(1) HIGHLAND COUNCIL AGAINST SCOTTISH MINISTERS and COMBINED POWER AND HEAT (HIGHLANDS) LIMITED and (2) ROSS ESTATES COMPANY against SCOTTISH MINISTERS and COMBINED POWER AND HEAT (HIGHLANDS) LIMITED
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2014] CSIH 74
XA5/13 and XA7/13
Lord President
Lord Menzies
Lord Clarke
OPINION OF THE LORD PRESIDENT
in the appeals under section 239 of the
Town and Country Planning (Scotland) Act 1997
by
HIGHLAND COUNCIL
Appellant;
against
SCOTTISH MINISTERS
First Respondents:
and
COMBINED POWER AND HEAT (HIGHLANDS) LIMITED
Second Respondent:
and
ROSS ESTATES COMPANY
Appellant
against
SCOTTISH MINISTERS
First respondents:
and
COMBINED POWER AND HEAT (HIGHLANDS) LIMITED
Second Respondent:
For first appellant: Findlay; DWF Biggart Baillie
For second appellant: Armstrong QC; Anderson Strathern
For first respondent: Wilson QC, Barne; Scottish Government Legal Directorate
For second respondent: Shepherd & Wedderburn – Non Participating Party
28 August 2014
Introduction
[1] On 9 May 2008, the second respondent (the developer) applied to the first appellant (the planning authority) for planning permission for the development of a residual waste to energy combined heat and power plant with ancillary development at Cromarty Firth Industrial Park, Invergordon. It is proposed that the plant should process up to about 100,000 tonnes of waste per annum. The treatment of the waste will generate steam to heat nearby houses or to generate electricity. The application proposes that the plant will treat only waste that originates in the Highland area. At present, such waste is transported to Falkirk for landfill or to Dundee or Shetland for incineration.
[2] After an abortive first inquiry and a decision that was quashed, the first respondents appointed Mr Richard Dent (the Reporter) to determine the appeal of new. Ross Estates as an objector was a party to the second inquiry. The Reporter allowed the appeal subject to certain specified conditions. We now have to consider appeals against that decision by the planning authority and Ross Estates. The developer did not take part in the hearing.
[3] In view of the criticisms of the Decision Notice taken on behalf of Ross Estates, it is necessary to set out the legislation, the planning policies and the Reporter’s findings and conclusions in some detail.
The legislative framework
EC Directive 2008/98/EC (The Waste Directive)
[4] The Waste Directive, together with the earlier Directive 2006/12/EC, established a legislative framework for the handling of waste in the EC. Directive 2006/12/EC provided that the essential objective of a waste management regime should be the protection of human health and of the environment. It provided that recovery of waste should be encouraged and that plans should be drawn up to reflect those and other principles in the Directive.
[5] The Waste Directive provides the framework. Its aim is to increase society’s ability to recycle and re-use waste and to manage and handle waste without any harmful impacts on the environment. Article 4 sets out a waste hierarchy as follows:
“1. The following Waste Hierarchy shall apply as a priority order in waste prevention and management legislation and policy:
(a) Prevention
(b) Preparing for re-use
(c) Recycling
(d) Other recovery; e.g. energy recovery; and
(e) Disposal.
2. When applying the Waste Hierarchy referred to in paragraph 1, Member States shall take measures to encourage the options that deliver the best overall environmental outcome. This may require specific waste streams departing from the hierarchy where this is justified by life-cycle thinking on the overall impacts of the generation and management of such waste.”
EC Directive 2011/92/EC
[6] The Directive requires the submission of an environmental impact analysis in the case of certain development projects.
The Town and Country Planning (Environmental Impact Assessment) (Scotland) (Regulations) 2011 (‘EIA Regulations’)
[7] The EIA Regulations give effect to the aims of the Directive. The parties agree that the proposed development is a Schedule 1 development, for which regulation 3 requires the submission of an environmental statement complying with Schedule 4.
Planning policies
The Scottish Planning Policy
[8] The Scottish Planning Policy (SPP) (February 2010) implements the Directives and the EIA Regulations. It provides inter alia as follows:
“[212] The Scottish Government has adopted Zero Waste as a goal. This means eliminating the unnecessary use of raw materials, sustainable design, resource efficiency and waste prevention, reusing products wherever possible, and recovering value from products when they reach the end of their lives either through recycling, composting or energy recovery, in accordance with the waste hierarchy. Policy on waste management is driven by European and national legislation including the EU waste Framework Directive and the Landfill (Scotland) Regulations (2003). The Scottish Government has targets for municipal waste including:
- Increasing the proportion recycled or composted to 40% by 2010, 50% by 2020 and 70% by 2025,
- A 5% limit on landfill of municipal waste by 2025
- To stop the growth in municipal waste by 2010, and
- 25% limit on energy from mixed municipal waste.
Achieving these targets will require a reduction in the amount of waste produced and a significant increase in waste management infrastructure. Additional capacity will also be required to treat commercial and industrial waste. The planning system has a crucial role in ensuring that installations are delivered in time to allow waste management targets to be met. A significant commitment to enabling the development of new waste management infrastructure through the planning system is required.”
The Policy expresses the proximity principle as follows:
“[213] A sustainable approach to waste management planning relies on a number of objectives including those reflected in the Zero Waste Plan and the waste hierarchy, reduced reliance on landfill and the precautionary and proximity principles. The waste hierarchy favours prevention over reuse, recycling, recovery then disposal. The proximity principle requires waste to be dealt with as close as possible to where it is produced. This means taking local responsibility for the treatment and disposal of waste. Planning for waste management infrastructure to meet all waste needs within each local authority area is a key part of fulfilling this responsibility. An authority may also fulfil this responsibility by working with other authorities to develop shared strategic waste infrastructure.”
