The Capel Case: When things don't go to plan

A recent High Court case saw a parish council successfully challenge plans to build an incinerator in Surrey on the grounds of "soundness". Helen Nicholson examines the ruling and its implications for waste authorities

Firstly, here are the facts of the Capel Case. Surrey Waste Management, a subsidiary of SITA, applied for planning permission for an energy-from-waste incinerator at the Clockhouse Brickworks at Capel, a greenfield site of special scientific interest (SSI) near the Surrey/Kent Border.

The Surrey waste plan development plan documents, which were adopted in 2008, had identified Capel as a suitable site. Surrey County Council had been trying to secure additional waste facilities at Capel for ten years to no avail.

Permission for planning
Planning permission at the site had previously been quashed in 2002 and permission had also been refused at sites in Redhill and Guildford. But in December last year, the council granted permission for the proposal, which was to process 110,000 tonnes of waste a year, exporting 8MW to the national grid, and producing the equivalent electricity to the needs of 8,000 homes. A challenge was subsequently brought by Capel Parish Council to quash both the grant of planning permission and the relevant parts of the Surrey waste plan.

The parish council brought the challenges on the grounds that the local transport network was inadequate for the proposal and that there was in any event a more suitable site at the Copyhold Works in Redhill.

In February this year, Mr Justice Collins found in the parish council's favour. The High Court ruled that the planning inspector had erred in law when approving the Surrey waste plan.

The inspectors should have considered whether the policies contained in the plan were sound and not assumed that was the case. Consequently, the capacity requirements for waste treatment and the identification of sites were not properly analysed and were simply presumed to be correct. The planning permission was quashed by the High Court, as was the decision to allocate the Capel site in the council's waste plan development plan documents.

In summary, what were the High Court's findings? The inspectors examining the Surrey waste plan relied on guidance set out in PPS12, which stated there was a presumption "that the DPD is sound unless it is shown to be otherwise as a result of evidence considered at the examination".

The inspectors could not be criticised for the approach they took to the question of soundness given the way in which the guidance was framed. However, between the examination of the Surrey waste plan and the Capel case being heard, the Court of Appeal had ruled that the guidance referred to above was unlawful as there was no presumption of soundness. As a consequence, PPS12 was amended and the relevant guidance now states that "the starting point for the examination is the assumption that the local authority has submitted what it considers to be a sound plan".

Final judgment
In his judgment, Mr Justice Collins ruled that, "It was... incumbent on the inspectors to consider for themselves whether the policies were sound. The inspectors... should have required a rigorous examination of any suggested alternative sites and whether in reality an incinerator alternative to landfill was achievable." An examination of this nature was not carried out.

So, where does the decision in Capel leave waste authorities? The challenge from Capel Parish Council specifically suggested the Clockhouse Brickworks site was the wrong site for an incinerator and made claims about air quality, health impacts and traffic generation issues. While the decision was not made on these grounds, they are nonetheless important issues for waste authorities to consider in future.

It is understood that the county council does not intend to appeal the decision of the High Court, but the Capel decision confirms the importance of the independent examination process in testing the soundness of policies and proposals in development plan documents.

Presumption of soundness
The High Court has made clear that the starting point is no longer one of a presumption in favour of soundness, but merely an assumption that the local authority has submitted what it considers to be a sound plan.

This means that in advancing policies for waste facilities through the development plan process, waste planning authorities will need to ensure the proposals are supported by an appropriate evidence base with a view to them surviving the "rigorous examination" envisaged by Mr Justice Collins.

Helen Nicholson is a solicitor at Pinsent Masons

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