Air quality: whose job is it anyway to decide?

17 October 2011 by David Hart KC

Cornwall Waste Forum, St Dennis Branch v Secretary of State for Communities and Local Government (2011) QBD (Admin, CO/6088/2011), Collins J, 13 October 2011

An interesting case about who is to decide issues of air quality in a planning case about incinerators/energy-from-waste plants – that choice of terminology depends on whether you are objecting to or applying for permission to construct. Because the judgment is extempore, it is very shortly reported at the moment (on Lawtel for those who have access to this subscription service), though some extracts are to be found on the claimants’ website.

The claimants were objectors at public inquiry. As a result of the inquiry, the Secretary of State (D1, in the form of Eric Pickles) decided to grant planning permission to D2 for the construction of two energy-from-waste plants. The proposed site of the incinerators (NB 1-1 on the terminology) was next to two Special Areas of Conservation (SACs) which were protected under the EU Habitats Directive as transposed by (now) the Conservation of Habitats and Species Regulations 2010. The Regulations said who were to be the “relevant” and “competent” authorities. D1 was both, particularly under reg.61(1) where he had to carry out an “appropriate assessment” of the implications of a proposed development for a SAC.

Now came the problem for the objectors. After the hearing of the inquiry, the Environment Agency issued an environmental permit for the plants. Some 3 months later, the planning inspector (as D1’s appointee) granted planning permission. In doing so, he 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 it 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.

In quotes taken from the objectors’ website after the decision:

“Clearly what was envisaged was 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…….That the objectors were led to believe that the inspector would deal with the issue, there can be no doubt. That was on the basis that the Secretary of State was the Competent Authority and 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.”
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. In addition there could be no doubt that air quality and air emissions were a matter of planning control; planning conditions could be imposed to protect against them, even though the Agency also was in a position to regulate the plant through the terms of the environmental permit.

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. “There was evidence put before the inspector that the EA had got it wrong. But he did not 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 3 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 £200 million, 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 both defendants permission to appeal to the Court of Appeal.

Detailed comment is premature before I read the judgment. But the headline to be drawn from it is a welcome recognition by the judge that certain types of unlawfulness (however inconvenient to defendants) simply cannot be waved off as “one of those things”. The other obvious point is that if planning inspectors are in effect taking the role of the Secretary of State, then this requires the inspectors to discharge all the duties upon the Secretary of State, including those under these conservation regulations.

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