The Zero Waste Plan
As published (2010)
[9] The Scottish Government published its Zero Waste Plan (ZWP) in June 2010. It implements the Waste Directive, with the aim that by 2025 no more than 5% of waste will go to landfill. Annex B to the ZWP sets out the role of land-use in implementing the plan. It emphasises that the Waste Hierarchy is the bedrock of waste management policy (para 2.3).
As amended (2011)
[10] In February 2011 the ZWP was amended. It resiled from the proximity principle and adopted a Scotland-wide approach. Section 4 of Annex B provides inter alia as follows:
“The Scottish Government considers that there will be a need for waste management facilities to meet the requirements detailed in the Zero Waste Plan which are by 2025 to:
- Recycle at least 70% of Scotland’s total annual waste arisings;
- Treat unsorted waste materials prior to incineration or landfill; and
- Landfill a maximum of 5% of Scotland’s annual waste arisings (para 4.2).
… need and proximity for waste management facilities should be considered strategically as the achievement of a sustainable strategy may involve waste crossing planning boundaries within Scotland (para 4.3).”
[11] The amendment added Table 1 to Annex B. The Table, compiled by the Scottish Environmental Protection Agency (SEPA), outlined the national shortfall in the capacity of the waste management infrastructure that was required to meet the ZWP targets for 2025.
[12] In December 2011 SEPA updated the Table. The Table allocates a proportion of the shortfall to each local authority or development plan area. Annex B makes clear that the capacities outlined in the Table should not be treated as limits (para 4.5). It sets out the way in which Table 1 should be used by a planning authority:
“4.6 When considering applications for waste recycling, composting, recovery and landfill facilities, the planning authority will be able to assess the need for that type of facility is needed (sic) by referring to Table 1. However, comparison with Table 1 should not be regarded as a barrier to prioritising the growth of the resource management sector. This sector is an important industry for the future and individual local authorities may plan to become centres for resource management. The information provided in Table 1 is not intended to prevent this and, therefore, more infrastructure than is specified in the table may be developed over time in a particular area. Supporting inward investment in this way complements wider proposals for economic regeneration and development of a low carbon economy.”
[13] The area relevant to this appeal is described in Table 1 as “Highland”. It is expected that as Scotland moves towards its Zero Waste target in 2025, the shortfall in the operational capacity of waste management infrastructure will diminish. The Table shows that the total additional capacity needed to manage unsorted waste in the Highland area decreased between February and December 2011 from 150,000 tonnes pa to 70,000 tonnes pa.
[14] The ZWP is implemented by the Waste (Scotland) Regulations 2012 (SSI No 148). The practical effect of the Regulations in this case is that waste for incineration at the plant would have to be pre-treated for the removal of metals and dense plastics.
The Local Development Plan
[15] The Local Development Plan (LDP) sets out the following policy for waste management:
“The Zero Waste Plan sets targets for recycling of all waste and it is expected that new waste management infrastructure will be required in the Highland wide LDP area to manage all waste, not just municipal waste, in line with Zero Waste Plan and Scottish Planning Policy. Our chosen approach is for local based solutions which can be delivered on an incremental basis.”
Policy 70 is the waste management facilities policy. It is in the following terms:
“The Council will support waste management facility proposals at the following preferred sites:
- Former Longman landfill site, Inverness
- Seater Landfill Site, Caithness
- Former landfill site, Portree
- Glen Nevis Business Park (and any expansion of it forindustrial use)
Proposals for waste management facilities will also be acceptable where they are located on existing or allocated industrial land, specifically Classes 5: General Industrial and Class 6 Storage or Distribution provided they meet the criteria in the next paragraph.
All proposals will be assessed against the following criteria:
- Conformity with the Plan’s Spatial Strategy in terms of the origin of existing and future waste generation;
- Conformity with other waste policies – the Zero Waste Plan (including the National Need and Capacity information), Scottish Planning Policy, Planning Advice Note 63: Waste Management Planning and, where relevant, the Council’s Municipal Waste Strategy;
- Minimisation of transport of waste from its source
- Suitability of the local road network and of the site access to accommodate the nature and volume of traffic likely to be generated by the proposed development;
- Public health or safety impacts;
- Compatibility with surrounding existing and allocated land uses, and;
- Whether the applicant has submitted:
- Sufficient information with the application to enable a full assessment to be made of the likely effects of the development, together with proposals for appropriate control, mitigation and monitoring
- A design statement in support of the application, wherethe development would have more than a local landscape and visual impact
- Land restoration, after care and after-use details (including the submission of bonds)
- A justification, if applicable, as to why the sites/areas outlined above have not been pursued
To help meet recycling targets outlined by the Scottish Government, all new developments involving the creation of additional residential, commercial, retail or industrial units will be expected to comply with the requirements for waste management (such as provision of bins and recycling points) set out in the Council’s supplementary guidance: Managing Waste in New Developments.
In respect of landfill sites, proposals will also be assessed against the Landfill (Scotland) Regulations 2003. Applicants should also assess the likely cumulative impacts of additional landfill (both new landfill sites and extensions to existing landfill sites), including consideration of site design, increases in road traffic, period and intensity of disturbance to settlements and the length of time and level of landscape impact. Developers should indicate what measures will be taken to mitigate likely cumulative impacts.”
The decision notice
[16] The Reporter granted planning permission subject to 16 conditions. I now summarise his conclusions on the key issues.
The environmental statement
[17] The appellants objected to the adequacy of the revised environmental statement. The Reporter considered that it met the requirements of Regulations 2 and 3. Having considered the provisions of Regulation 2 and Part 1 of Schedule 4, he concluded:
“[11] I have considered the updated environmental statement against the requirements of Part 2 of Schedule 4 taking into account the submissions of the various main parties including the response of the appellant. The updated environmental statement contains a description of the development, and recognises that measures envisaged to avoid, reduce and, if possible, remedy significant adverse effects must also be described. The statement also asserts that mitigation and, if appropriate, monitoring proposed for the development has been described clearly. I note that various chapters, including, for example, landscaping, noise and vibration and ecology, contain sub-sections dealing with mitigation.
