R. v. Durham County Council & Lafarge Redland Aggregates Limited exp. Lowther

Transcript date:

Thursday, May 24, 2001

Matter:

Court:

Court of Appeal

Judgement type:

Substantive

Judge(s):

Lord Phillips, Sir Martin Nourse, Pill LJ

Case No: C/2000/2471

Neutral Citation Number: [2001] EWCA Civ 781

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

The Hon. Mr. Justice Gibbs

Royal Courts of Justice

Strand, London, WC2A 2LL

Thursday, 24th May, 2001

B e f o r e :

LORD PHILLIPS, MR

LORD JUSTICE PILL

and

SIR MARTIN NOURSE

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The Queen

-v-

Durham County Council

And

Lafarge Redland Aggregates Limited

Ex parte Elaine Lowther Appellant

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(Transcript of the Handed Down Judgment of

Smith Bernal Reporting Limited, 190 Fleet Street

London EC4A 2AG

Tel No: 020 7421 4040, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

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Lord Kingsland, QC and Greg Jones (instructed by Richard Buxton for the Appellant)

Neil King, QC and Reuben Taylor (instructed by Durham County Council Legal Services for the First Respondent)

Gregory Stone, QC and Thomas Hill (instructed by Travers Smith Braithwaite for the Second Respondent)

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J U D G M E N T

As Approved by the Court

Crown Copyright ©

Lord Phillips MR:

1. The second respondents have a quarry at Thrislington in Durham. They also have at Thrislington a plant for converting the rock that they quarry into dolime. The relevant process involves heating the crushed rock in kilns. To do this they used to burn petcoke alone. In 1996 they substituted for a proportion of the petcoke used in one of their kilns, a substance known as secondary liquid fuel or SLF. An issue arose as to whether this substitution involved a material change in the use of their land for which they required planning permission. The first respondents are the relevant planning authority. On 10 February 1999 the first respondents, through the Planning Sub-Committee of their Policy and Resources Committee ("the Sub-Committee"), decided that no material change of use was involved so that planning permission was not required. The appellant applied to have that decision quashed on the ground that it was founded on advice as to the law that was unsound. On 21 June 2000 Gibbs J. dismissed her application. She appeals to us from his judgment.

The Primary Legislation

2. S.57 of the Town and Country Planning Act 1990 provides that, subject to exceptions, planning permission is required for the carrying out of any development of land.

3. S.55 of this Act provides:

(1) Subject to the following provisions of this section, in this Act, except where the context otherwise requires, "development" means the carrying out of building, engineering, mining or other operations in, or, over or under the land, or the making of any material change in the use of any buildings or other land.

4. The Act contains no definition of "material change in the use".

The Facts

5. The following summary of the material facts repeats, in large measure, the facts set out in the judgment of Gibbs J. They are not disputed.

6. The applicant is a local resident with an interest in the issues arising from the Sub-Committee's decision. The second respondents Lafarge Redland are joined because they operate the works in respect of which the possible change of use was being considered.

7. The site to which this application relates is a quarry owned by the second respondents at Thrislington. It is located about nine kilometres south-east of Durham and one kilometre to the west of the A1M road. The nearest centre of population is West Cornforth which is a kilometre to the north-east and there are some other villages a bit further away. The surrounding land is principally agricultural. The quarry site contains a large number of buildings and items of plant used both for lime processing and quarrying. It includes a substantial amount of machinery associated with the latter process, including crushers, wash plants, kilns etc.

8. The consent for quarrying at the site was first granted in 1947 and, subsequently, consents were granted on a number of occasions including consent for extensive quarrying to the east of the road on which the site was located. The first rotary kiln with ancillary plant was approved in April 1956, a second rotary kiln was approved in April 1960 and a third in November of 1976. The three kilns are generally referred to by the second respondents under the names T1, T2 and T3. These are relevant to the case, in particular, although as the site was developed there were a number of other planning permissions sought and granted.

9. The works at the site, the Thrislington works, opened in 1958 in order to quarry rock for the production of an end product known as dolomite or dolime. It is a large operation, some two million tons of this substance are quarried each year. Almost all of it is processed on site. It is broken from the quarry by means of drilling and blasting and it is quarried selectively in order to obtain the type of material more suitable to be formed into dolime. It is crushed and then conveyed to the kilns. It is treated in the kilns and the gas emissions created in the process, having been treated, are allowed to escape through a tall chimney some 70 feet high. The end product is used in a variety of specialist ways, apparently important in steel production and the refractory industry.

10. The production process requires intensive heat. The way in which the heat is applied to the raw limestone during the production process affects the reactivity of the end product. It is desirable to apply heat in a very controlled manner at the correct temperature and for the correct period to ensure the conversion of the limestone into the product known as dolime.

11. The dolime is produced from two of the three kilns which I have mentioned; kiln T2, having been decommissioned in 1998 for various technical reasons. There are also good reasons why, from the second respondent's point of view, kiln T3 is used in preference to kiln T1.

12. In the relevant part of the process, namely the use of fuel in the kiln, the stone is fed, having gone through a preheating process, into the upper end of the kiln, which is slightly inclined and which rotates around its long axis. The fuel is burnt at the lower end in a flame, which has to be extremely hot, at least 1800 degrees centigrade and usually in excess of 2000 degrees. The rotation of the kiln moves the stone progressively towards the lower end of it, which is hotter, and it takes some three and a half to five hours to go through the kiln system, in the course of which the material reaches a temperature of 1400 to 1550 centigrade.

13. The exhaust gases from the system are processed and then the gas is ultimately discharged through the chimney stack. There are monitors in position checking the concentrations of dust, nitrate oxides and the temperature within the cleaned gases. The purpose of this is to enable the kiln operator to take any necessary action to adjust the system so that it is working properly.

14. As to the fuel used in those processes, petroleum coke, known for short as petcoke, has been used as the only fuel in T1 since 1987 and was used as the only fuel in the decommissioned kiln T2. Petcoke is the by-product of a crude oil process and was, as a by-product, unwanted until a market developed for its use as fuel.

15. The relevant kiln in this case is T3, where SLF is used. The fuel used most of the time in T3 is a mixture of SLF and petcoke. The kiln is authorised by the Environment Agency to use SLF as a support fuel. It is used as up to 40 per cent of the contribution to the heating process, however, it is more usually used at between 20 to 25 per cent thermal substitution; the reason is that normally there is not enough SLF available to run at 40 per cent on a continuous basis. If no SLF is available at all petcoke is used as the sole fuel. It should be said immediately, because it is important in the case, that SLF consists of blended constituent parts. Each of those constituent parts consists entirely of waste produced from solvents. The blending process is sophisticated and SLF is produced to a sheet specification, checked by analysis at various stages of the process.

