on the Inspector's approach, there was no very large distinction between how he assessed the position in the waste hierarchy and how he assessed the BPEO. It is very clear from paragraph 22 of the decision letter that he thought greater benefits would be derived from using this waste stream for the restoration of exhausted mineral workings and the restoration of landfill sites to beneficial use, than from using it on a golf course for mounding. That is a wholly legitimate planning conclusion for him to come to. It is also clear from his analysis that even if he had concluded on a legalistic approach that the Landfill Regulations meant that use for golf course mounding as opposed to the restoration of exhausted mineral workings or a landfill site was higher in the hierarchy, it would not have affected his BPEO conclusions.

The fallacy in the claimant's argument is this: the Inspector did not ignore or overlook the distinction on which the claimant's arguments relied. He regarded it as unimportant. That is a planning judgment to which he was entitled to come. The waste stream here could be used to provide restoration for mineral extraction and landfill sites even if not sorted, because of the considerable quantity needed; even in the absence of planning permissions requiring screening it would be useful to those purposes. Those purposes required material, even if not screened, which had to come from somewhere. I deal later with the position in terms of the availability of arisings and capacity.

Alternatively, if the material were screened, there was an even greater need for it for that same purpose, with the stricter Environment Agency requirements involved in the consideration of future extraction sites. There was a continuing need for restoration, as new mineral sites were allocated and worked as discussed by the Inspector in paragraphs 15 and 18. Accordingly there was no error of law or inadequacy in reasoning but instead a legitimate planning conclusion as to the reality of the waste hierarchy and, in any event, as to what was BPEO for this waste.

These considerations also link into ground 4. The claimant contends that the Inspector, in concluding that there was a continuing need for fill for landfill sites, relied upon statistics for void capacity of about 7 million cubic metres which the Waste Local Plan Inspector had criticised as unsoundly based. The claimant placed some weight here upon her criticisms of the statistical basis for the Waste Local Plan and in particular of the available capacity for landfill. The claimant submitted that the appeal Inspector had ignored her reservations about the void space.

True it is that she criticised the statistical accuracy of the Local Planning Authority calculations of void space and its relationship to the various waste streams which would fill it. But she also said, as the Inspector had recorded, that the parties appeared to be agreed that there was sufficient capacity to accept waste for the next five to six years, and longer for some waste streams.

The terms of her reservations in the body of her report are important:

As I read those passages, the point is not that there is a shortage of capacity for the truly inert construction and demolition waste, but rather the extent of the capacity for unscreened construction and demolition waste was unknown and may be overstated. Her concern therefore was addressed to the possible need to provide more general construction and demolition waste capacity rather than capacity for inert waste properly so called. That that is her true concern can be seen from earlier passages set out above, which occur later in the report, which urged greater efforts to differentiate between inert construction and demolition waste and the rest, so that more inert waste could be available for restoration.

It follows from this that the Waste Local Plan Inspector's concern about the weaknesses of the statistics did not relate to the availability of sites for screened but rather to unscreened construction and demolition waste. In principle therefore, this does not help the claimant because his case concerned screened waste.

In any event, the Appeal Inspector was aware of those criticisms and refers to them in paragraph 14 of his decision letter. He has to grapple with their significance not knowing how the issue would resolve itself. It is clear from the Waste Local Plan Inspector's report that (a) there is capacity at least for 5 to 6 years (and more for some streams) and so there is no immediate shortage requiring capacity for any waste to be provided on proposed golf courses, and (b) in the state of unknowing, and even taking double the error figure suggested of 1 million cubic metres, there is still ample capacity for ten years.

There is nothing wrong in law with the Inspector approaching the uncertain implication of the statistics and their weaknesses, in the way in which he did. It was a reasonable approach leading to a reasonable allowance and on any view there was as yet plenty of void capacity for construction and demolition waste. If so, this is important on the Inspector's approach to the BPEO issue, because he had shown that there was a greater need for waste to be used in the restoration of mineral extraction sites and of landfill sites than for it to be placed on the proposed golf course.

The Inspector saw, as he was entitled to, that this was not simply an alternative to disposal in landfill, but was an alternative to disposal in a way which would bring about the restoration of mineral extraction sites or landfill sites to a beneficial purpose.

There is no error of law, no material consideration ignored, no failure to decide the BPEO with the relevant aims in mind and therefore, despite Mr White's able advocacy, this application is dismissed.

MS RAHMAN: My Lord, I do make an application for my costs. I have a statement of costs to hand up to you.

MR JUSTICE OUSELEY: Yes, thank you. Is it agreed?

MR WHITE: Yes.

MR JUSTICE OUSELEY: Just tell me how much is sought.

MS RAHMAN: The total amount is £5,624, my Lord.

MR JUSTICE OUSELEY: And there is no dispute about the principle. There will be an order for costs in the defendant's favour in the sum of £5,624.

MR WHITE: My Lord, I wonder if I might also have 14 days from the date of the transcript to consider the appellant's notice?

MR JUSTICE OUSELEY: Yes.

MR WHITE: Thank you.