[12] Data is included to identify and assess the main effects the development is likely to have on the environment. These include the effects on air quality and human health, landscape and visual impacts, traffic and noise vibration.
[13] The main alternatives studied by the appellant are identified along with a site selection summary table. A non-technical summary is provided. I am of the opinion that, overall the requirements of Regulation 2(1) are fulfilled in respect of the information to be provided under Part 2 of Schedule 4.
[14] In respect of Part 1 of Schedule 4, I consider that the information provided in the updated environmental statement also fulfils the requirement of Regulation 2(1) insofar as is required to assess the environmental effects of the development.
[15] I recognise that those objecting to the development challenged certain conclusions of the updated environmental statement and the various inquiry and hearing sessions were arranged in order to explore these matters further.
[16] “Environmental information” is also defined in Regulation 2(1). In terms of that definition, the environmental information associated with this appeal includes the original environmental statement, the updated environmental statement, representations made by those bodies required by the Regulations to be invited to make representations, representations duly made by other persons about the environmental effects of the development and the environmental information provided at the inquiry and hearing sessions.
[17] In terms of Regulation (3) I am able to confirm that all the foregoing environmental information referred to above has been taken into consideration in the re-determination of the appeal.”
[18] The parties agreed that the environmental statement was prepared on the basis that the waste that was to be treated would originate from Highland Council’s area only. The Reporter said:
[56] The environmental statement, including the updated version of the document, assessed an energy-from-waste plant which would be focussed on waste arisings limited to the Highland area. Indeed, the appellant has expressed a willingness to accept a condition of planning permission to this effect … ”
The development plan
[19] The Reporter concluded that Policy 70 (supra) provided no basis for objection to the application (para [21]). The fact that the application site was not one of the preferred LDP sites did not rule out the development from consideration (para [24]). He assessed the proposal against the seven criteria that Policy 70 set out. He concluded that the proposal would not offend against the spatial strategy of the LDP and that the site conformed to the strategy in terms of the origin of existing and future waste.
The Zero Waste Plan
[20] The Reporter concluded from Annex B of the ZWP that the planning system should recognise that the market would be the key to infrastructure delivery. Planning permission did not of itself guarantee construction and commissioning. That was why the figures in Table 1 to determine need were linked to operational infrastructure and not to permissions granted. The proposed plant would provide flexibility, owing to the two-streamed nature of the infrastructure. Although the 100,000 tonnes pa capacity exceeded the identified capacity in Table 1, Annex B made clear that allocated capacities should not be treated as limits. Therefore in relation to need, the proposed development conformed to the ZWP.
[21] As to proximity of treatment of waste to its source, the Reporter thought that it was conceivable that waste could be imported from other regions. This is what he said:
“[55] Annex B also refers to all waste arisings in Scotland and, at its widest, this reference might be regarded as suggesting that development plans could make provision for treating waste from all parts of the country. Indeed, Annex B points out that the achievement of a sustainable strategy may involve crossing planning boundaries within Scotland. It was agreed by parties that it would not be anticipated that waste from more distant parts of Scotland, the Borders for instance, would be treated in Highland. It is conceivable, however, that waste from Highland Council and the neighbouring Moray Council, could be the subject of a joint treatment agreement involving waste crossing the planning boundary between the two authorities.
[56] The environment statement, including the updated version of the document, assessed an energy from waste plant which would be focussed on waste arisings limited to the Highland area. Indeed, the appellant has expressed a willingness to accept a condition of planning permission to this effect … ”
Transport links and the Tomich junction
[22] The Reporter found that the site was suitable in respect of its proximity to the trunk road network for the purposes of the ZWP. He then considered the suitability of the local road network and of the site access to accommodate the nature and likely volume of the traffic that the development would generate (cf Policy 70, criterion 4). This raised the Tomich Junction controversy. The appellants submitted that the junction was unsafe. The Reporter concluded:
“[117] It is clear to me that the Tomich junction does not comply with the standards contained in the Design Manual for Roads and Bridges. The distance between the junctions with the two side roads and the two right turn lanes are all significantly less than specified in the manual. Similarly, there can be no doubt that the Tomich junction gives rise to many incidents: the video evidence and the personal accounts provided by drivers illustrate the nature of the incidents that frequently occur. In particular, I note the high percentage of incidents involving heavy goods vehicles turning right from the A9 towards Invergordon. I also note from the video surveys and personal observation of the junction that vehicles frequently cross the central red surface areas when effecting a turn.
[118] I do not regard all incidents as being either “near misses” or “near accidents” despite the frequent incidents involving right-turning heavy goods vehicles. These often lead to the northbound carriageway of the A9 being impeded. As explained by Transport Scotland, following traffic has to slow or, in many cases, stop and await the completion of the right turn by the heavy goods vehicle. Indeed, this situation arose on several occasions during my visits to the junction. In no instance could the incidents I observed have been described as a near miss or near accident. The report on the video survey by Transport Scotland points out that delays appeared not to be significant and drivers adjusted their behaviour. Despite the numerous incidents that occur, I do not agree that the Tomich Junction is unsafe.
[119] Although the council expresses concern that accident statistics cannot be regarded as conclusive in the assessment of impact, I note the reliance of Transport Scotland on the level of personal injury accidents in assessing the need for the installation of mitigation measures. As the trunk road authority, I place much weight on the opinion of Transport Scotland, and consider the views of the authority to be persuasive …
[123] I accept that the use of the Tomich junction by additional traffic, especially right-turning heavy goods vehicles, is likely to give rise to more incidents. However, in view of my belief that the junction is not unsafe and that incidents cannot be equated to near misses or near accidents, I do not consider that the potential level of additional traffic incidents justifies refusing planning permission.”