16. From the second respondent's point of view the qualities of SLF make it particularly useful for their burning process in the kiln. The reason is that fuels derived from solvents burn with a shorter and sharper flame and are exceedingly effective as a means of heat transfer. In trials, and in use, the operational advantages of blending SLF with petcoke as a fuel have been convincingly demonstrated. Amongst the advantages are that such a blend is more amenable to computer control and the flow of fuel into the kiln can be more accurately organised; this ensures greater consistency of product. Because of the volatility of the material it burns more quickly and consistently and, among other things, apart from enhancing the product, lengthens the life of the kiln. However, as already indicated, it is used only as a constituent part of the mixture, up to 40 per cent, and indeed can only effectively be put to use in conjunction with petcoke.

17. The fuel is transported to the quarry site by road in tankers. The sole supplier of the fuel is a company called Solrec which specialises in solvent recovery and is based in Morecambe. Upon arrival at the site the SLF is pumped into one of four storage tanks which have been purpose built. They are located close to the relevant kiln, T3. Transfer of fuel from the storage tank to the kiln is effected through pipes, each tank having a separate pipe leading directly to the kiln supply pump.

18. The history of planning and other permissions in relation to the specific use of SLF is as follows: on 13 October 1993 an application for planning permission was made for the erection of solvent fuel storage tanks and planning permission was granted in December of 1993. In the course of 1993, prior to that, there had, in conjunction with the Environment Agency or its predecessor, been testing of the use of SLF in the kiln.

19. The nature of the substance to be stored in the tanks was disclosed in the planning application; in other words, it was disclosed that the substance was derived from the by-products of solvents. Traffic considerations and the nature and quality of the emissions produced by the burning of the solvents in the second respondent's kiln were plainly in the mind of the first respondent, as planning authority, as was the visual effect of the tanks; this is apparent from the documents, including the report of the Director of the Environment dated 9 November 1993. The views taken by the director included the following: that traffic consequences were neutral; that there was some visual impact from the storage tanks but that that was not significant and could be kept to a minimum; and that the effect of the use of the fuel was to reduce emissions from the kiln. At the same time it is right to record that no particular attention was paid to the significance of the substances being either described as waste or as hazardous. In parallel with the planning process went the process of authorisation by the Environment Agency, (previously the HMIP) referred to above.

20. The burning of SLF at Thrislington is authorised by the Environment Agency. The second respondents originally applied for authorisation to operate a lime-making process in February 1993, as required by section 6 of the Environmental Protection Act 1990. Discussions were going on between the HMIP before and subsequent to the submission of the application and a number of trials took place between 1993 and 1996. On 2 February 1996 the second respondents made a formal application to vary the authorisation, in relation to the burning of fuel pursuant to section 11 of the Environmental Protection Act 1990. The application contained full details of the solvent fuel trials together with other technical details. It was advertised in the Northern Echo on 26 February 1996 and the documents placed on the public register. According to the evidence of Mr Carlill, from whose detailed statement much of the history is taken, there were other steps also taken to ensure that the public was consulted. Again, it is right to say that whilst the details of the fuel, the subject of the authorisation, were stated, its significance as waste or hazardous waste, was either not mentioned or, if mentioned, not stressed.

21. The application was granted and the authorisation thereby varied on 18 July 1996. Since then the Environment Agency have carried out a four-year review in relation to the site, in accordance with the requirements of the 1990 Act, and have issued a further variation notice dated 25 June 1999. The net effect of the history of those authorisations is that operations at Thrislington have been carried out at all times in consultation with, and with the approval of, the Environment Agency.

22. A dissatisfied local resident, a Mr Gibson, became concerned at the effect of the variation granted on the local community and particularly, apparently, upon his allotments. He, therefore, applied for leave for a judicial review of the variation decision.

23. In May 1998, in a lengthy and considered judgment which is before this court, Harrison J refused leave. He noted in his judgment the evidence that the Environment Agency had taken into account the relevant objectives under the Waste Management Licencing Regulations 1994; these included noise nuisance, odours, visible amenity and traffic. Some, if not most, of these objectives overlapped though did not coincide with the areas that a planning authority might have considered. The agency had concluded that the variation did not give rise to danger to human health; it had concluded that the variation would result in a net environmental gain. The judge, upon the application for judicial review, did not accept that there were any grounds to challenge the agency's decision in law.

24. However, even as these developments were taking place there is evidence that local disquiet was being aroused for a somewhat different reason and the source of this evidence is the applicant's witness statement. The applicant, Mrs Lowther, has lived in Cornforth for some 30 years and the Thrislington works have been there as long as she can remember. Her evidence is that until the works started burning SLF, she thinks about 1994, they were regarded as fairly harmless apart from the kind of dust and dirt emissions to be expected from quarrying. She says that the current problems, of which she makes complaint, began about seven years ago when there was a spillage from a tanker delivering SLF to the works. If one is pedantic about it, the use of SLF appears to have started in about February of 1993; however, it is perfectly clear that the applicant was not being precise about it and there is no dispute that the spillage was of SLF.

25. She describes how solvent leaked from the tanker on or near a children's recreation ground. The spillage was quite large and the effect of it so serious that one can, on occasion, still detect the smell even now. She herself developed asthma at about the time of the spillage and had not suffered from that complaint before. She believes, though there is no real evidence of this, that others were similarly afflicted. She points out that the consequences of the unfortunate and serious incident to which I have referred, is that the village quite soon obtained the by-pass which it had been asking for for some years and that the second respondents paid for a new recreation ground, that being a more practical alternative than endeavouring to clean up the soil at the original site. There is no doubt that the applicant is recording here genuine experiences which she believes to be connected with the introduction of SLF.

26. On 16 July 1996 the Sub-Committee considered a joint report of the County Secretary and Solicitor and the Director of the Environment on the planning implications of the use of SLF at Thrislington and also at Eastgate Cement Works. The joint report reported the following advice from Counsel:

5. The County Council has sought the advice of Counsel on whether the use of RLF constitutes a material change of use at the Thrislington and Eastgate works. Counsel has noted that the quantities of waste disposed of by incineration at the two works are substantial and cannot be regarded as de minimis. Counsel advises that this is a materially different use from the permitted uses of the works. The fact that they occur as an integral part of a single process does not prevent them from constituting separate activities for planning purposes. The use of RLF is not necessary for the production processes nor is it merely incidental to them. Counsel refers to a statement by Lord Justice Nourse in the case of West Bowers Farm Products v Essex County Council (1985). [P&CR 368]

"The planning legislation was not impressed by the indivisibility of single processes. It cared only for their effects. A single process might for planning purposes amount to two activities. Whether it did so or not was a question of act and degree. If it involved two activities, each of substance, so that one was not merely ancillary to the other, then both required permission."

