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

On a challenge under Town and Country Planning Act 1990, the court must distinguish questions of legal interpretation from planning judgment. The meaning of development-plan policy and statutory terms such as recovery and disposal is a question of law. The application of that policy to the facts remains a matter for the planning decision-maker, subject to public-law review.

The waste hierarchy must be applied by reference to the Waste Framework Directive definitions, including the R1 threshold for municipal-waste incineration. It is not, however, a rigid order which prevents consideration of the best overall environmental outcome. An inspector may conclude that a proposal moves waste treatment higher than landfill without deciding that the proposal is presently classified as recovery. A decision letter must be read fairly and in context; it need not address every sub-issue separately.

The claimant applied under section 288 of the Town and Country Planning Act 1990 to challenge a planning inspector’s decision allowing an appeal against refusal of permission for a waste treatment facility in Derby.

The challenge concerned the inspector’s treatment of the waste hierarchy. The claimant argued that the inspector had misconstrued the Waste Framework Directive definitions of recovery and disposal, and had failed to give adequate reasons. The defendants submitted that the inspector had applied the hierarchy practically by comparing the proposal with disposal to landfill and assessing the best overall environmental outcome.

1. The application was dismissed. The inspector’s decision was not shown to be outside his powers or to involve a material error of law.
2. Under section 288, the court reviews legality rather than the planning merits. The meaning of development-plan policy is a question of law, while its application to facts involving planning judgment is reviewable only on ordinary public-law grounds such as irrationality or perversity. The Tesco Stores Ltd v Dundee City Council approach applied.
3. The inspector had to understand the waste hierarchy and apply the Waste Framework Directive definitions of recovery and disposal. Electricity-only operation did not satisfy the R1 threshold and therefore fell within disposal; heat export through a CHP process could potentially achieve recovery status.
4. That did not require the inspector to set out every sub-issue as if writing an examination paper. The operative question was whether the proposal would move waste treatment higher up the hierarchy by delivering the best overall environmental outcome. The hierarchy was not a rigid bar against comparing energy recovery with disposal to landfill.
5. Read in context, paragraph 40 of the inspector’s decision used “disposal” as shorthand for disposal to landfill. It did not decide that electricity-only operation was recovery. The preceding findings and later conclusions demonstrated that the inspector understood the R1 distinction and reached a legally permissible planning conclusion.
6. The reasons were intelligible and adequate. There was no genuine and substantial doubt about what the inspector had decided or why. The application therefore failed and was dismissed.

The judgment itself records that an earlier inspector’s decision was quashed by the Administrative Court in [2011] EWHC 1726 (Admin), after which the matter was remitted to a new inspector. This judgment concerned the subsequent challenge to that inspector’s decision.