Stop Portland Waste Incinerator: Court of Appeal clarifies waste planning proximity principle requirements

The Court of Appeal has dismissed a challenge to the Secretary of State's decision to grant planning permission for an energy recovery facility on the Isle of Portland, clarifying the approach to the proximity principle in waste planning decisions and the adequacy of reasons required when applying development plan policies.

Stop Portland Waste Incinerator, acting through Ms Deborah Tullett, challenged the September 2024 decision to grant Powerfuel Portland Limited permission for an ERF capable of treating up to 202,000 tonnes of waste annually. The facility would incinerate non-hazardous residual waste and generate approximately 15 MWe of electricity. Dorset Council had initially refused permission, partly on grounds that the unallocated site failed to demonstrate sufficient advantages over allocated sites in the Bournemouth, Christchurch, Poole and Dorset Waste Plan 2019.

The appellant's statutory review under section 288 of the Town and Country Planning Act 1990 focused narrowly on whether the Inspector and Secretary of State failed to give adequate reasons regarding Policy 4(c) of the Waste Plan, specifically concerning the proximity principle—the requirement that waste should be managed as close as possible to its source.

Lord Justice Holgate, delivering the leading judgement with which Lords Justice Nugee and Moylan agreed, rejected the appellant's characterisation of the issues. The appellant had argued that whilst the Inspector addressed the need/capacity gap and compared the proposal with allocated sites for Policy 4(a) purposes, he failed to provide separate reasoning on adherence to the proximity principle under Policy 4(c).

The Court identified significant overlap between different parts of Policy 4, with the Spatial Strategy permeating multiple criteria. Policy 4(c) required proposals to support the Spatial Strategy's delivery, including moving waste up the hierarchy, promoting self-sufficiency, and adhering to the proximity principle. These elements were interrelated rather than discrete considerations requiring separate analysis.

Crucially, the Court found that the Inspector had properly applied the proximity principle through his comparative analysis of the Portland site against the allocated sites at Parley and Canford Magna. Both allocated sites lay within the South East Dorset Green Belt, where ERF development would constitute inappropriate development requiring very special circumstances. The Inspector concluded that ERF development at Canford Magna would cause very high levels of Green Belt harm, making it difficult to demonstrate the necessary very special circumstances when an acceptable alternative existed outside the Green Belt.

The Inspector accepted that whilst Canford Magna might perform better regarding the Spatial Strategy's preference for south east Dorset locations—an application of the proximity principle—this had to be balanced against substantial Green Belt harm. He also noted that in the absence of development on allocated sites, waste continued being transported to other counties and overseas, and the Portland proposal would represent a clear improvement on this existing situation.

The Court emphasised that Policy 4's application was fact-sensitive, requiring decision-makers to weigh a proposal's performance against each element of the Spatial Strategy and arrive at a balanced overall judgement. The Waste Plan itself recognised at paragraph 6.11 that allocated sites might not come forward, providing flexibility for acceptable non-allocated sites.

The judgement confirms that decision letters must be read fairly and as a whole, addressed to parties well aware of the issues and arguments advanced. The Inspector and Secretary of State had given adequate, indeed ample, reasons for their decision, particularly regarding Policy 4(c), the Spatial Strategy and proximity principle. Their approach demonstrated the realistic and common-sense application of policies expected in planning decisions.

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