Lowther, R (on the application of) v Durham County Council & Anor

Burning waste on a significant scale does not invariably create a separate waste-disposal use for planning purposes. The land use must be characterised objectively as a question of fact and degree. The object of the activity, its scale and its relationship to the principal process are relevant.

Where waste is wanted and used as fuel in a manufacturing process, its incidental disposal may form part of the manufacturing use. A separate or dual use may nevertheless arise where waste disposal is the paramount object, or where disposal and the ultimate process are each activities of substance. A change in fuel can also alter the character of an existing use sufficiently to constitute a material change of use.

A lime producer partly replaced petroleum coke with secondary liquid fuel derived from solvent waste. Durham County Council's planning sub-committee accepted legal advice that this energy-recovery process formed part of lime manufacture and did not constitute a material change of use requiring planning permission.

A local resident sought judicial review, contending that the advice misstated the effect of the planning authorities concerning indivisible processes and waste disposal. Gibbs J dismissed the application. The resident appealed.

The central issues were whether significant burning of waste necessarily or potentially constituted a separate land use, whether the particular use of secondary liquid fuel did so, and whether changing the fuel had materially altered the character of the existing lime-manufacturing use.

1. Appeal dismissed unanimously. Lord Phillips MR delivered the leading judgment. Pill LJ agreed with his answers to the four issues, and Sir Martin Nourse agreed with both judgments.

2. Per Lord Phillips MR, significant burning of waste does not necessarily constitute a separate planning use. An indivisible process may comprise two planning activities, but its different aspects do not invariably require separate categorisation. The activity must be assessed objectively as a matter of fact and degree. Where waste is wanted for an ulterior process, its disposal during that process may be incidental to the principal use.

3. Waste disposal may nevertheless constitute a separate or concurrent use. That may occur where disposal is the paramount object, notwithstanding some useful by-product, or where the balance between disposal and the ultimate process justifies treating both as uses of the land.

4. The secondary liquid fuel was acquired for its valued properties as a fuel and used as an integral part of lime manufacture. Its legal classification as waste did not itself turn fuel combustion into a separate waste-incineration use. The council's preferred advice therefore contained no error of law in concluding that there was no additional waste-disposal use.

5. A change in the source of fuel is capable of changing the character of an existing land use. On these facts, however, planning permission for purpose-built tanks included permission to store the secondary liquid fuel, and the remaining process involved transmitting it to the kiln, burning it and controlling the resulting emissions. The character of lime manufacture had not altered sufficiently, as a matter of fact and degree, to produce a material change of use under section 55 of the Town and Country Planning Act 1990.

6. Per Pill LJ, a planning officer's duty extends beyond avoiding material misdirection. The officer must provide sufficient information and guidance for members to apply the relevant statutory criteria, including guidance on the applicable legal test. Merely presenting conflicting legal opinions will often be insufficient. Here the report recommended advice which the court held to be legally sound, so the duty was discharged.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The court upheld the dismissal of the judicial-review application and refused permission to appeal to the House of Lords.
2. High Court, Queen's Bench Division, Administrative Court: Gibbs J dismissed the application to quash Durham County Council's decision that the substitution of secondary liquid fuel did not constitute a material change of use. No citation is stated in the judgment.