On 13 June 2013, the Planning Inspectorate dismissed an appeal for a change of use of a facility located in the Green Belt in Swanley, Greater London. The proposed development would have resulted in the change of use of part of an existing quarry for the purposes of pre-treating and recycling construction and demolition waste.
The appellant, Bournewood Sand and Gravel, first applied to the Council of the London Borough of Bromley for planning permission in December 2011. This application was refused by the council for a number of reasons, including that the proposed development constituted inappropriate development within the Green Belt.
Following this refusal, the appellant started appeal proceedings before the Planning Inspectorate, under powers contained in s.78 of the Town and Country Planning Act 1990.
The appeal was heard by Isobel McCretton, who held a site visit and hearing on 6 March 2013, before issuing her decision to reject the appeal and refuse planning permission.
In finding against the appellant, the inspector identified four main issues.
Whether the appeal development would amount to inappropriate development within the Green Belt.
Whether the change of use would have a detrimental impact on the character and appearance of the surrounding environment.
Whether the development would reduce the openness of the surrounding area.
If the development constituted inappropriate development, whether there were any other factors that would constitute very special circumstances, such as to justify granting planning permission.
The appeal site is a quarry covering some 11 hectares in a rural location close to the A20. The appellant has the benefit of an existing planning permission that allows it to extract Thanet sand from the quarry for onward sale. Under the terms of the permission, the appellant is also allowed to infill parts of the quarry that have been excavated with inert construction, demolition and excavation (CDE) waste. The site visit revealed that infilling had taken place along the southern and western boundaries of the quarry, with excavation operations mainly taking place in the northern part of the quarry.
Under the appellant’s appeal proposal, additional plant and machinery would be brought on site to allow the appellant to offer pre-treatment services for the CDE waste brought to the quarry. This would allow a large amount of the CDE waste to be recycled and reused with a lesser portion of the waste being sent to other parts of the quarry for infilling. The new facility would also see the excavation of certain parts of the quarry that had already been infilled so that this waste could also be recycled where possible.
Before turning to consider the main issues of the appeal, the inspector noted that the appellant had made a previous application for planning permission on similar terms in 2002. This had been rejected both by the local authority and by the Planning Inspectorate on appeal, on the basis that it would be inappropriate development and would cause harm to the surrounding environment. While each application had to be judged on its own merits, the inspector highlighted that these previous rejections were material considerations to be accounted for when considering this appeal.
Issue 1: Inappropriate development
Given that both the current and previous applications had been rejected by the local authority on the basis that they amounted to inappropriate development in the Green Belt, the inspector emphasised that this was a key area for the appellant to satisfy.
In this regard, the appellant sought to distinguish the current application from the 2002 application by emphasising that it had agreed with the council that the 2002 development had amounted to inappropriate development. In the appellant's view, its failure in that case had been its inability to show that there were overriding circumstances, such as to justify granting planning permission despite this finding.
However, the appellant argued that there had been a significant change in planning policy since that first application, such that the development no longer constituted inappropriate development. In adopting this view, the appellant drew attention to the provisions of the National Planning Policy Framework (2012) (the Framework), which had replaced the previously applicable planning policies.
In particular, the appellant sought to rely on paragraph 90 of the Framework, which states that mineral extraction will not constitute inappropriate development, provided that openness of the Green Belt is maintained and the objective of retaining land within the Green Belt is upheld.
The appellant also argued that the lists of activities and developments in paragraphs 89 and 90 of the Framework, which are classified as not being inappropriate development, are not exhaustive. Rather, these should be viewed as illustrative, and the fact that the change of use of land is not listed in these paragraphs should be viewed as meaning that it is not inappropriate development. Taking the appellant’s second argument first, the inspector held that this reading of paragraphs 89 and 90 would give a distorted view of the purpose of these paragraphs. The purpose of these paragraphs is to set out a limited list of activities and developments that will not amount to inappropriate development (and which are therefore not subject to the policy presumption that inappropriate developments are, by definition, harmful to the Green Belt).
As such, the absence of change of use developments from these lists should be taken as meaning that these are to be considered, as a starting position, as being inappropriate development. The burden is then on applicants for such developments to show that there are “very special circumstances”, such as to justify granting planning permission even in light of the presumed harm from such developments.
Returning to the appellant’s argument that its proposed activities should be classified as mineral extraction, the inspector noted that the new development would shift the focus from infilling the quarry to recycling CDE waste materials. The appellant’s evidence suggested that the balance of activities could be as much as 75% for recycling to 25% for infilling. On this basis, the inspector held that the proper view of the new overriding activity was that it would be the treatment of external waste brought on to the appeal site and not mineral extraction as used in paragraph 90 of the Framework.