The heat and power plan
[23] The developers submitted a heat plan. The updated environmental statement noted that the site provided significant potential long-term outlets for heat and power. The Reporter considered that the energy output could be taken up by nearby businesses or, as the developer suggested, electricity could be supplied to the national grid. The planning authority contended that the assessment was inadequate and that it was not clear from the environmental statement that there was sufficient heat demand in the locality of the site. Ross Estates questioned whether such a large thermal heat uptake would ever be realised. Their evidence was that the nearby Balcas Bioenergy Ltd facility discharged its surplus hot water into the Cromarty Firth.
[24] The Reporter concluded:
“[67] I accept it would be helpful if a more detailed indication of demand from local users could have been provided. However, I understand that, at this stage of the development process, uncertainty in the ability to assess demand for energy and commercial considerations restricts the level of detail that could be achieved. I note the Zero Waste Plan emphasises “potential” referring to sites that have the potential to maximise the potential for the re-use of waste heat. Parties, other than ICARE, are agreed that the consumers identified by the appellant can be regarded, for the most part, as potential users. I therefore accept the appellant’s claim that the proposed site can be regarded as falling within the category of potentially suitable sites. In any event, the alternative of supplying electricity to the National Grid was not questioned by the parties …
[76] … In this case SEPA advised that the heat recovery proposals are satisfactory although a detailed finalised heat plan will be required when an application is made for a permit under the Pollution Prevention and be required when an application is made for a permit under the Pollution Prevention and Control (Scotland) Regulations 2000. Subsequently, the Agency confirmed that the information contained in the updated environmental statement is adequate at this stage. …
[77] … Taking account of the views of SEPA I consider that in land use terms the heat and power plan submitted allows me to accept that, as expressed in Guidance Note 6, ‘the site has been selected to take full advantage of the opportunities to maximise energy efficiency.’”
On the issue of the Council’s waste management strategy his conclusions were:
“[83] The supporting text for Policy 70 explains that the council’s Waste Management Strategy was updated in 2009, a joint report having been prepared by Highland and Moray Councils. That report identified, as an option, a single, central energy-from-waste facility for all Highland and Moray residual waste. However, the policy explains that the chosen approach was for locally based solutions.
[84] Despite the reference to the Waste Management Strategy in Policy 70, the council has explained that the strategy has been through a series of iterations since 2008. A further recent report to the council has indicated that various issues require to be considered before there is a further review of the strategy. Accordingly, says the council, the current proposal cannot be assessed against the strategy which must be regarded as relatively obsolete. The appellant agrees and asserts that very little weight can be attached to the strategy. On the other hand, Ross Estates Company draws attention to the commitment in the strategy to localised solutions.
[85] Overall, I accept the contention that little weight should be attached to the council’s Waste Management Strategy, Nevertheless, the strategy appears to have had some influence in framing Policy 70 insofar as the council chose locally based solutions for waste management. I consider that this approach reflects the Zero Waste Plan in terms of proximity and minimising unnecessary travel. On the other hand, a strategic assessment of waste management might, in some instances, point to benefits in waste crossing planning boundaries for treatment. An agreement between Highland and Moray councils may well represent such an example. I do not regard the implementation of a policy founded on locally based solutions as necessarily being in conflict with a parallel strategic approach which, in terms of wider benefits, might require waste crossing a planning boundary. Efficiencies to be derived from this practice could in some cases outweigh the benefits of proximity through using entirely local solutions.”
Scottish Planning Policy
[25] Having concluded that the application conformed to the Zero Waste Plan, the Reporter concluded that in consequence, the appeal proposal conformed to the SPP. He added:
“[238] Of course, SPP also covers a range of other important matters. ICARE highlights guidance in SPP in terms of requiring the location of new development to reduce the need for travel and to prioritise sustainable travel and transport opportunities; tackling climate change, particularly by reducing emissions of greenhouse gases; making the best use of the existing transport network; and providing for the safe and efficient movement of traffic. I have considered these aspects of the proposal as part of my wider assessment. Whilst I appreciate that tensions may exist between different aspects of the guidance contained in SPP, it is often necessary to strike a balance. In my judgement, on balance, the wider aspects of the proposal do not conflict with SPP to the extent that permission should be refused.”
Minimisation of transport of waste from source
[26] The Reporter next considered the terms of Annex B (supra) in relation to the minimisation of transport of waste from source. He concluded that in some cases it might not be necessary to provide waste treatment at the closest possible point to the arisings. Wider or strategic assessment might point to a different solution:
“All in all, whilst I accept the appeal site cannot be regarded as being the optimum in terms of minimising the transport of waste from its source, I do not believe the location at Invergordon is such as to rule out the development under the provisions of the HwLDP and the Zero Waste Plan [para 95].”
Tourism
[27] The appellants submitted that construction of the plant would have a significantly detrimental impact on the potential for further tourist growth, contrary to criterion 6 of Policy 70. The Reporter concluded:
“[197] I have had regard to the concern emanating from the perception of the proposed incinerator on tourism but I am not persuaded that this concern is justified or well-founded. Similarly, I have noted the concern over house prices but, as previously indicated, property values are not generally a consideration for land use planning. Although it has been suggested that house prices would fall in response to a decline in the local economy, again, I am not convinced that this is a valid concern in the context of the proposal. [198] Insofar as socio-economic impact is concerned, I consider that, when taken into account with the landscape character and visual assessment, an adequate level of information has been presented in the updated environmental statement.”
Material considerations
[28] The Reporter then considered a number of other planning and guidance documents. These were his final conclusions:
“[235] I consider that my assessment of the proposal against the provisions of the development plan has taken account of the terms of National Planning Framework 2, including spatial and locational considerations. On becoming operational, I consider the facility at Invergordon would take its place in a network of waste management installations …
[257] A number of other documents have been brought to my attention. These include the Waste (Scotland) Regulations 2012, PAN 51, Planning, Environmental Protection and Regulation, PAN 66, Annex B – Best Practice in Handling Planning Applications Affecting Trunk Roads, and Transport Assessment and Implementation: A Guide and SEPA’s Online Advice on Energy from Waste.