6. Counsel concludes that the disposal of waste is a separate and concomitant use with the manufacture of cement, Dolomet and Dolime and that the use of RLF involves a material change of use to include disposal of waste by incineration.

27. The joint report recommended the Sub-Committee to accept this advice. They did so and called upon the second respondents to make the appropriate planning application.

28. The second respondents disputed the need for planning permission to use SLF. They maintained that no material change of use had taken place. A party cannot be compelled to seek planning permission and, therefore, in the light of the second respondents declining to make application, the first respondents had the option either to reconsider their position or to take enforcement action. The first respondents took no enforcement action; but in due course took further advice.

29. That advice was conveyed in a joint report of the County Secretary and Solicitors and the Director of Economic Development and Planning dated 10 February 1999. This report summarised the past history of the matter, including the decision taken on the advice of Mr McCracken. It summarised the rival contentions of those who argued that the use of SLF involved a material change of use and those who argued that it did not.

30. The joint report concluded as follows:

"Advice of Mr Michael Fitzgerald QC

We have consulted Mr Michael Fitzgerald QC, a leading member of the planning bar, who advises as follows.

Following the European Waste Framework Directive and United Kingdom government guidance, Mr Fitzgerald distinguishes between disposal and recovery and concludes that the use of SLF cannot be both. Mr Fitzgerald takes the view that the use of SLF - because of its high calorific value - is energy recovery. The recovery process is so entirely part of the manufacture of cement for lime that it would be wrong to characterise it as a separate use; there is no waste disposal use in addition to the permitted use.

In the West Bowers case there were two separate activities, separated both in time and in their nature. At Thrislington (and putatively at Eastgate) there is no separation in time between the burning of the SLF and the use of its heat in the production process. Because it would be categorised as energy recovery rather than disposal, then the nature of the activity is the use of fuel, which is not different from using coal or petroleum coke.

Mr Fitzgerald, in considering the West Bowers case and the case of East Barnet UDC -v- British Transport Commission (1961), attaches importance to the objective purpose of the process. The use of SLF does not make any difference to the creation of the product. The objective purpose of the process therefore remains the same.

Mr Fitzgerald draws support from the judgment of Mr Justice Harrison and advises in clear terms that the use of SLF at Thrislington (and its prospective use at Eastgate) does not and would not constitute a material change of use.

Recommendations

On the basis of the advice given by Mr Fitzgerald, we would RECOMMEND the Sub-Committee to conclude that the use of SLF at Thrislington (and its potential use at Eastgate) does not constitute a material change of use requiring a separate planning permission. It should be noted that the requirement for an environmental assessment follows the requirement for planning permission. We would also RECOMMEND that officers write to the interested parties informing them of the Sub-Committee's view and issue a press statement.

31. The Sub-Committee resolved to accept that resolution. It is that decision that is challenged by the appellant in these proceedings.

The nature of the challenge

32. On behalf of the appellant, Lord Kingsland, QC, advanced the following submissions before Gibbs J:

i) The decision of the Sub-Committee was founded on the advice of Mr Fitzgerald QC.

ii) The advice of Mr Fitzgerald that there was no material change of use was based on an error of law. Mr Fitzgerald proceeded on the basis that because the burning of SLF was an integral part of the process of manufacturing lime it could not constitute a separate land use. That approach conflicted with the decision in West Bowers.

iii) Mr Fitzgerald erroneously distinguished between waste disposal and energy recovery. In fact the technological character and land use consequences of burning waste were identical whatever the object of so doing. Mr Fitzgerald thus drew a distinction where there was no difference.

The basis of the judgment

33. At paragraph 67 of his judgment Gibbs J cited the following passage from the judgment of Judge LJ in the unreported decision of the Court of Appeal in Oxton Farms v Selby District Council and Persimmon Homes (Yorkshire) Ltd (18th April 1997) QBCOF 95/0553/D; 97-0612:

"The report by a planning officer to his committee is not and is not intended to provide a learned disquisition of relevant legal principles or to repeat each and every detail of the relevant facts to members of the committee who are responsible for the decision and who are entitled to use their local knowledge to reach it. The report is therefore not susceptible to textual analysis appropriate to the construction of a statute or the directions provided by a judge when summing a case up to the jury.

From time to time there will no doubt be cases when judicial review is granted on the basis of what is or is not contained in the planning officer's report. This reflects no more than the court's conclusion in the particular circumstances of the case before it. In my judgment an application for judicial review based on criticisms of the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken."

34. Gibbs J went on at paragraph 76 to make the following finding:

"In my judgment it was plainly open to the subcommittee to come to a view contrary to that expressed by Mr Fitzgerald, or indeed, if, as a consequence of the differences of opinion revealed in the joint report, they were in doubt, then it was open to them to have a full debate about it and/or to call for further information and clarification. In my judgment, taken in that context the reported advice of Mr Fitzgerald including the words ‘it would be wrong to characterise it as a separate use' is a means of conveying to the committee his clear view that there is here no separate use on the facts of the case before them; the recommendation was an invitation to the subcommittee to accept that view, not a requirement or direction in law."

35. Despite this finding, the Judge accepted the possibility that Mr Fitzgerald's advice, if erroneous, might have undermined the Sub-Committee's decision. Accordingly he went on to consider the criticisms made on behalf of the appellant of that advice. As to these the Judge made the following findings:

i) the view that the use of SLF involved ‘recovery' rather than ‘disposal' was perfectly valid (paragraph 77). Further:

ii) the reliance by Mr Fitzgerald, in that context, on the high calorific value of SLF was a legitimate point (paragraph 81-2)

iii) the distinction between disposal and recovery was relevant (paragraphs 83, 84)

iv) it was legitimate to attach importance to the objective of burning SLF (paragraph 84).

36. As to Lord Kingsland's submission that Mr Fitzgerald had invalidly distinguished the West Bowers case, Gibbs J said this:

"This was criticised on the ground that the West Bowers decision cannot in that way properly and reasonably be distinguished from the present case; the fact that the use of SLF and the burning of fuel constitute an integral process does not prevent there being a separate use, and the distinction between disposal and recovery is not material to the issue of whether or not there is a separate use. As to those matters in my judgment a distinction is capable of being reasonably and properly drawn on the facts between the West Bowers case and the present one. I do not propose to elaborate on that in detail. However, it can be said for example that in the West Bowers case whilst the removal of earth and stones was a necessary result of excavating the reservoir, the process of carrying away the excavated material was a physically distinct activity from that of creating the reservoir.

