Golf Operations Ltd v First Secretary of State

Best Practicable Environmental Option (BPEO) is the overarching requirement in waste decision-making. It is not equivalent to placing a proposal within the waste hierarchy. The hierarchy is one component of the wider assessment, alongside the proximity principle, self-sufficiency and relevant social, economic, environmental and land-use effects.

An inspector may treat the distinction between reuse of screened inert waste and restoration using unscreened construction and demolition waste as immaterial where the material serves the beneficial restoration of mineral workings or landfill sites. That is a planning judgment, provided the inspector has considered the distinction and explained the basis of the conclusion. A court will not interfere where the conclusion is legally available and relevant considerations have been addressed.

The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s decision dismissing its appeal against Northamptonshire County Council’s refusal of planning permission.

The proposal was for golf courses and ancillary facilities, with substantial mounding formed from imported inert waste. The claimant argued that screened inert waste would be reused for construction, whereas locally available unscreened construction and demolition waste used in mineral workings and landfill restoration would involve disposal or landfill lower in the waste hierarchy.

The central issues were whether the inspector had misunderstood BPEO, failed to distinguish screened from unscreened waste, ignored criticisms of available void capacity, or failed to give adequate reasons.

1. Application dismissed. The inspector’s decision was not vitiated by error of law, failure to consider a material consideration or inadequate reasoning. The defendant was awarded costs of £5,624.
2. BPEO derives from the statutory and policy framework governing waste decisions. It requires selection of the option providing the greatest environmental benefit or least environmental harm at acceptable cost, in the short and long term. The waste hierarchy, proximity principle and regional self-sufficiency are important considerations, but the hierarchy is only a component of the BPEO assessment.
3. The court accepted that the proposed screened material would be inert and that its use for golf-course mounding would fall within Regulation 4 of the Landfill Regulations 2002, rather than the definition of landfill in Regulation 3. The inspector nevertheless viewed the use of waste for restoration of mineral workings and landfill sites as a competing beneficial use. He was entitled to regard the legal distinction between reuse and disposal as insufficient, in the circumstances, to determine BPEO.
4. The inspector had not overlooked the distinction between screened and unscreened construction and demolition waste. He recognised it but regarded it as unimportant because restoration purposes required substantial quantities of material, including material that was not screened. His view that restoration to beneficial use produced greater benefits than golf-course mounding was a legitimate planning judgment.
5. The Waste Local Plan inspector’s reservations about capacity principally concerned the extent of capacity for unscreened construction and demolition waste. They did not establish an immediate shortage of capacity for screened inert waste. The appeal inspector had considered those reservations and was entitled to conclude that there was sufficient capacity for the relevant period and a continuing need for restoration material.

The claimant challenged an inspector’s decision dated 20 December 2004, which had dismissed its appeal against Northamptonshire County Council’s refusal of planning permission dated 25 October 2003. The High Court dismissed the section 288 application.