[258] Whilst these documents might be regarded as material considerations, I believe that none is of fundamental importance to my re-determination of the appeal and, both individually and collectively, they do not alter my conclusions.
[259] Overall, material considerations do not point to the proposal being refused planning permission in the face of my conclusion that the development accords with the provisions of the development plan. In turn, this leads to my conclusion that the appeal should be allowed and planning permission granted subject to 16 conditions.”
The conditions
[29] Of the 16 conditions imposed, conditions 2 and 10 are relevant to this appeal.
Condition 2
This condition is as follows:
“The approval shall permit the plant to accept a maximum of 100,000 tonnes per annum of non-hazardous waste originating within the Highland Council area although this total may include waste from pre-treatment facilities located within the Highland Council area, a proportion of which may have originated beyond the Highland Council area. To this end the operator of the waste-to-energy plant shall maintain a log record confirming the weight, nature and source address of all waste products entering the site and the date of arrival at the site. That log shall be made available to the planning authority upon request.
Reason: to reflect the nature of the proposed operation of the development and to take account of the possibility that a pre-treatment facility in the Highland Council area may treat a proportion of waste that has crossed a planning boundary.”
[30] The Reporter’s reasoning for the inclusion of this condition was as follows:
“[268] … Although some waste may originate beyond the area of Highland Council, perhaps following an agreement between Highland Council and Moray Council, all waste would require pre-treatment within the Highland Council area. Transport of pre-treated waste to the site would therefore be entirely contained within Highland Region. This pragmatic approach would permit the possibility of a reasonable (probably very small) degree of flexibility in the source of the waste supply for the plant whilst remaining within policy guidelines. I do not believe that this approach would significantly invalidate the terms of the updated environmental statement.”
Condition 10
10 Prior to the commencement of development, a transport plan shall be submitted for the approval of the planning authority, in consultation with Transport Scotland Trunk Road Network Management Directive, to identify measures to implement control of traffic involved with the construction and operation of the plant. Key purposes and objectives of the plan shall be:
- to devise and implement routes for all heavy goods vehicles travelling to and from the site which do not pass through the centre of Invergordon, residential areas, school zones or other sensitive locations;
- restrict the movement of heavy goods vehicles associated with the development during the morning and afternoon peak hours taking account also of school starting and leaving times.
Thereafter, the development will be undertaken and operated in accordance with the provisions of the approved transport plan.
Reason: in the interests of road safety and to minimise traffic impact on Invergordon.”
The issues in these appeals
Imported waste – the competency of Condition 2
[31] It was accepted by all parties that the application provided for incineration of Highland waste only. Counsel for the planning authority submitted that condition 2 was invalid because (a) it was in breach of regulation 3, since the importation of waste from outwith the Highland area without limit was not dealt with in the EIA (cf Decision Notice, para [56], supra; R v Rochdale MBC ex p Milne (No 2) [2001] Env LR 22, Sullivan J at para 93); (b) the scheme was too large, it being expected that in the course of the 25 years lifespan of the plant the amount of waste for the plant from Highland would decline, thus creating pressure to import waste from outside; (c) there was no evidence for the finding in fact at paragraph [268] that the amount of imported waste would be “probably very small” and the finding was perverse (SBDC v Porter (No 2) [2004] 1 WLR 1953; Ritchie v Aberdeen CC 2011 SC 570; and (d) that the other parties had not been given an opportunity to consider condition 2 or to lead evidence in relation to it (Fairmount Investments Ltd v Secretary of State for the Environment [1976] 1 WLR 1255, Viscount Dilhorne at p 1260E-G). Counsel for Ross Estates adopted these submissions. Counsel for the Ministers submitted that Parts 1 and 2 of Schedule 4 to the EIA Regulations required an environmental assessment of only the “significant effects” of the proposal. It was for the Reporter to decide which effects were significant (R v Rochdale MBC ex p Tew [2000] Env LR 1; R v Rochdale MBC ex p Milne (No 2) (supra). The sufficiency of the EIA was a matter for him (Atkinson v Secretary of State for Transport [2007] Env LR 5]).
[32] The ZWP was formulated in the context of a national shortfall in waste management infrastructure. In its original version, the ZWP reflected the proximity principle set out in the Waste Directive (art 16) and in the SPP (para 213). The February 2011 amendment recognised the pressing need for the private sector to provide the necessary infrastructure if the 2025 target was to be met. The revised version of Annex B to the ZWP therefore allowed decision makers, when assessing need and proximity, to look Scotland-wide for ways in which the shortfall could be reduced (North Lanarkshire Council v Scottish Ministers 2013 CSIH 58, at paras [82]-[83]). The principle on which the Reporter based condition 2 therefore cannot be faulted; but, in my opinion, the decision is vitiated by the way in which the Reporter arrived at it.
[33] In my opinion, condition 2 is invalid for the fundamental reason that it enlarges the permission beyond that which was applied for and was considered at the Inquiry. It is a matter of agreement that all parties participated in the Inquiry on the understanding that the application sought permission for the treatment of Highland waste only. That was reinforced by the statement for the developer that it would accept a condition restricting the plant to waste arisings from the Highland area (Decision Notice, para [56]). On that understanding the parties prepared and conducted their cases.
[34] It is plain, in my view, that the appellants have been unfairly disadvantaged. They have not had the opportunity fully to consider the planning implications of the enlarged consent that the developer did not seek, still less to lead evidence or make submissions on the point. For that reason too, the decision cannot stand.
[35] Moreover, the developer’s EIA was drawn up on the understanding that only Highland waste was to be treated. At the Inquiry the developer accepted that if waste were to be imported from other regions, an updated EIA would be necessary. It is self-evident that the appellants have been unfairly disadvantaged in this respect too. Since the environmental implications of a condition allowing importation of waste without limit were not considered at the Inquiry, the appellants were deprived of the opportunity to comment on the condition or to lead evidence on the point. If the developers had sought permission on the basis that the proposed plant would accept waste from outside the Highland area, that proposal might well have raised issues that were not covered by the EIA. It is not for us to assume that an amended proposal of that kind would not have raised such issues. Therefore we cannot conclude that condition 2 in this case complies with Regulation 3.
