When waste strategies and planning policies conflict

The Court of Appeal has held that the Mayor of London was wrong not to withdraw a direction to a London borough to compensate for the closure of an existing waste recycling centre in the light of a conflicting planning decision by the Secretary of State. The decision highlights the difficulties that can arise when public authorities make conflicting decisions on the same subject but under different legislative regimes.

Mayor of London v London Borough of Enfield (Court of Appeal (Civil Division) 18 March 2008 [2008] EWCA 202) concerned two Enfield recycling centres. In 2005 the local authority sold the smaller site to a developer who then applied for planning permission for a housing development. Shortly afterwards the Mayor of London issued a direction under the Greater London Authority Act 1999 requiring Enfield to replace the closed site with a new one. This was in line with the mayor’s waste strategy that London boroughs should safeguard existing waste management sites "unless appropriate compensatory provisions were made".

Enfield argued that a new site was not needed because the larger retained recycling centre could accommodate all the waste and new waste management services, including kerbside collection and home composting, would reduce the need for the public to visit recycling centres. The mayor disagreed that this was what "appropriate compensatory measures" meant.

Meanwhile, a planning inquiry considered the planning application. The relevant planning policies were contained in the London Plan, but because this also referred to the Waste Plan and the need to ensure compensatory measures, the inspector had to consider the same issues at the heart of the mayor’s direction.

The inspector agreed with Enfield’s arguments concerning compensatory measures and recommended planning permission be granted. In July 2006, the Secretary of State confirmed the inspector’s recommendations and granted planning permission. The secretary noted that although the provision of alternative sites might be appropriate in some cases, here the evidence of capacity at the other site and the improved waste management services were enough to meet those requirements.

Nevertheless, the mayor refused to withdraw his direction. This led Enfield to challenge the original direction’s legality and the decision not to withdraw it in the light of the planning inquiry’s findings and the Secretary of State’s decision on the grounds of irrationality and abuse of power.

The Court of Appeal agreed with the High Court’s decision last year that the mayor’s original direction was rationally sustainable. There was room for disagreement about the type of compensation, but the decision "was not unreasonable at the time it was made, and was one for the mayor to take, not the court".

The court then focused on the mayor’s refusal to withdraw his direction. The court noted that the mayor had participated in the planning inquiry and advanced the core arguments concerning the meaning of compensatory measures and the need for an alternative site. Furthermore, he had not taken the opportunity to challenge the legality of the Secretary of State’s planning decision by way of statutory appeal to the courts under the Town and Country Planning Act 1990.

The question was therefore the extent to which the mayor could reject the decisions reached under an alternative adjudicative forum and persist in refusing to withdraw the direction. The Court of Appeal noted the planning decision had been made after a public hearing at which evidence was given and tested, and involved the same arguments underpinning the mayor’s direction.

Lord Justice May summarised the situation by observing that the Secretary of State’s decision had been reached after due process and concluded the mayor was wrong. Although the mayor might have reached a different conclusion for waste management strategy purposes, no additional reasons of substance had been given which the inspector had not considered. The mayor’s original decision to give a direction could be seen as tenable at the time it was made, but "to persist in it becomes untenable once its underlying justification has been subjected to independent adjudicative scrutiny in the statutory planning process".

Although the Greater London Authority Act requires strategies to be consistent with each other, the Enfield case illustrates the tensions that can arise between planning policies and waste strategies particularly where different authorities are responsible for their interpretation and implementation. But equally, as the Court of Appeal’s judgment noted, the maintenance of apparently inconsistent decisions by two competent public authorities cannot be acceptable.

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