In the present case there was only one process, albeit one which would have the effect of burning up the waste material as well as fuelling the kiln. Other potentially valid distinctions have been advanced in argument. It is an issue which is, I think, arguable either way but the view of Mr Fitzgerald on the point, as conveyed to the committee, was in my judgment a reasonable one and cannot be said to have significantly misled them, especially as the contrary view of Mr McCracken was also put."

37. In the light of the considerations referred to above, the Judge concluded at paragraph 85 that there was no defect of law arising from the joint report.

38. Gibbs J went on to consider the question of whether, assuming (contrary to his view) that Mr Fitzgerald's reasoning was unsound in law, the Sub-Committee could reasonably have reached any conclusion other than that the change to SLF involved no material change of use. He concluded that they could not because, on the evidence before the Sub-Committee, the partial change from coke to SLF had no environmental impact other than a beneficial one and no other impact of any kind.

The approach to the appeal

39. I am in no doubt that the decision of the Sub-Committee was founded on the advice in the joint report that they should prefer the opinion of Mr Fitzgerald to that of Mr McCracken. The advice of each reflected views on the application of the law to the material facts and, in particular, the impact of the West Bowers case. If Mr Fitzgerald's conclusions were unsound in law, then it must follow that the Sub-Committee was "significantly misled about material matters" in the words of Judge LJ in the Oxton Farms case. Accordingly it is necessary on this appeal to review the merits of Mr Fitzgerald's advice.

The issues

40. In order to decide whether the use of SLF constituted a material change of use for planning purposes, four questions had to be answered:

i) must burning of waste on a significant scale always constitute a separate land use for planning purposes, even if it is an integral part of some other process? If ‘No':

ii) can burning waste on a significant scale ever constitute a separate land use if it forms an integral part of some other process? If ‘Yes'.

iii) did the substitution of SLF for part of the petcoke burnt in order to produce lime constitute a separate land use in the instant case?

iv) did the substitution of SLF for part of the petcoke used to produce lime in the instant case so alter the character of lime production as to result in a change in the use of the land.

41. It is necessary to consider whether Mr Fitzgerald's advice misled the Sub-Committee as to the correct answer to any of these questions.

Must burning of waste on a significant scale always constitute a separate land use?

42. In the course of his oral submissions, Lord Kingsland developed an argument to the following effect. Waste has unique characteristics. It is unwanted material which the holder is bound to discard. Thus waste has to be disposed of by one means or another - the normal methods being dumping or incineration. Disposal of waste is a recognised land use. Disposal by burning creates energy. Whether that energy is recovered or dissipated has no impact on land use. The fact that the burning of waste and creation of energy is ancillary to, or even an integral part of, some activity that is another use of the land does not mean that the burning of waste merges into and becomes part of that use. It means that the same activity constitutes simultaneously two different uses of the land - see the West Bowers case.

43. Lord Kingsland buttressed these submissions by reference to the existence of a complex regulatory scheme, derived from the European Community's Waste Framework Direction (Directive 75/422/EEC as amended by Directive 91/156/EEC), that governs the disposal of waste. He submitted that it was relevant to consider the classification of waste in Annex 1 to that Directive in order to identify the circumstances in which materials were deemed to be waste.

44. It is not apparent to me that Mr McCracken's opinion was founded upon this proposition of Lord Kingsland. If, however, the proposition is correct, it must follow that Mr McCracken's opinion was correct, that Mr Fitzgerald's was not and that the Sub-Committee reached a decision that was unsound in law.

45. I have been unable to identify any principle of planning law that decrees that, simply because waste is matter which has to be disposed of, a person who makes constructive use of the waste for the purpose of some activity other than disposal of the waste, but who incidentally disposes of the waste at the same time, must be deemed to be making two uses of the land, namely waste disposal and the ulterior activity. The West Bowers case does not lead to this conclusion. On the contrary it seems to me to be at odds with it. It is time to analyse that decision.

The West Bowers Case

46. The West Bowers case was concerned with development which consisted of carrying out operations on land rather than with development consisting of a change of use of the land. I consider, however, that the principle to be derived from that case can be applied to either form of development. The applicants in that case were carrying out operations on farmland which consisted of digging a reservoir to contain water for agricultural irrigation. This operation constituted ‘engineering operations requisite for the use of that land for the purposes of agriculture'. In the course of digging the reservoir the applicants were extracting and selling huge quantities of gravel. The ‘use of land for the mining or working of minerals' was a different class of development.

47. The applicants needed planning permission and the issue was on what basis they were entitled to apply for this. If the application related "solely" to engineering operations requisite to the use of the land for the purposes of agriculture, no fee had to be paid, nor advertisement placed of the planning application. The planning authority contended, however, that the applicants were also using the land for the mining or working of minerals. This submission succeeded before Nolan J. Some of his observations were quoted by Nourse L J in the course of his leading judgment in the Court of Appeal at p.373:

"Nolan J. then stated the question and referred to the decision of the Divisional Court in Northavon District Council v Secretary of State for the Environment (1980) 40 P.&C.R. 332, D.C. Then he referred to the arguments of counsel on both sides and stated his reasons for refusing the application as follows:

For my part, I would not accept that different tests can be applied at the application stage and the enforcement stage; either a separate permission is required for the mineral extraction or it is not. This must, to my mind, depend upon the essential character of the development be it proposed or completed. The test is objective. It must be applied from the standpoint of the community and not from the subjective viewpoint of the developer. The opposing arguments in the present case are fairly finely balanced, but in my judgment, on the available evidence, the essential character of the proposed development could properly be regarded by the respondents as [of] a dual character comprising both the Class VI development and mineral extraction. The facts of the present case are very different from those of the Northavon case, but in this case as in that the decision under attack of the local authority is one which cannot be faulted as a matter of law."

Nourse L J went on to hold:

"Mr Schiemann, for the appellants, submitted that the impossibility of constructing the reservoir without extracting the gravel demonstrated that the latter activity was an integral part of the former. There was one indivisible process. Therefore, permission for the former was permission for the latter. I accept the premise of that submission but reject the conclusion. The planning legislation is not impressed by the indivisibility of single processes. It cares only for their effects. A single process may for planning purposes amount to two activities. Whether it does so or not is a question of fact and degree. If it involves two activities, each of substance, so that one is not merely ancillary to the other, then both require permission.

Applying that test to the facts of this case, I am left in no doubt that the construction of the reservoir will involve two activities, each of substance. The extraction of so much gravel will not merely be ancillary to the carrying out of the engineering operations, as it would usually be, for example, where foundations were dug for a bridge or a building. I take due account of the fact that it is only the extraction that will take place on the land and of the other evidence to which Nolan J. referred. Gravel will still be won and worked on a substantial scale."