As such, the proposed change of use would not fall within the limited list of developments set out in paragraphs 89 and 90 of the Framework and should be viewed as being inappropriate development in the Green Belt.
Issue 2: Character and appearance
In considering this issue, the inspector highlighted that the character and appearance of the area had to be viewed in the context of the quarry itself. While the quarry is a flaw on the character and appearance of the surrounding environment, its impact is mitigated to a certain extent by the fact that it is temporary, with the current planning permission only valid until January 2018.
The site visit revealed that there are a number of fixed and temporary buildings on the appeal site, along with a range of associated plant and machinery. Although some of this appeared to be connected to the current permitted use of the facility, the inspector did note that not all of the plant and machinery appeared to be directly relevant to the excavation and infilling use. This raised the question as to whether the presence of this additional plant and machinery was having an unnecessarily large impact on the character and appearance of the area.
Although the appellant accepted that the change of use would require the use of all of the plant and machinery currently on site, it rejected the contention that this would have a detrimental impact on the character of the Green Belt, particularly as this plant and machinery was already on site.
It also argued that the excavation of the storage bays in the quarry, that had previously been infilled, would have little or no impact on the area, as these bays were located almost four metres below the surface and so would not be visible to people outside of the facility boundary.
While the inspector accepted the appellant’s argument with regard to the excavation of the storage bays, she emphasised that the appellant had failed to provide a detailed visual impact assessment, which would have assisted with reaching a conclusion on this issue. For example, the appellant had provided no information as to how the expected 200,000 tonnes of CDE waste delivered for infilling each year would impact on the appearance of the surrounding area or whether the additional vehicle movements to the site would have a negative impact on its character.
With regard to the additional plant and machinery required for the appeal development, the inspector emphasised that the mere fact that this was already located on site was not sufficient justification for saying that it would not harm the character and appearance of the vicinity. This plant and machinery was not connected with the current permitted use and therefore should not be situated on site at the present time.
In the inspector’s view, if this additional plant and machinery were to be retained for use with the appeal development, this would emphasise the industrial nature of the quarry and the appellant’s activities. This would be out of keeping with the rural nature of the Green Belt and would therefore amount to detrimental harm to the character and appearance of the surrounding area.
The inspector therefore held against the appellant on this issue.
Issue 3: Openness
In considering this issue briefly, the inspector emphasised that one of the primary objectives of planning policy for the Green Belt is to prevent unnecessary intrusion into the Green Belt or any reduction in openness. This objective is enshrined in paragraph 79 of the Framework and is a matter of utmost importance when reviewing any new development.
Looking at the facts of the appeal, the new use would not require the construction of any new buildings or the addition of any new structures. On this basis, there would not appear to be any threat to the openness of the surrounding area and the inspector found in favour of the appellant on this issue.
Issue 4: Very special circumstances
Having concluded against the appellant on the first issue, the inspector emphasised that the burden was on the appellant to show that there existed very special circumstances that would override the harm caused by the development to the Green Belt and justify granting planning permission.
In turning to address this burden, the appellant began by drawing attention to a number of pieces of waste legislation. The first of these was the European Landfill Directive (1999/31/EC), which contains a pan-European requirement that all waste be pre-treated before being sent to landfill. The appellant argued that the proposed change of use would allow for CDE waste to be pre-treated at the quarry prior to it being infilled, thereby meeting the requirements of the directive.
The appellant also drew attention to the provisions of the revised Waste Framework Directive (2008/98/EC). This directive sets out a hierarchy of methods for the treatment and disposal of waste, with a clear presumption in favour of developments that result in the recycling or reuse of waste. Again, the appellant argued that allowing it to pre-treat waste at the quarry would allow it to recycle large quantities of the CDE waste delivered, thereby pushing the treatment and disposal up the waste hierarchy as required by the Waste Framework Directive.
To support these arguments, the appellant noted that, from a practical perspective, waste producers were more likely to send waste to facilities where the waste could be both recycled and disposed of as appropriate. Such an approach would also result in more sustainable waste management, as waste producers would only have to make one delivery of waste rather than using two different facilities for different methods of treatment or disposal.
The appellant also argued that, if it were unable to offer the pre-treatment of waste, it was likely to be increasingly difficult for it to continue receiving enough waste to successfully carry out the infilling of the quarry before the January 2018 deadline. This was supported by recent declining figures for the amounts of waste delivered to the quarry for infilling.
In considering these arguments, the inspector noted that the appellant had failed to provide any substantial evidence to show that the declining figures were as a result of it not being able to provide pre-treatment services, as opposed to a more general reduction in construction activities during the past few years.
