R (on the application of Arthur Scarisbrick) v Secretary of State for Communities and Local Government Whitemoss Landfill Ltd (Interested Party)

Hearing date: 2 March 2017

Judgment Approved by the court for handing down (subject to editorial corrections)

Introduction

In this claim for judicial review we must decide whether the Government's policy for "nationally significant hazardous waste infrastructure" was properly interpreted and lawfully applied in the making of a development consent order under section 114 of the Planning Act 2008.

The claimant, Mr Arthur Scarisbrick, has permission to apply for judicial review of the decision of the defendant, the Secretary of State for Communities and Local Government, on 19 May 2015, to make the White Moss Landfill Order. The order granted consent for the construction of a hazardous waste landfill facility with a capacity of 150,000 tonnes per annum, and the continuation of filling with hazardous waste of the adjacent landfill site, known as Whitemoss Landfill, at White Moss Lane South in Skelmersdale. When making it, the Secretary of State confirmed the requisite powers for the compulsory acquisition of land under sections 122 and 123 of the 2008 Act. The applicant for the order was the interested party, Whitemoss Landfill Ltd., the operator of the existing landfill site. The Secretary of State's decision to make it was in accordance with the recommendation made to him in the report, dated 21 February 2015, of the Examining Authority (Ms Wendy Burden, Mr Philip Asquith and Mr Robert Macey), after an examination undertaken between 21 May and 21 November 2014.

Mr Scarisbrick owns land next to the site of the proposed development, and lives nearby. With a number of other local residents, who had formed a group called Action to Reduce and Recycle Our Waste ("ARROW"), he objected to the draft order and took part in the examination. His claim challenging the development consent order was issued on 30 June 2015. Permission to apply for judicial review was initially refused in the Planning Court. But at a hearing on 5 October 2016 I granted permission, on a single ground. Because of the possible wider importance of the issue raised, which concerns government policy in the "National Policy Statement for Hazardous Waste: A framework document for planning decisions on nationally significant hazardous waste infrastructure" ("the NPS"), published by the Department for Environment, Food and Rural Affairs in June 2013, I ordered that the claim was to be heard in this court.

The issue in the claim

The issue raised in the single ground on which Mr Scarisbrick has permission to apply for judicial review is whether, in making the development consent order, the Secretary of State erred in his approach to the assessment of the need for the project by misconstruing and misapplying the policy in section 3.1 of the NPS, which says that relevant applications will be assessed "on the basis that need has been demonstrated".

The 2008 Act

In Parts 3, 4 and 5 of the 2008 Act, provision is made for the granting of development consent for a "nationally significant infrastructure project" – defined in section 14 as including "the construction or alteration of a hazardous waste facility" (subsection (1)(p)). Under section 30 a "hazardous waste facility" is within section 14(1)(p) only if it will be in England (subsection (1)(a)), and, "in the case of the disposal of hazardous waste by landfill or in a deep storage facility", its capacity is "more than 100,000 tonnes per year" (subsections (1)(c) and (2)(a)). Section 37 provides for the making of an application for a development consent order.

Section 5, "National Policy Statements", provides that the Secretary of State may issue a national policy statement that "sets out national policy in relation to one or more specified descriptions of development" (subsection (1)(b)). Section 5(5) provides that a national policy statement may, among other things, "set out, in relation to a specified description of development, the amount, type or size of development of that description which is appropriate nationally or for a specified area" (subsection (5)(a)); "set out criteria to be applied in deciding whether a location is suitable (or potentially suitable) for a specified description of development" (subsection (5)(b)); "identify one or more locations as suitable (or potentially suitable) or unsuitable for a specified description of development" (subsection (5)(d)). Section 5(7) provides that "[a] national policy statement must give reasons for the policy set out in the statement". Section 6(1) requires the Secretary of State to "review each national policy statement whenever [he] thinks it appropriate to do so", and, if there has been "a significant change in any circumstances …" (section 6(3)(d)). Section 9 requires a proposed national policy statement to be laid before Parliament before it is designated and takes effect. Section 13, "Legal challenges relating to national policy statements", provides for "proceedings for questioning a national policy statement …" to be brought by a claim for judicial review within six weeks of its designation or, if later, its publication (subsection (1)).

In Part 6, "Deciding Applications for Orders Granting Development Consent", section 103 provides that the Secretary of State "has the function of deciding an application for an order granting development consent". Section 104, "Decisions in cases where national policy statement has effect", applies to "an application for an order granting development consent if a national policy statement has effect in relation to development of the description to which the application relates" (subsection (1)). It provides, in subsection (2), that "[in] deciding the application the Secretary of State must have regard to "(a) any national policy statement which has effect in relation to development of the description to which the application relates (a "relevant national policy statement") …". Subsection (3) states that "[the] Secretary of State must decide the application in accordance with any relevant national policy statement, except to the extent that one or more of subsections (4) to (8) applies". Subsection (7) applies "if the Secretary of State is satisfied that the adverse impact of the proposed development would outweigh its benefits". Under section 114(1) the Secretary of State must either make the order granting development consent or refuse it. Section 118 requires a challenge to a development consent order to be made by a claim for judicial review.

In Part 7, "Orders Granting Development Consent", section 122, "Purpose for which compulsory acquisition may be authorised", provides that an order granting development consent "may include provision authorising the compulsory acquisition of land only if the Secretary of State is satisfied that the conditions in subsections (2) and (3) are met" (subsection (1)). The conditions in subsections (2) and (3) are that the land "(a) is required for the development to which the development consent relates", "(b) is required to facilitate or is incidental to that development", or "(c) is replacement land which is to be given in exchange for the order land …" (subsection (2)), and "… that there is a compelling case in the public interest for the land to be acquired compulsorily" (subsection (3)). Under section 123(1) and (2) an order granting development consent may include provision authorizing compulsory acquisition of land if the Secretary of State is satisfied that the application for the order included a request for compulsory acquisition of that land.

The application for a development consent order

Whitemoss Landfill is in the Green Belt, beside the M58 motorway on the southern side of Skelmersdale. A planning permission granted in October 2011 approved the disposal of hazardous waste on the site until 31 December 2018. The environmental permit restricts the disposal of hazardous waste to 149,500 tonnes per annum. But the annual throughput of waste has always been much less than that – at its highest 76,000 tonnes in 2013, and as low as 22,654 tonnes in 2011.

In June 2013 the inspector who conducted the examination into the Lancashire Site Allocation and Development Management Policies Local Plan – for the administrative areas of Lancashire County Council, Blackburn with Darwen Council and Blackpool Council – concluded that "there will be a continuing need to find a location for the disposal of perhaps up to 17,000 tonnes per annum throughout the plan period" (paragraph 155 of his report). The three authorities had concluded that there was "no need to specifically identify a new site or an extension to an existing site in this [local plan]", and that the originally proposed allocation for a hazardous waste landfill at Whitemoss Landfill should be deleted (paragraph 156). Instead, they now proposed "to include a criteria-based policy which would support permission for a new site, or an extension to an existing site, where there is a demonstrable need" (paragraph 157).

The application for the development consent order was submitted by Whitemoss Landfill Ltd. on 20 December 2013. The application site extends to about...