48. In the course of his concurring judgment, Neill L J added at p.376:

"I see no reason in principle why works that are carried out on land may not comprise development of more than one class. In many cases, building or engineering operations will involve as an incidental feature of the operations the extraction of gravel or other minerals. In such cases, it would often be quite inappropriate to treat the development as involving the winning or working of minerals within article 8(1)(b) of the Order of 1977. In the present case, however, though no treatment of the minerals on site is contemplated, the amount of material that is to be 'won or worked' is very substantial. An area of 18 acres is to be opened to a depth of nearly 20 feet, and beyond question this operation will yield many thousands of tons of minerals.

Looking at the matter objectively, development of this size involving the winning or working of minerals on this scale can and should be classified as development falling within the class set out in article 8(1)(b) of the Order of 1977 and not merely or solely as an engineering operation."

49. Sir John Donaldson MR dealt, at p.377, with the difference between ‘operation' and ‘use'. He commented:

"...some activities may constitute a change of use or an operation, according to what is the object of the activity. The most obvious example is the introduction on to land of waste material, either to be rid of that material, which can constitute a change of use, or to alter the character of the land, which can constitute an 'operation' (see Northavon District Council v Secretary of State for the Environment). The same activity may also constitute both an operation and a change of use."

Dealing with the issue in the case, he held at p.378:

"Mr Konrad Schiemann, QC, who has appeared for the developers, has submitted that, if this is right, every engineering operation that incidentally involves the extraction of minerals from the land will also constitute a mining operation and the scope of Class VI of the Order of 1977 will be greatly reduced. In his submission, the test is the purpose for which the activity is undertaken. If minerals are removed for the purpose of facilitating an engineering operation, the development is to be classified as such an operation and not as a mining operation. I am unable to accept this argument. Purpose is undoubtedly a factor to be taken into account. Scale, however, is also relevant, as is what happens to the extracted materials. Thus, the digging of foundations for a building, which incidentally involves the extraction of relatively small quantities of minerals, could not possibly be described as a mining operation. Nor could most 'cut and fill' operations involved in road building. It is a question of fact and degree in each case.

Looking at the facts of this case, which involves the removal of so large a quantity of minerals, the only possible conclusion is that the development would consist of a mining operation followed by an engineering operation."

50. West Bowers involved deciding whether a particular operation fell into one or both of two specific categories of operation. On the facts the Court of Appeal held that it fell into both. There is no difficulty in following the logic of this conclusion. The facts were such that an objective onlooker when asked what the operation involved might have said ‘digging a reservoir' or ‘recovering gravel' or both. The operation had two physical aspects the one the corollary of the other: a hole was dug; gravel was removed. Each aspect fell into a different specific planning category.

51. West Bowers recognised that one indivisible process could amount, for planning purposes, to two activities. It does not follow that the different aspects of a process always fall to be categorised as different operations or uses of land for planning purposes. Lord Kingsland did not suggest that disposing of petcoke was a distinct use of the land at Thrislington, although petcoke is a by-product of the oil industry that has all the features of waste, save that its qualities as a source of energy have become appreciated so that it is universally burnt for energy recovery. Lord Kingsland's contention that disposing of waste is always a separate land use, regardless of the nature or manner of the disposal, cannot be derived from West Bowers.

52. Sir John Donaldson in West Bowers observed at p.377 that the manner in which the introduction of waste onto land falls to be categorised for planning purposes depends upon the object of the activity. Northavon, to which he referred in this context, is instructive on the point - I note in passing Nolan J's observation that the facts of that case were very different from West Bowers and that the decision in it could not be faulted as a matter of law.

Northavon

53. In Northavon a similar issue arose as to that in West Bowers, but on that occasion it involved waste. A farmer who wanted to improve the drainage of his land proposed to do so by removing the top soil, spreading on the site a large amount of filling material including builder's rubble, and then replacing the top soil. He contended that this operation constituted 'engineering operations requisite for the use of the land for the purposes of agriculture' in which case planning permission was not required. The planning authority contended that the proposed operation was one of 'depositing refuse or waste material' and thus a change of use which required planning permission. Subsequent events appear from the short judgment of Sir John Donaldson MR at p.334.

"The Secretary of State said: "It is considered, from the evidence, that the purpose of the proposal is to raise the level of the land to facilitate drainage and improve its agricultural quality, rather than to deposit refuse or waste materials in order thereby to dispose of them".

For my part, it seems to me that the inspector was entitled to reach his conclusion of fact and that the Secretary of State was entitled to reach his conclusion of fact on the basis of fact found by the inspector. Once the conclusion of fact is accepted that the purpose of the proposal is to raise the level of the land to facilitate drainage, and not to provide a last resting place for refuse and waste material, it seems to me to follow that this is an "operation" within the dichotomy provided by section 22(1) of the Act and not a "change of use".

Let me say at once that Mr Cochrane, who has argued this with an admirable economy of words, which nevertheless covered the whole ground, has expressed the anxiety of his council client that this would lead to the entire countryside being covered by rubbish tips in the guise of intending to improve agricultural land. For my part, I think that this fear is misconceived. It would be necessary to show, as Mr Osborne has shown, that the object of the exercise is genuinely to improve the quality of the land and not to make money out of providing a last resting-place for rubbish. In most cases, farmers will have great difficulty in discharging that onus."

54. This decision, approved by the Court of Appeal in West Bowers, cannot be reconciled with Lord Kingsland's submission that where disposal of waste forms part of an operation, it must be treated as a separate land use. It also laid down a principle that, when one is dealing with waste, the object of the operation is of particular importance when analysing the nature of the activity for planning purposes. In MacPherson v Secretary of State for Scotland [1985] JPL788 the Court of Session held that, where the issue was whether infilling with the waste was "requisite for the use of .... land for the purpose of agriculture" an objective rather than subjective test fell to be applied in determining whether the operation was requisite for that purpose.

55. There is an obvious distinction between an activity involving waste where the object is simply to dispose of the waste which is, ex hypothesi, unwanted and an activity that involves making use of waste for an ulterior purpose involving a process in relation to which the waste is wanted. In the former case the land will be used for the disposal of waste. In the latter case it will be used for the ulterior purpose, and the disposal of waste in the course of the operation will be incidental to the particular use of the land.

56. For these reasons I reject Lord Kingsland's submission that the burning of waste on a significant scale must always constitute a separate land use for planning purposes.

Can burning waste on a significant scale constitute a separate land use if it forms an integral part of some other process?

