Incinerator use not abandoned after twenty years

An inspector has granted an LDC for a Worcestershire waste incinerator which had not been operational for over twenty years.

The incinerator had been commissioned jointly by two local authorities in 1970 and used for the disposal of waste until early 1995, when it was closed down because of the costs of complying with more rigorous control of emissions.

The council contended that it was not certain the incineration plant had deemed consent, and that there had been no incineration use during the last 10 years. Third parties questioned whether or not the previous use had been abandoned.

The inspector found it improbable that the council plant had been constructed and operated without planning permission, deemed or otherwise, and the use of the site for waste incineration was lawful at the time it ceased in 1995. It appeared to her that the council had misconstrued the relevant period, which was not the 10 years before the date of the application, because the use was already lawful by reason of a previously accrued 23-year period of continuous use.

Considering whether the use had been abandoned or lost by subsequent events, and applying the judgement in Pioneer Aggregates that a use cannot be abandoned unless it is replaced by a different use or development, the inspector concluded in the circumstances of the case that rights to a lawful incineration use had not been lost. The four tests of abandonment concerning the physical condition of the land, the period of non-use, any other use, and the owner’s intentions were, in her assessment, all satisfied. The fact that ancillary buildings had been disposed of separately did not have any bearing on the main use of the site and did not commence a new chapter in its planning history.

Inspector: Sukie Tamplin; Written representations

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