Coming up for air

Cornwall Council recently warned of “financially disastrous” delays after the High Court quashed planning permission for a £117m waste incinerator project. David Hart QC reviews the case, which dealt with issues of air quality and legitimate expectation.

The case of R (o.t.a Cornwall Waste Forum, St Dennis Branch) v Secretary of State for Communities and Local Government [2011] EWHC 2761 (Admin) Collins J, 13 October 2011 concerned who is to decide issues of air quality in a planning case about incinerators/energy-from-waste plants.

The claimants were objectors at a public inquiry – which took a scarily long time to hear – 36 days. As a result of the inquiry, the Secretary of State (D1) decided to grant planning permission to D2 for the construction of two energy-from-waste plants.

The proposed site was next to two Special Areas of Conservation (SACs) which were protected under the EU Habitats Directive as transposed by the Conservation of Habitats and Species Regulations 2010. One of the sites contained the rare Western Liverwort (Marsupella profunda), which, I am reliably informed  (by Wikipedia), is found in only three places in Britain, all in Cornwall.

The 2010 Regulations laid down who were to be the “relevant” and “competent” authorities. D1 was both, relevants under reg.61(1) where he had to consider whether an “appropriate assessment” of the implications of a proposed development for a SAC should be carried out, and if so whether the development might have a significant effect on the SAC.

The inquiry finished its main hearings in May 2010. In August 2010, the Environment Agency issued a draft environmental permit for the plants, saying that there was no need for an appropriate assessment. The parties then made submissions on that draft permit. In December 2010 the Agency issued the final permit.

The inspector thereafter reported, but this was only released to the parties when D1 adopted that report in May 2011. The inspector relied on the issue of the permit as an indication that an “appropriate assessment” of the impact of the development upon the SACs under the Regulations was unnecessary. The Agency was also a “competent authority” and it would not have issued a permit if an appropriate assessment had been necessary – it was said.

The objectors said they had a legitimate expectation that D1 would act as a competent authority and decide before granting planning permission whether an “appropriate assessment” under the Regulations should be carried out but in breach of that legitimate expectation he had improperly abdicated his responsibility to the Environment Agency.

Collins J agreed with the objectors. It wasn’t that the Agency was not also a competent authority but D1 was also charged to make his own assessment of the impact on the SAC. He could not delegate that function to the Agency, even though their responsibilities overlapped. D1's conclusion was indeed in breach of the objectors' legitimate expectation that D1 would act as the competent authority.

The key legal question on the first issue was making sense of regulations 61, 65 and 68 of the 2010 regulations. Regulation 61 requires all competent authorities to make an appropriate assessment. Regulation 65(2) makes it clear that regulation 61(1) does not require an authority to assess any implications of a plan or project which would be more appropriately assessed by another authority – a provision latched on to by the defendants. But the judge’s answer was that the present case was a classic one of overlapping responsibilities, and that the inspector/D1 could not completely defer to the Agency:

“16. It is obvious that it is incumbent upon the authority responsible for the planning decision to consider whether the facility, if constructed, would inevitably be likely to have an adverse effect on an SAC because if that is the situation then it is plain that permission should not be granted. Equally, as it seems to me, it has an obligation to consider whether without controls the facility would be likely to have such a significant effect because, again, it may be in a given case that conditions under the planning regime would be appropriate in order to ensure, so far as possible, that no damage was done. It would then of course be for the EA to consider what steps needed to be taken in the light of the material that was put before the competent authority, in this case the Secretary of State, to ensure that the emissions were kept at the lowest possible extent so as to avoid any damage being caused.

17. There is an obvious overlap, and it is not possible in my view to say in any given case that the planning considerations should defer, as it were, to control by the authority concerned with the grant of a permit. It has its own obligation.

18. That that is the case would seem to be confirmed to an extent by Regulation 68 (which is in Chapter 2 of Part VI under the heading “Planning”) because this provides by paragraph (1):

“(1) The assessment provisions apply in relation to — (a) granting planning permission on an application under Part 3 of the Town & Country Planning Act 1990 ….. “

This was of course such an application. Paragraph (2) provides:

“(2) Where the assessment provisions apply, the competent authority may, if they consider that any adverse effects of the plan or project on the integrity of a European site ….. would be avoided if the planning permission were subject to conditions or limitations, grant planning permission or, as the case may be, take action which results in planning permission being granted or deemed to be granted subject to those conditions or limitations.”

Therefore it is plain that it is envisaged that there is a possibility in a case such as this that the planning permission, if granted, should be subject to conditions to avoid any damage that might otherwise occur.”

The second issue was legitimate expectation. The judge reached his main conclusions on this at [41] and [47-48]:

“41. Clearly what was envisaged and what all parties must have appreciated was the position that the inspector would consider and  give his views on not only whether an appropriate assessment was needed  but, if possible, what the appropriate assessment should decide..

47. That the objectors were led to believe that the inspector would deal with the issue whether an appropriate assessent was required, there can, in my view, be no doubt. That was on the basis that the Secretary of State was the competent authority and he it was who was the appropriate authority to deal with the issue. The objectors were never disabused of that belief by anything said by the inspector in the course of the inquiry process.

48. Whether the claim is correctly focussed on the expectation that the Secretary of State was the relevant competent authority may be open to question. But it seems to me that the real point is that the expectation was that the inspector would consider and reach a view on the need for an appropriate assessment.”

The judge added that in considering the impact of a development on a SAC, there was a two-stage approach: first, consideration should be given to whether no adverse effects could possibly result. If that was not the case, an appropriate assessment had to be made. Whilst technically it was not a planning inspector who would make an appropriate assessment, in practice the planning inspector’s recommendations would be persuasive.

Whilst it was said that the Agency would not issue a permit for a development that would cause harm, that wholly missed the point that C had objected at inquiry to the evidence on which the Agency had based the issue of its permit, and the planning inspector had failed to deal with the weight to be attached to that evidence. As the judge put it at [59]: “There was evidence put before the inspector that the EA had got it wrong. But he did not, as a result of his approach, deal with or reach any decisions on the evidence which had been produced to challenge the EA’s view.”

There was another twist. Because more than three months had expired between the issue of the permit and the inspector’s decision, the judge ruled that the objectors had been further prejudiced through being denied the opportunity of seeking judicial review of the Agency’s decision through that delay.

What then to do about this illegality? The judge ruled that it was inappropriate for the court to exercise its discretion and refuse relief to the objectors. Despite the defendants saying that delay to the construction of the incinerators might cost the relevant local authority £200m, the Directive and the 2010 Regulations were the law and had to be obeyed. So the decision had to be quashed – i.e. struck down.

But the courts have not heard the last of the case. Given its general importance, the judge gave D1 permission to appeal to the Court of Appeal.

David Hart QC is a barrister at 1 Crown Office Row. This article first appeared on the set’s UK Human Rights blog.