[36] Counsel for the Ministers has pointed out that the Reporter’s conclusion was that the volume of imported waste would probably be “very small”. That, in my view, was the merest speculation. If the developer had applied for a permission that extended to imported waste, the EIA on that question would have been meaningful only if there was firm evidence as to the probable amount of the imported waste. Likewise it is mere speculation on the part of the Ministers to say that since the proposed plant would take waste that would otherwise be exported from Highland to Falkirk for landfill or to Dundee and Shetland for incineration, the net environmental impact would be minimal. There was simply no evidence from which that conclusion could be drawn. I conclude therefore that the imposition of condition 2 was invalid.
Tomich Junction
[37] Counsel for the planning authority submitted that the Reporter failed to take into account, or at least to give reasons why he had not taken into account, information as to the unsuitability of the junction; and had failed to give adequate reasons for relying on the evidence of Transport Scotland despite the fact that its officials did not take part in the inquiry.
[38] Counsel for Ross Estates adopted this submission. He also objected to the Reporter’s reasoning on the ground that he had misapplied criterion 4 of LDP Policy 70. Of three routes linking the plant with the road network, the Reporter found that routes 2 and 3, which used the Tomich junction, were inadequate for heavy goods vehicles (HGVs). The second respondent’s evidence was that only route 1 was appropriate for such vehicles. Despite that, the Reporter failed to impose a condition restricting the use of HGVs to route 1.
[39] In my view, the suitability of the road network required a broad assessment in which policy 70 was viewed as a whole. It is evident from paragraphs [96] to [127] of the Decision Notice that the Reporter carefully considered the independent evidence from Transport Scotland including its video survey, a video survey commissioned by Highland Council and evidence from ICARE, and interpreted and assessed that evidence and Transport Scotland’s advice with the benefit of his own site visits. The video survey commissioned by the planning authority included a critical manoeuvre on which the appellants relied. It is obvious that that manoeuvre was at the forefront of his consideration (Decision Notice paras 117-129). The Reporter cannot be criticised for not having narrated this specific manoeuvre in his Decision Notice. In my opinion, the Reporter’s Decision Notice did not require to account for every detail of the evidence. The Reporter based his conclusion upon his experienced assessment of the evidence. The decision was pre-eminently a planning judgment that it was for the Reporter to make. In the event, he gave clear and intelligible reasons for his conclusion on the issue (Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345, Lord President Emslie at pp 347 to 348). The restriction of HGV movements on the local network off the A9 was dealt with by condition 10 (supra).
Other grounds of appeal
[40] I now deal with a welter of criticisms of the Decision Notice made on behalf of Ross Estates, all of which are misconceived in my view.
Waste Hierarchy
[41] Counsel for Ross Estates submitted that the Reporter failed to mention or to have regard to the Waste Hierarchy and to identify where the present proposal came in the Hierarchy. Having failed to do that, the Reporter could not properly consider the extent to which the proposal would meet the aims of the ZWP.
[42] This is a far-fetched objection. The waste hierarchy underlies this whole case. It is said to be the bedrock of the waste management policy that is reflected in the SPP (Annex B to the ZWP, para 2.3). It is clear from the Decision Notice that the Reporter had careful regard to that policy. He considered and applied the ZWP and the SPP, both of which incorporate the waste hierarchy. He cannot have failed to consider the application in the context of the waste hierarchy. It was entirely reasonable that in expressing his conclusions he could take it for granted that the parties understood that the waste hierarchy was fundamental to the case.
Need
[43] Counsel for Ross Estates relied on the Waste Regulations, which now require that waste should be pre-treated before incineration. He submitted that the infrastructure shortfall of 70,000 tonnes identified in Annex B of the ZWP did not account for pre-treatment. Therefore, the shortfall would include infrastructure higher up the waste hierarchy than the proposed plant. Counsel referred to the evidence of an expert witness for Ross Estates to the effect that the plant would provide infrastructure for 100,000 tonnes of waste, which would exceed by almost half the total infrastructure for unsorted waste in the Highlands that would be required by 2025. He submitted that Annex B to the ZWP did not set out what infrastructure the authority or the decision maker should choose. Instead, the decision maker should apply Policy 70 and have regard to Table 1. The Reporter failed to have regard to the infrastructure higher up the waste hierarchy than the proposed plant. He therefore misdirected himself on need. He failed to take proper account of the Shore Energy proposal for which planning permission had been granted but which was not yet operational. That proposal had a front-end pre-treatment facility. The planning application was made before the requirement under the Waste Regulations for pre-treatment. The Reporter failed to consider pre-treatment. He said that there was no physical indication that the Shore Energy development was progressing (para 50). He said “planning consent does not in itself guarantee construction and commissioning. This is why figures used to determine need [in Table 1 of Annex B] are linked to operational infrastructure, not planning consents granted.” Counsel submitted that that was an unsound basis for dismissing the Shore Energy site when assessing the question of need. The Shore Energy permission was a material consideration. The Reporter failed to take it into account. In any event, he failed to give adequate reasons why he did not consider it as a suitable alternative to the proposed plant.
[44] The starting point on this issue is the fact that Scotland faces a significant shortfall in operational waste infrastructure (Table 1, Annex B to the ZWP). The ZWP is not prescriptive as to the type or location of the additional infrastructure required. By taking a flexible approach, it seeks to create the conditions that will allow the private sector to provide much of the additional infrastructure that will be required to meet the shortfall (North Lanarkshire Council v Scottish Ministers and Shore Energy [2013] CSIH 58). Policy 70 recognises that new waste management infrastructure is expected to be required in the LDP area to manage all waste in line with guidance in the ZWP and SPP. The Reporter was therefore entitled to conclude, in exercise of his judgment, that the proposed development conformed to the ZWP. He specifically considered the Shore Energy proposal and the Longman landfill site in his assessment of need (Decision Notice, para 50). In the exercise of his planning judgment he concluded that neither of these sites, or any of the others that he inspected, provided a valid reason for refusal of the application.