57. In some circumstances waste may be disposed of in a process which results in an outcome beyond the mere disposal of the waste, but where the disposal of the waste is the paramount object of the exercise. The fact that methane gas is recovered from a waste tip will not necessarily convert the land use from that of waste disposal to that of gas production. The recovery of gas may be no more than incidental or ancillary to the disposal of the waste. In such circumstances the use of the land can properly be described as waste disposal.

58. In some circumstances an operation may involve a nice balance between the objective of waste disposal and the ultimate objective of the operation. In those circumstances it may be correct to hold that the land is being subjected to two uses, waste disposal and the ultimate objective. The burning of slaughtered cattle in power stations may be an example of such a situation.

59. It follows that the answer to the question posed is ‘yes'. Had the answer been ‘no' it would have followed that Mr Fitzgerland's advice was correct and Mr McCracken's was not. In the event, it is necessary to consider the next question

Did the substitution of SLF for part of the petcoke burnt in order to produce lime constitute a separate land use in the instant case?

60. Mr McCracken advised that it did. His reasoning, as reported in the joint report of 16 July 1996 was as follows:

(i) The quantity of waste disposed of was substantial.

(ii) The fact that burning SLF was an integral part of the lime making process did not prevent it from constituting a separation activity: West Bowers

(iii) The use of SLF was not necessary for the production processes.

(iv) The use of SLF was not merely incidental to the production processes.

61. The citation made from West Bowers by Mr McCracken suggests that there may have been the following fifth reason for his conclusion:

(v) If a single process involves two activities each of substance so that one is not merely ancillary to the other, then both require permission.

62. Insofar as Mr McCracken's conclusion was based upon the last proposition it was not soundly based. The citation from West Bowers related to two activities each of which required separate consideration for planning purposes, as was the position in that case. There is no reason why two or more activities should not constitute a single use covered by a single planning permission.

63. I do not follow the relevance of the fact that burning of SLF was not necessary for the processes. Achieving a high temperature in the kiln was necessary for the processes. Burning SLF was one means of achieving this. That there were alternative means does not diminish the significance of the role actually played by SLF in the production process.

64. The accuracy of Mr McCracken's statement that the burning of SLF was not "merely incidental" to the processes is questionable. While it played a significant part in the achieving of the required temperature in one kiln, the use of SLF was not central to the process. There is scope for argument about whether it could properly be described as incidental, but even if it was not, it does not follow that it fell to be treated as a separate use.

65. Thus there is nothing in Mr McCracken's reasoning that persuades me that his opinion was correct and, thus, that Mr Fitzgerald's was not. I turn to that opinion.

66. Mr Fitzgerald's reported opinion included the statement:

"In the West Bowers case there were two separate activities, separated both in time and in their nature. At Thrislington..... there is no separation in time between the burning of SLF and the use of heat in the production process.

67. In speaking of the activities being separated in time in West Bowers Mr Fitzgerald was echoing a comment of Sir John Donaldson MR in that case. Sir John had drawn a distinction between the removal of the granite and the subsequent making watertight of the reservoir. I do not consider that it is correct to analyse West Bowers as involving two separate and sequential activities. The operation of removing the gravel was simultaneous with the operation of creating the reservoir. Nourse L J correctly accepted the premise that there was one indivisible process. The true basis for distinguishing West Bowers is that in that case there were two aspects of the operation, each of which had different consequences according to the express terms of the planning regulations so that each had to be separately considered. There is no requirement to give consideration separately to the operation of adding SLF to the fuel used to apply heat in the course of the lime making process.

68. Had Mr Fitzgerald's opinion that it would be wrong to characterise the burning of SLF as a separate use turned solely on his comments in relation to West Bowers, there would have been justification for criticising his reasoning, whether or not his conclusion was correct. That was, however, not the position. Mr Fitzgerald rightly attached significance to a number of other factors:

69. Energy recovery. "Mr Fitzgerald takes the view that the use of SLF, because of its high calorific value - is energy recovery" ... "because it would be categorised as energy recovery rather than disposal, then the nature of the activity is the use of fuel, which is not different from using coal or petroleum coke". I agree with these conclusions, but they represent a rather technical approach to determining the nature and purpose of the burning of SLF. This approach reflects that of the EC Waste Framework Directive, to which effect is given not by planning legislation but by the Environment Act 1995 and the Waste Management Licensing Regulations 1994.

70. This appeal has proceeded on the premise that the SLF constituted ‘waste' under the EC Waste Framework Directive up to the moment that it was burnt. Stanley Burnton J so held in Castle Cement Ltd v Environment Agency [2001] EWHC ADMIN 224 after careful consideration of the Waste Framework Directive and jurisprudence of the European Court of Justice. I do not challenge that conclusion but I would observe that SLF does not have the characteristics normally associated with waste in its popular parlance. The process of blending solvent wastes into SLF produces what is to all intents and purposes a fuel, which is valued by producers of cement and lime. The complex interaction of economic forces in this area results in users of SLF sometimes paying for it and sometimes being paid to accept it, but the evidence clearly establishes that they acquire it because they value its properties as a fuel.

71. In these circumstances there is no question of the second respondents holding SLF for the purpose of disposing of it as waste. They acquire it because they wish to use it as a fuel, and that is how they use it. If SLF was not waste, but was produced as a fuel, there could be no suggestion of the second respondents making two uses of their land, one being burning of fuel and the other the manufacturing of lime. To postulate that the designation of SLF as waste makes all the differences and results in a separate use of the land is unreal. I agree with the obiter observation of Harrison J in R v The Environment Agency and Redland Agriculture Ltd ex parte Gibson (8 May 1988) at p.46 that:

"On any sensible analysis the plants at ... Thrislington are lime producing plants; they are not plants for the incineration of waste."

72. This precisely accords with the following key passages in Mr Fitzgerald's advice, as reported:

"The recovery process is so entirely part of the manufacture of cement for lime that it would be wrong to characterise it as a separate use; there is no waste disposal use in addition to the permitted use.

...the nature of the activity is the use of fuel, which is not different from using coal or petroleum coke."

73. For these reasons I conclude that Mr Fitzgerald committed no error of law in disagreeing with Mr McCracken's conclusion that the use of SLF in one of the kilns at Thrislington constituted the adoption of a separate use of the land that required planning permission.

Did the substitution of SLF for part of the petcoke used to produce lime so alter the character of lime production as to result in a change in the use of the land?

74. The debate that has taken place in this case on the question of whether the use of SLF was a separate use of the land has tended to obscure, or become confused, with this different question. As I observed at the outset, the 1990 Act provides no definition of 'material change in the use of land' - nor did its predecessors.

75. In East Barnet Urban District Council v British Transport Commission [1962] 2 QB 48 Lord Parker CJ had to consider the effect of two different statutory definitions of development. S.53 of the Town and Country Planning Act 1932 provided:

"'Development' in relation to any land includes any use of the 'land or any building thereon for a purpose which is different from the purpose for which the land or the building was last used'".

