Town and country planning: development


Planning permission - green belt - research facility - presumption against development - whether defendant entitled to have regard to government policy - whether defendant taking into account all material considerations - application dismissed



National Anti-Vivisection Society and another v First Secretary of State: QBD Administrative Court (Mr Justice Collins): 30 July 2004



A university applied for planning permission for the erection of a building for class B1(b) research use.



The site was situated in the green belt and, since an animal research facility had existed there on the site for more than 50 years, the proposal did not involve a change of use.



However, because the application involved the demolition of existing buildings and the erection of a new one, it required planning permission within the meaning of section 57 of the Town and Country Planning Act 1990. The council refused permission. The university appealed to the first secretary of state, who appointed an inspector to hold an inquiry.



There was a presumption that permission should be refused for such development unless it could be established that special circumstances outweighed harm to the green belt. The university argued that the proposed centre was of national importance and it produced two letters from the relevant government minister to show that it was the government's view that the centre was of national importance; that it would cement the UK's position as a world leader in neurosciences; and that such centres were the key to realising the government's aim of making the UK a centre of excellence for world sciences.



Following the inquiry, the inspector considered that special circumstances had not been established and he recommended that the appeal should be dismissed.



The defendant rejected the inspector's recommendation. He was of the view that the development was in line with government policy, and he concluded that special circumstances did exist to outweigh any harm to the green belt. The claimants applied to quash that decision under section 288 of the 1990 Act.



Neil King QC and Richard Wald (instructed by Nabarro Nathanson, London) for the claimants; Philip Sales and Clive Lewis (instructed by the Treasury Solicitor) for the defendant.



Held: The application was dismissed. The defendant had correctly directed himself in law and had taken into account all material considerations.



The weighing of the importance of the development and the consideration as to whether it amounted to special circumstances were matters of evaluative judgement for the defendant, and his decision was neither perverse nor irrational.



He was entitled to have regard to national policy on issues such as the need for research facilities and the benefits that would flow from them. He was also entitled to weigh those policies and benefits against other considerations and the inspector was not permitted to go behind the government policy: Bushell v Secretary of State for the Environment [1981] AC 75 applied.



In the present case, the defendant had before him evidence of national policy.



The university was an appropriate place for the development since, as a matter of government policy, it was desirable to have research facilities close to existing universities in order to draw on existing expertise.



The defendant was not being perverse when deciding, in the light of that policy, that he considered that special circumstances would outweigh any harm to the green belt and other additional harm.



It was necessary to have regard to the planning merits of the development, but such objections did not outweigh the need for the development.





Landfill tax



Exemption for works of restoration - whether all landfill works undertaken pursuant to planning permission and licence amounting to restoration - judge holding only works subsequent to capping qualifying - section 43C of Finance Act 1996 - appeal dismissed



Commissioners of Customs & Excise v Ebbcliff Ltd: CA (Lords Justice Peter Gibson and Jonathan Parker and Mr Justice Laddie): 30 July 2004


The appellant was a landfill site and land reclamation operator. It acquired a site that had formerly been used as a quarry, and which had then been partly filled in with waste materials and restored to a poor standard.



Planning permission had been granted for a scheme of landscaping and restoration of the site.



This involved the deposit of inert materials for recontouring, after which the site was to be capped with clay. A waste disposal licence provided for the progressive filling of the site, followed by the clay capping.



The appellant gave written verification to the respondents of its intention to begin the restoration, and claimed a full exemption from landfill tax for the amount of waste to be deposited under the scheme.



It maintained that the work qualified for exemption as, among other things, 'restoration' under section 43C of the Finance Act 1996. Restoration was defined as 'work, other than capping waste, which is required by a relevant instrument to be carried out to restore a landfill site to use on completion of waste disposal operations'.



The respondents rejected the claim for exemption. That decision was overturned by the VAT and Duties Tribunal but was restored on appeal by the respondents.



The judge held that the term 'restoration' applied only to the final part of waste disposal operations required by a relevant instrument to be carried out to restore the site to a use other than disposal of waste by landfill.



He identified three stages: the filling in of the site; the construction of the cap; and, finally, the work of restoration. He therefore held that the tribunal had erred in holding that all the works under the permission and licence amounted to restoration. The appellant appealed.



Paul Shadarevian (instructed by Courts & Co, London) for the appellant; Owain Thomas (instructed by the solicitor, Customs & Excise) for the respondents.



Held: The appeal was dismissed. Where a section used an undefined term that would nevertheless be understood in the industry, such as 'capping waste' in section 43C, it was proper to construe it having regard to industry practice and usage; that practice was, in the case of putrescible waste or an inadequately restored site such as the present, for the disposal of waste to proceed in three separate stages as identified by the judge; that the permission and the licence were consistent with the work to be carried out involving three categories of work, of which restoration would be the last; that conclusion was supported by the express exclusion from the section 43C exemption of 'capping waste', which might otherwise have been understood to be included in the restoration of landfill sites; that if the exemption had been designed to cover all disposals of inert waste made for the purposes of restoring a derelict site to beneficial use, there would have been no policy reason for excluding the capping layer.