Proximity
[45] Counsel for Ross Estates submitted that the Reporter did not identify what he regarded to be the source of the waste. Policy 70 required him to consider whether the appeal proposal would minimise the transport of waste from its source. Instead he concluded that the location did not rule out the development under the provisions of the LDP or the ZWP (Decision Notice, para [95]). He did not consider whether “source” was to be taken as the original source of the waste or whether it was the pre-treatment facility. Therefore he failed to decide which interpretation of criterion 3 he preferred. Because of that failure the decision should be quashed (Tesco v Dundee City Council 2012 SC (UKSC) 278, Lord Reed at paras 20-23).
[46] This objection is meaningless. Since the plant will take pre-treated waste, the likelihood is that there will be a pre-treatment facility in Inverness; but in any event the guidance given in Annex B (section 4) is to the effect that the principle that local waste should go to local facilities has been departed from. The issue of proximity should be seen in the context of the national shortfall in operational infrastructure and the objectives of the ZWP (supra). That is consistent with the reality that need is a greater priority than proximity. Furthermore, the Reporter specifically asked SEPA to comment on this aspect of the complaints made by Ross Estates and considered its advice. It is obvious that he fully understood the issue.
Criteria 5, 6 and 7 of Policy 70
[47] Criteria 5 and 6 require the proposal to be assessed against “public health or safety impacts” and “compatibility with surrounding existing and allocated land uses”. The Reporter concluded that “the level of public health or safety impacts would not be of a scale to justify refusal under the provisions of Policy 70” (para [171]). Counsel for Ross Estates submitted that the Reporter (at para [175]) had applied the wrong test by asking whether the perceptions and concerns expressed justified the refusal of permission. He should have considered whether the appeal proposal was acceptable when assessed against the criteria in Policy 70.
[48] Criterion 7 required the Reporter to assess whether the applicant had submitted “a justification, if applicable, as to why the sites/areas outlined above [viz the preferred sites in Policy 70 and the areas where proposals would be acceptable subject to the criteria] have not been pursued.” Counsel for Ross Estates submitted that the Reporter had failed adequately to justify why the sites referred to in the policy had not been developed. He had also confused the Longman landfill site with the Longman industrial site. He had not given a reasoned basis for his having disregarded the potential of these sites as a material consideration.
[49] In my view, the argument for Ross Estates on these points is misguided. The Reporter clearly had regard to the development plan and the terms of Policy 70. He took each of the criticisms that he considered to be of relevance and assessed the proposal giving such weight to each of the criteria as he thought fit. He was entitled to conclude that the potential of the sites and areas identified in Policy 70 to provide the necessary infrastructure was in no case such as to justify refusal of the application.
Network of waste management installations
[50] Counsel for Ross Estates submitted that the Reporter’s findings in respect of the network of waste management installations was not supported by evidence. The Reporter concluded that, on becoming operational, the facility at Invergordon would take its place in a network of waste management installations (para 235). He had no evidence as to where those installations would be or how the appeal proposal would be linked to them. Such an analysis was required in terms of the SEPA’s Guidance Note 6 (para 7.1) and National Planning Framework for Scotland 2 (paras 168 and 169).
[51] This is a contrived objection. On a fair reading of the relevant policy documents it is obvious that the national policy objective is the development of a multiplicity of waste management installations, each contributing to the overall national need. The policy is not about site-specific location questions.
Heat and Power Plan
[52] Counsel for Ross Estates submitted that the Reporter’s conclusions on the heat and power plan (supra) and the SEPA Waste Guidelines 2009 were flawed. He referred us to the Reporter’s conclusion that the site had been selected to take full advantage of the opportunities to maximise energy efficiency and that an alternative of supplying electricity to the national grid was available. The developers had relied upon the nearby Balcas plant as a probable customer for the heat generated on the appeal site. The Reporter found that Balcas was not an importer of heat. Therefore he had no evidence to justify his conclusion.
[53] In my view, it was sufficient for the Reporter to be aware that the detail of the heat and power plan would fall to be considered under the pollution prevention and control (PPC) process, designed specifically for that purpose. That would be administered by SEPA, the appropriate statutory body. SEPA advised the Reporter that it was likely that the applicant would be able to obtain a PPC permit and that the heat recovery proposals were satisfactory. That was an adequate basis for the Reporter’s conclusion.
Tourism
[54] Counsel for Ross Estates submitted that the Reporter’s conclusion on the evidence of house prices in relation to tourism and the economy (at para 197) displayed a lack of consideration of and a misunderstanding of the evidence. He accepted, rightly, that this objection was not sufficient in itself to quash the decision.
[55] This is not a valid objection. The issue here was the impact of amenity on tourism. The Reporter did not simply rely on evidence about house prices. He also took into account considerations of landscape and amenity (paras 182-197). The weighing of this evidence and the degree of materiality of this consideration were matters for the Reporter (Smith v Secretary of State for the Environment, Transport, Transport and Regions [2003] EWCA Civ 262).
Overall conclusions
[56] The Inquiry Reporters are appointed for their knowledge and experience of planning law and practice. In an appeal of this kind we are entitled to credit the Reporter with an understanding of the policy documents and the significance of the evidence in relation to them. It is for the Reporter to decide what are the determining issues. It is not his duty to provide detailed and reasoned answers to every objection, however far-fetched. Likewise, the Reporter in speaking to an informed readership is entitled to assume that the parties know what the issues and the relevant considerations are. A failure to appreciate these principles underlies the captious objections that have been taken by Ross Estates alone. That failure underlies the preposterous idea that because the Reporter did not mention the waste hierarchy we should infer that he overlooked it.
