Case law >> Planning and waste hierarchy

Experts from LexisPSL on the Court of Appeal's rejection of a challenge to planning permission for an energy-from-waste plant that claimed it was no better than landfill

The Waste Framework Directive (WFD, 2008/98) – transposed through the Waste (England and Wales) Regulations 2011 – sets out the following “waste hierarchy”: prevention; preparing for reuse; recycling; recovery (for example, energy recovery); and disposal.

In Skrytek v Secretary of state for communities and local government [2013] All ER (D) 159, the Court of Appeal upheld an earlier decision to grant planning permission to build a waste treatment facility involving incineration.

It did not initially qualify as a recovery process under the WFD because its energy efficiency would not have achieved the threshold required. However, once operating and producing residual heat, the facility converted from an electricity-only energy recovery facility to a combined heat and power energy recovery plant, therefore falling within the recovery category of the WFD.

At appeal, the inspector dismissed a challenge which argued that, because incineration lay near the bottom of the waste hierarchy, the proposed facility had been no better than the disposal of waste to landfill. This decision has been upheld by the High Court and now the Court of Appeal.

Although the inspector wrongly interpreted Defra guidance that all energy recovery technologies are higher in the waste hierarchy than disposal, the court said the inspector’s decision had to be read as a whole.

When done so, it was clear that the inspector had not been categorising the proposal as a recovery operation, said the court, adding that there could be no genuine or substantial doubt about what the inspector had decided and why.