Skrytek v Secretary of State for Communities and Local Government & Ors

The waste hierarchy does not require a proposal to qualify as “recovery” when it starts operating. For an electricity-generating plant, failure to meet the R1 energy-efficiency threshold means that electricity-only operation is initially “disposal”, although heat export may enable combined heat and power recovery. The hierarchy need not be followed slavishly where another option produces the best overall environmental outcome, justified by life-cycle thinking.

A Planning Inspector’s decision letter must be read straightforwardly, as a whole and in context, without excessive legalism. It need not address every subsidiary issue or be drafted for an uninformed reader, but it must show understanding of the governing legal and policy framework. An apparent reference to disposal therefore disclosed no error of law or inadequacy of reasons when read in context.

Resource Recovery Solutions appealed to a Planning Inspector after Derby City Council refused permission for an incineration and gasification waste treatment facility. The Inspector allowed the appeal, stating that the proposal lay higher in the waste hierarchy than disposal and complied with RP Policy 38.

Dorothy Skrytek challenged that decision under section 288 of the Town and Country Planning Act 1990. The Administrative Court, HHJ Stephen Davies sitting as a Deputy High Court Judge, dismissed the challenge in [2013] EWHC 733 (Admin). The appeal concerned whether the Inspector had wrongly treated an electricity-only facility as recovery and whether his reasoning was legally inadequate or gave rise to genuine doubt about what he had decided.

The Court of Appeal unanimously dismissed the appeal. Lord Justice Beatson gave the principal judgment. Lord Justice Briggs and Lord Justice Maurice Kay agreed.

1. The court substantially adopted the clear reasoning of the judge below. Given the narrow issue, it was unnecessary to repeat the detailed analysis, consistently with the approach stated in [2007] EWCA Civ 1327.
2. It was common ground that an electricity-only facility which failed the R1 energy-efficiency threshold was not initially a recovery process. Exporting residual heat could enable the facility to operate as a combined heat and power recovery facility. The waste hierarchy also need not be followed slavishly. Under Article 4(2) of the Waste Framework Directive 2008/98/EC and Regulation 12(2) of the Waste (England and Wales) Regulations 2011, departure may be justified by the best overall environmental outcome and life-cycle thinking.
3. Planning decision letters must be read straightforwardly, without excessive legalism, as a whole and in context, recognising that they address parties familiar with the issues and arguments. This approach was stated in South Buckinghamshire DC v Porter (No. 2) [2004] 1 WLR 1953 and applied in later reasons cases.
4. Read in context, the Inspector’s express finding that electricity-only operation was not recovery was inconsistent with any supposed reclassification of the facility as recovery. The discussion of future heat export explained the reference to the proposal lying higher than disposal. In that context, disposal meant disposal to landfill. The decision letter was careful, clear and well structured, and disclosed no genuine or substantial doubt, error of law or failure to give adequate reasons.

• Court of Appeal (Civil Division): Appeal dismissed unanimously in [2013] EWCA Civ 1231.
• Administrative Court: HHJ Stephen Davies, sitting as a Deputy High Court Judge, dismissed the statutory challenge to the Inspector’s decision in [2013] EWHC 733 (Admin).
• Planning appeal: The Inspector allowed Resource Recovery Solutions’ appeal against Derby City Council’s refusal of planning permission and concluded that the proposal complied with the relevant development-plan policies.