However, the inspector did acknowledge that there was some support for the appellant’s arguments in the 2012 document, The London Plan. This sets the objective for London to become self-sufficient in terms of waste disposal by 2031. In order for this objective to be met, there was a need to encourage the development of appropriate recycling facilities to promote sustainable waste management.
While The London Plan promoted the development of new recycling facilities, this had to be viewed alongside the requirements of Planning Policy Statement 10 (PPS10). Although PPS10 also provides a presumption in favour of new waste developments, this is on the basis that these facilities are of “the right type, in the right place and at the right time”. The inspector therefore emphasised that it was important to consider the merits of the appeal facility as against alternative facilities in the area.
In addressing this point, the appellant stated that its research into alternative facilities offering similar services in the neighbouring vicinity had revealed that there were no such sites in a 10-mile radius of the appeal site, and only a limited number in the wider area. While the council accepted that there were no similar facilities in the Bromley area, it did identify a number of similar facilities located outside Bromley that would be viable for businesses in the borough.
The inspector acknowledged that there was merit to the argument that locating waste facilities close to waste producers would be beneficial in allowing waste to be sustainably managed. However, the inspector raised concerns that the appellant had failed to demonstrate that the facility was required to meet a currently unsatisfied need for such services, or that there were no other suitable alternatives outside of the Green Belt.
For example, the appellant had provided little information to demonstrate from where its waste would be sourced or how the permitting of the appeal site would reduce the distances that users would have to travel to dispose of their waste. Although a number of letters of support had been submitted by existing customers, the inspector held that these were of limited value as they appeared to be based on a template and did not give any specific information as to how the facility would reduce travel times for waste transportation or allow more sustainable waste management.
On the basis of the evidence before the inspector, it was not possible to say that the appeal site was the most appropriate location for such a facility or that there was a lack of feasible alternatives.
Current permitted use
Although the appellant had previously submitted that, without the pre-treatment activities, it would be unable to successfully meet the January 2018 deadline, the inspector noted that there was a counter-argument that permitting this change of use would in fact hinder progress in this regard.
The figures provided by the appellant suggested that up to 75% of the CDE waste delivered to the site would be recycled at the new facility, with only 25% being used for infilling. This was likely to have a significant effect on the appellant’s ability to meet the intended finish date of January 2018 and would result in the deadline having to be extended once again.
Although some waste producers may be more likely to deliver waste to the site if it could be both recycled and landfilled, it was unlikely that the increase in deliveries for this reason would outweigh the volumes of waste that would no longer be infilled as a result of the recycling process.
Although concerns had been raised about the effects of noise and dust from the new facility, the inspector noted that these were matters that fell within the environmental permitting regime. An environmental permit was already in place for the existing facility and the inspector noted that there was no reason to suggest that a new permit would not be able to adequately deal with any concerns in this area. There was therefore no need for the planning permission to replicate the role of the environmental permit in this regard.
However, the inspector did highlight that the appeal site is located within an Air Quality Management Area. Sevenoaks District Council, the neighbouring local authority, had raised concerns that the increased vehicle movements to and from the appeal site may result in an increase in pollution and a corresponding reduction in air quality. This reduction was likely to be more significant than would usually be expected, given the already poor quality of the air in the region as a result of the use of the A20.
The inspector emphasised that the concerns in this area were therefore a matter to be taken into account when considering whether there were any overriding factors to justify granting planning permission.
The planning balance
Looking at all of these factors together, the inspector noted that there were a number of factors that weighed in the appellant’s favour. Both PPS10 and The London Plan contained some support for the appeal facility, while the dual facility would allow more waste to be treated in accordance with the provisions of the European Landfill and Waste Framework directives.
However, these factors had to be weighed against the presumption that the appeal facility would amount to inappropriate development, and the additional harm that would be caused to the character and appearance of the surrounding environment. In considering how to strike the balance, the inspector emphasised that the threshold for proving the existence of “very special circumstances” was a high one that would be met only in exceptional cases. On the facts of the appeal, the inspector concluded that the appellant had failed to show that the factors supporting the development were sufficient to clearly outweigh the harm that the facility would cause. As such, there was no justification for granting planning permission on this basis.
Despite finding that the development would not impact on the openness of the Green Belt, the inspector held that the development as a whole would be inappropriate within the Green Belt and would have a detrimental impact on the character of the area. In light of the inspector’s findings that there were no overriding reasons to justify granting permission, the inspector rejected the appeal and upheld the original decision of the council to refuse planning permission.
Last reviewed 12 August 2013