[57] The Reporter in this case was a planner of long experience. Overall, his decision notice shows a thorough understanding of the issues, a competent handling of the evidence and a clear-minded statement of his findings and his reasons. It is unfortunate that on one point his decision has gone beyond the confines of the permission for which the developers applied.
[58] The Reporter gave careful consideration to the issues. An informed reader can be in no doubt as to the way in which he resolved them. It is clear that he understood the issues before him. It was not necessary for him to cite every argument advanced by the parties at the Inquiry in the Decision Notice (South Bucks DC v Porter (No 2) [2004] 1 WLR 1953, paras 35-36; Moray Council v Scottish Ministers 2006 SC 691 at paras 28-30).
[59] In particular, the Reporter applied the relevant policies with a proper understanding. It is an elementary principle that the policies of a development plan are not to be construed as if they were statutory or contractual provisions (Tesco Stores Limited v Dundee City Council (supra), paras 18-19). Whether or not the application was in accordance with the development plan was essentially a matter of planning judgment for the Reporter. In my view, he gave adequate reasons in relation to his consideration of the development plan as a whole. The Reporter concluded (at para 21) that there was no development plan objection in principle to the method of waste disposal provided by the proposed facility. He gave a clear and intelligible explanation of his approach to the application of the ZWP. His reasons were adequate having regard to the nature of the issue being determined (South Bucks District Council & Anr v Porter (no 2) [2004] 1 WLR 1953; Save Britain’s Heritage v Number 1 Poultry Limited [1991] 1 WLR 153; Moray Council v The Scottish Ministers (supra); Greenland Developments (UK) Limited v Scottish Ministers [2011] CSIH 5; Uprichard v Fife Council supra).
[60] I conclude therefore that the ground of appeal for the planning authority and for Ross Estates related to condition 2 is well founded. The ground of appeal related to the Tomich Junction is not. I also conclude that there is no merit in any of the other criticisms made on behalf of Ross Estates.
Disposal
[61] The question then is what follows in the disposal of these appeals. Counsel for the planning authority invited the court to answer the questions in law in the affirmative and quash the decision simpliciter.
[62] Since the only error of the Reporter relates to condition 2, we have to decide whether it is open to us to treat condition 2 as severable from the rest of the Decision Notice and to quash that condition alone. In British Airports Authority v Secretary of State 1979 SC 200, Lord President Emslie was of the view that the court cannot take that course:
“As to the court’s power I am in no doubt. A number of English cases were cited to us – all actions for a declaration in respect of planning permissions granted by a local planning authority subject to conditions – from which it may be taken that if a condition held to be ultra vires is important and not trivial there can be no question of quashing only that condition. The whole of the planning permission must be quashed on the view that it might not have been granted at all if it had been appreciated that the condition objected to could properly be attached to it. …
In the result this Court is not empowered merely to excise from the decision the ultra vires condition. Each planning permission as an entity must be quashed for it is as a whole ultra vires by reason of the imposition of that condition.” (ibid, pp 214-215)
That in my opinion is the situation in this case. I conclude that condition 2 is not capable of being severed from the rest of the decision.
[63] Counsel for the planning authority and counsel for Ross Estates proposed that if the decision were to be quashed, the entire case should be re-heard. That, in my view, will be unnecessary. The Reporter has decided against the appellants on the merits of every other issue raised in these appeals. The inquiry will have to be reopened, but it need deal only with condition 2. The short question that remains is whether if the Reporter had appreciated that condition 2 could not competently be attached to the permission, he would have granted the permission at all. If he considers that the condition in its present terms is essential to the grant of permission, he will have to hear further evidence and submissions from the parties on the merits of the condition. If he considers that the condition in its present form is not essential to the grant of permission, it will be open to him, having heard parties, to substitute a revised condition 2 in appropriate terms.
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2014] CSIH 74
XA5/13 and XA7/13
Lord President
Lord Menzies
Lord Clarke
OPINION OF LORD MENZIES
in the appeals under section 239 of the
Town and Country Planning (Scotland) Act 1997
by
HIGHLAND COUNCIL
Appellant;
against
SCOTTISH MINISTERS
First Respondents:
and
COMBINED POWER AND HEAT (HIGHLANDS) LIMITED
Second Respondent:
and
ROSS ESTATES COMPANY
Appellant
against
SCOTTISH MINISTERS
First respondents:
and
COMBINED POWER AND HEAT (HIGHLANDS) LIMITED
Second Respondent:
For first appellant: Findlay; DWF Biggart Baillie
For second appellant: Armstrong QC; Anderson Strathern
For first respondent: Wilson QC, Barne; Scottish Government Legal Directorate
For second respondent: Shepherd & Wedderburn – Non Participating Party
28 August 2014
[64] I am in complete agreement with the reasoning and conclusions of your Lordship in the chair, and with the disposal you propose.
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2014] CSIH 74
XA5/13 and XA7/13
Lord President
Lord Menzies
Lord Clarke
OPINION OF LORD CLARKE
in the appeals under section 239 of the
Town and Country Planning (Scotland) Act 1997
by
HIGHLAND COUNCIL
Appellant;
against
SCOTTISH MINISTERS
First Respondents:
and
COMBINED POWER AND HEAT (HIGHLANDS) LIMITED
Second Respondent:
and
ROSS ESTATES COMPANY
Appellant
against
SCOTTISH MINISTERS
First respondents:
and
COMBINED POWER AND HEAT (HIGHLANDS) LIMITED
Second Respondent:
For first appellant: Findlay; DWF Biggart Baillie
For second appellant: Armstrong QC; Anderson Strathern
For first respondent: Wilson QC, Barne; Scottish Government Legal Directorate
For second respondent: Shepherd & Wedderburn – Non Participating Party
28 August 2014
[65] I agree with the Opinion of your Lordship in the chair and have nothing further to add.