Wiltshire Waste Alliance Ltd v Secretary of State for Communities And Local Government

In a challenge to a planning decision, a fall-back position may be taken into account only if it is legally possible and likely to occur on the evidence. Its assessment is fact-sensitive and involves broad planning judgment. A planning permission must be construed with documents expressly incorporated into it, but an incorporated description is not necessarily a condition prohibiting greater use. Where the permission’s limits and any material change of use are material to the assessment, the decision-maker must address them. Environmental assessment baselines must reflect likely significant effects. Planning reasons are read fairly and as a whole; an overly forensic reading is inappropriate.

Wiltshire Waste Alliance Ltd brought a claim under section 288 of the Town and Country Planning Act 1990 challenging an inspector’s decision allowing Hills Waste Solutions Ltd’s appeal against refusal of planning permission for the permanent retention and extension of a materials recycling facility at Lower Compton.

The inspector relied on planning fall-back scenarios involving waste processing and landfill. The claimant challenged the interpretation of the site allocation policies, the scope of existing permissions, the availability of access, the treatment of Hills Waste’s evidence, and the adequacy of the Environmental Statement. The Secretary of State conceded that the inspector had erred concerning the planning consents for areas F and G.

1. Grounds 2 and 5 succeeded. The inspector’s decision was liable to be quashed because he failed properly to consider the limits of the existing consents. The Environmental Statement depended on the baseline scenarios, so the error also affected the assessment of likely significant environmental effects.
2. Planning policies expressed in broad terms should be interpreted in their policy context. The Wiltshire and Swindon Waste Core Strategy and Site Allocations Local Plan could reasonably be read as supporting strategic waste management at the site, including a new or extended materials recycling facility. The inspector had not erred on ground 1.
3. A fall-back position must be legally possible and likely to occur on the available evidence. Fall-back cases are fact-specific and involve broad planning judgment. The inspector was entitled to treat continued use of the site and shared vehicular access as realistic. The challenge based on the restoration plan and removal of internal haul roads therefore failed.
4. The application documentation for area G had been incorporated into the permission. Although its stated throughput was not a condition prohibiting larger quantities, the inspector had to consider whether the proposed increase would amount to a material change of use by intensification. That issue had not been properly addressed and had to be reconsidered, together with the consent for area F.
5. The inspector was entitled to regard Hills Waste’s evidence as robust. His reasons were economical but adequate when read in the context of the report as a whole. Rationality is a high hurdle, and the claimant had not surmounted it.
6. Under the EIA Regulations, “likely” significant effects require a serious possibility. A sympathetic, non-legalistic reading of the inspector’s reasoning showed that the additional landfill capacity was not treated as an irrelevant consideration. The challenge on that point failed.

The claim was brought at first instance under section 288 of the Town and Country Planning Act 1990 against a planning inspector’s decision allowing Hills Waste Solutions Ltd’s statutory appeal and granting planning permission.