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Permission for Strategic Materials Recycling Facility Quashed Following Misinterpretation of Consents Relied Upon for Fall-back Position

Gregory Jones QC
Alexander Greaves

The High Court has quashed the decision of an inspector granting permission for the extension and retention of a strategic materials recycling facility (“MRF”) at Lower Compton, near Calne in Wiltshire.

The claim was brought by a group of local residents, known as the Wiltshire Waste Alliance (“WWA”), who appeared as a rule 6 party at the inquiry, but were left as the de facto main party defending the appeal following the Council’s last minute decision not to defend its reasons for refusal.

An interesting feature of the inquiry was that the Appellant’s entire case rested on a series of complicated fall-back positions reliant upon a number of existing permanent and temporary consents for various waste-related uses. WWA challenged these fall-back positions on the basis that, when correctly interpreted, the consents did not permit the extent of activities relied upon by the Appellant. However, the inspector found (by and large) that they did and went on to allow the appeal.  

WWA challenged the inspector’s decision on a number of grounds, including a challenge to the inspector’s interpretation of one of the consents. Under this ground, WWA contended that the inspector had erred in his interpretation of the scope of the consent by failing to have regard to application documents which were expressly incorporated into it. Accordingly, it was WWA’s position that the inspector had failed to properly consider whether the use relied upon by the Appellant as part of its fall-back position represented a material change in use from what was permitted under the consent. The Judge agreed and, allowing the claim on grounds 2 and 5, quashed the inspector’s decision and the grant of planning permission.

Following the decision of the Court of Appeal in Lambeth LBC v SSCLG [2018] EWCA Civ 844, this decision provides another recent example of why it is important not to adopt an overly literal approach to I’m Your Man. Although an absolute limitation must be imposed through a condition, it is still important to have regard to the proper interpretation of a consent and whether alternative uses would represent a material change in use from it.

Gregory Jones QC and Alexander Greaves acted for WWA in both the High Court and at the inquiry.