S.13(2) of the Town and Country Planning Act 1947 provided:

"'Development' means, so far as it is relevant here, 'the making of any material change in the use of any buildings or other land'"

76. Lord Parker observed at p.490 that, although the wording was different, he did not feel that such difference in language necessitated different considerations for the purposes of the case before him.

77. At p.491 Lord Parker stated:

"It seems to me that under both Acts what is really to be considered is the character of the use of the land, not the particular purpose of a particular occupier."

78. At p.492 he approved the statement that whether there had been a material change in use was a question of 'fact and degree in every case'. These statements have been repeatedly invoked since as affording guidance on the question of whether there has been a material change in the use of the land.

79. It seems to me that, applying Lord Parker's approach, an alteration in the source of power or fuel used for a process is capable of constituting a material change in the use of land. For instance, the transition from water or manual power to steam power in the industrial revolution effected, so it seems to me, material changes in the use of the land on which cotton mills stood, although the use of the land could still properly be described as the spinning of cotton.

80. Lord Kingsland criticised Mr Fitzgerald for not reminding the Sub-Committee that the question of whether there had been a material change in use was one of fact and degree. Gibbs J. held at paragraph 69 that the Sub-Committee did not need to be reminded of this as they would have been well aware of the principle. It is right to say, however, that it was implicit in Mr Fitzgerald's opinion that, on the facts of this case, there was no change in the character of the use of the land sufficient, as a matter of fact and degree, to constitute a change in use.

81. In considering whether the use of SLF changed the character of the process at Thrislington to the extent that there was a change in the use of the land, it is necessary to bear in mind that a separate regulatory regime is in place to deal with hazardous substances and pollution risks - see the comments of McNeill J. in R v Surrey County Council ex parte Monk (1986) 53 P&CR 410 at 414-5. There is a further important point, though one on which there was disagreement between Counsel - the implications of the grant in 1993 of planning permission for fuel storage tanks.

82. Lord Kingsland argued that the burning of SLF carried with it the land use consequences of 'delivering, treating, handling and storing hazardous waste on land'. The respondents argued that planning permission for the construction of the storage tanks implicitly permitted their use for storage of SLF which carried with it all those land use consequences. They were thus no longer material when considering the effect of burning the fuel.

83. S.75 of the 1990 Act provides:

"(2) Where planning permission is granted for the erection of a building, the grant of permission may specify the purpose for which the building may be used.

(3) If no purpose is so specified the permission shall be construed as permission to use the building for the purpose for which it is designed.

84. Lord Kingsland submitted that the planning permission granted for the storage tanks was for tanks to be used for the purpose of storing 'recovered solvents' not SLF which was hazardous waste. He relied on the terms of the planning application which described the materials to be stored as 'recovered solvents, e.g. paint thinners'. Lord Kingsland argued that this description identified the products as solvents which had been recovered and could be used as solvents, not waste residues of solvents to be used as fuel.

85. I reject this submission. As Lord Kingsland himself observed, solvents are not used as fuel. The planning application for the storage tanks made it clear that they were to store liquid fuel to act as a partial replacement for solid fuel in the kilns. The supply specification for the fuels was attached to the application. It is plain that the storage tanks were designed for the purpose of storing SLF and the permission to build the tanks consequently included permission to store SLF in them.

86. Gibbs J. described the process involved in the use of SLF as follows in paragraphs 89 and 90 of his judgment:

"... That process can be defined in this way, indeed confined in this way, to the following: the transmission via a pipe from a storage tank to one of the second respondents' kilns of the blended waste, it is burned within the kiln and the emission of the resultant gases after processing in accordance with strict requirements comparable to those of dangerous waste set out by the Environmental Agency; that emission takes place through a tall chimney.

Apart from the possible effect on the quality of the emissions from the chimney it is extremely difficult, if not impossible, to envisage any effect whatever, either in planning terms or in terms of impact on the environment, of the process that the applicant now argues should be regarded as a material change of use. If there is an effect in planning terms it would be a highly theoretical one. As to the emissions, as I have already indicated, all the findings in relation to those have been to the effect that the new process has been of net benefit."

87. I consider that this summary was accurate.

88. In these circumstances I consider that Mr Fitzgerald was not unreasonable if he assumed that there was no need to focus the attention of the Sub-Committee on the test of 'fact and degree'. That test could only lead a reasonable Sub-Committee to one conclusion. The character of the process was not altered to an extent that constituted a material change in the use of the land.

89. For these reasons I have concluded that Gibbs J. was correct to find that the Sub-Committee's decision was not founded upon an erroneous view of the law and I would dismiss the appeal.

LORD JUSTICE PILL:

90. I agree with the answers given by Lord Phillips MR to the questions he has posed at paragraph 39 of his judgment. I was for a time attracted by the argument that, because it is important in social and environmental terms that there are in place proper procedures for the disposal of waste, and in particular hazardous waste such as SLF, it should readily be inferred that such disposal constitutes a distinct and separate land use in planning terms. The effect would then be that its introduction on land would involve a material change of use for the purposes of section 55 of the Town and Country Planning Act 1990 ("the 1990 Act") and constitute development requiring planning permission. On one view, the comprehensive regulation now imposed on the disposal of waste suggests that the activity of waste disposal has a legal status which should be reflected in its recognition as a separate land use. One of the purposes of the planning legislation is to protect the public from changes of use which may have generally adverse environmental effects and, in addition or in the alternative, adverse effects upon the enjoyment of neighbouring land.

91. Waste disposal is an acknowledged land use (Northaven District Council v Secretary of State for the Environment & Anor (1980) 40 P & CR 332) and the use of land for waste disposal may constitute a change of use for the purposes of section 55 of the 1990 Act. I would not be deterred from finding that it may constitute a separate use of land by the fact that the EEC Directive now provides that the disposal of waste by using it principally as a fuel is classified as a "recovery operation" and not a "disposal operation". (Annex II of Council Directive 75/442 as amended).

92. As the Master of the Rolls has stated at paragraphs 56 and 57 of his judgment, there may be a waste disposal use in planning terms not only when waste disposal is the paramount object of the exercise but also when the waste is used to facilitate a process which constitutes a separate use. The land may be subject to two uses, waste disposal and, for example, a manufacturing use. An objective assessment of the activities conducted on site is required to determine whether that state of affairs exists. In West Bowers Farm Products v Essex County Council (1985) 50 P & CR 368, Nourse LJ stated, at p 373, that "the test is an objective one and ... the subjective purpose or motive of the developer is irrelevant". (See also McPhearson v Secretary of State for Scotland [1985] SLT 134).

93. The facts in the present case are not in issue and the use of SLF as fuel, which also has the effect of disposing of it as waste, is on a significant scale. However, the mere fact that a fuel used in the manufacturing process is classified as waste, or even as hazardous waste, does not of itself necessarily lead to the conclusion that the use of the fuel creates a land use distinct from that of manufacturing. I have come to the conclusion, upon the facts, as set out by the Master of the Rolls in his judgment, that the inference should not be drawn that the disposal was in this case a separate and distinct use of land. The disposal by use as fuel should in this case properly be categorised as an integral part of the process of lime manufacture.

94. I have referred to the comprehensive regulation of waste disposal. It is regulated by the Waste Disposal Directive 75/442/EEC, as amended by later directives, and by domestic legislation including the Environmental Protection Act 1990, the Waste Management Licensing Regulations 1994 and, as to hazardous substances, the Planning (Hazardous Substances) Act 1990. There is no doubt, as the judge found, that the operations at Thrislington have obtained the relevant approvals from the Environment Agency. It can be assumed for present purposes that appropriate measures have been taken to comply with the EEC Directives insofar as they provide a separate regulatory regime to deal with hazardous substances and pollution risks.

95. I am not persuaded that it would be right to create in addition a planning control which would require that the introduction of any significant disposal of hazardous waste on land constitutes a change of use even where the disposal is an integral part, by reason of its use as fuel, of the manufacturing process. It does not follow from the great public concern about the disposal of hazardous waste, which is reflected in the Directives and United Kingdom legislation, that a separate and distinct use of land should inevitably be established for planning purposes when significant waste disposal is undertaken.

96. I also agree with the conclusion of the Master of the Rolls at paragraph 38 of his judgment that the lawfulness of the decision of the Sub-Committee depended upon the soundness of the advice of Mr Fitzgerald QC. I do not accept the different approach of the judge which was that, provided the conflicting legal opinions were placed before the Committee, and they were not misled, their decision cannot be impugned. At paragraph 76 of his judgment, Gibbs J stated:

"In my judgment it was plainly open to the subcommittee to come to a view contrary to that expressed by Mr Fitzgerald, or indeed, if, as a consequence of the differences of opinion revealed in the joint report, they were in doubt, then it was open to them to have a full debate about it and/or to call for further information and clarification. In my judgment, taken in that context the reported advice of Mr Fitzgerald including the words ‘it would be wrong to characterise it as a separate use' is a means of conveying to the committee his clear view that there is here no separate use on the facts of the case before them; the recommendation was an invitation to the subcommittee to accept that view, not a requirement or direction in law."

In the last sentence of paragraph 80, Gibbs J stated:

"It is an issue which is, I think, arguable either way but the view of Mr Fitzgerald on the point, as conveyed to the committee, was in my judgment a reasonable one and cannot be said to have significantly misled them, especially as the contrary view of Mr McCracken was also put."

97. Gibbs J appears to have approached the case on the basis that provided the Officers' Joint Report ("the Report") to the Sub-Committee, which incorporated Mr Fitzgerald's advice, did not mislead the Committee, it was a sufficient report. The notion of misleading featured strongly in the argument before the judge. When expressing conclusions at paragraph 84, Gibbs J used the word "mislead" or "misleading" four times, including a further reference to the fact that the Committee were "also told of Mr McCracken's contrary view". The emphasis upon "misleading" arises from a sentence in the judgment of Judge LJ in Oxton Farms v Selby District Council & Anor, unreported 18 April 1997. Judge LJ stated:

"In my judgment an application for judicial review based on criticisms of the Planning Officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the Committee about material matters which thereafter are left uncorrected at the meeting of the Planning Committee before the relevant decision is taken."

98. That approach is appropriate when the party seeking to quash the permission is alleging, and only alleging, that the Committee were misled. It is not, nor in my view was it intended to be, a comprehensive statement of the duty of a planning officer in reporting to a committee. That duty is broader than a duty not actively to mislead. It includes a positive duty to provide sufficient information and guidance to enable the members to reach a decision applying the relevant statutory criteria. In the end, it is a matter of fact and degree for the members. However where, as in the present case, the decision-making body is required to apply a legal test to the facts as the members find them, it includes a duty to provide guidance as to what legal test is appropriate. To place before them conflicting legal opinions as to what legal test they should apply will often be insufficient. The facts in the present case are not in issue but guidance was required as to which test should be applied to them, the test now advocated by Lord Kingsland or that now advocated on behalf of the respondents, which accords with the advice of Mr Fitzgerald.

99. Parts of Mr Fitzgerald's reasoning as summarised in the Report and set out in paragraph 29 of the Master of the Rolls judgment may, with respect, be open to debate. For example, I do not agree with the basis on which he has distinguished West Bowers. I agree with the basis explained by the Master of the Rolls at paragraph 66. I agree with the reasoning of Nourse LJ in West Bowers and with the conclusion he reached. The decision in the present case casts no doubt upon the authority of West Bowers. There can however be no doubt what Mr Fitzgerald's central and relevant conclusion was. It was that "the recovery process is so entirely part of the manufacture of cement for lime that it would be wrong to categorise it as a separate use; there is no waste disposal use in addition to the permitted use". He is reported as advising "in clear terms" that "the use of SLF on site does not and would not constitute a material change of use". Under the heading: "Recommendations", the joint report states:

"On the basis of the advice given by Mr Fitzgerald, we would RECOMMEND the Sub-Committee to conclude the use of SLF at Thrislington (and its potential use at Eastgate) does not constitute a material change of use requiring a separate planning permission."

100. Thus the Sub-Committee were given, in the Report, legal advice which the Court has held to be sound and were recommended to follow it. It is in this way that the Officers have discharged their duty and not in present circumstances merely by succeeding in not misleading committee members.

101. I only add that I do not regard the grant of planning permission for fuel storage tanks in 1993 as being conclusive in the respondents' favour on the present issues even assuming, as I do without deciding the point, that it conferred permission to store SLF. Waste disposal may constitute a separate use even if permission has previously been given for its storage on site. The present issue does not appear to have occurred to anyone when planning permission was granted in 1993.

102. I agree that the appeal should be dismissed.

SIR MARTIN NOURSE:

103. I agree with both judgments.

ORDER:

1. Appeal dismissed.

2. Appellants to pay 1st respondent's costs of appeal.

3. No order as to 2nd respondent's costs.

4. Detailed assessment of appellant's legal aid costs. Contribution of appellant to be assessed by costs judge.

5. Leave to appeal to the House of Lords refused.

(Order does not form part of approved Judgment)