Clinical waste incinerator — Environmental impact of emissions to the atmosphere — Challenge to decision of Secretary of State to grant planning permission on appeal — Extent to which responsibility could be left to Environmental Protection Act regime
The Northern
Regional Health Authority had identified the need for a means of incineration
of likely clinical waste arising in their area. The second respondents,
Northumbrian Water Group plc (‘NWG’), applied to the appellants, Gateshead
Metropolitan Borough Council (‘the council’), for outline planning permission
for a clinical waste incinerator at Follingsby Lane, Wardley, Gateshead, and
were refused. NWG appealed to the first respondent, the Secretary of State for
the Environment, and a public local inquiry into the appeal was held in April
and May 1991. The appointed inspector concluded that while an appropriate plant
could be built to meet the various standards relating to emission limits, the
impact on air quality and agriculture in the locality was insufficiently
defined and public disquiet regarding fears as to environmental pollution could
not be sufficiently allayed to make the proposed development acceptable.
Accordingly, he recommended to the Secretary of State that planning permission
should be refused.
The Secretary
of State, in his decision letter, referred to the fact that section 54A of the
Town and Country Planning Act 1990 had been enacted since the inquiry closed so
that the appeal had to be determined in accordance with the development plan unless
material considerations indicated otherwise. He agreed with the inspector that
the proposed
but that, as a special industrial use, the acceptability of the proposal in planning
terms would turn on whether it satisfied three criteria in structure plan
policy EN16. He concluded that all of those criteria would be met and in
relation to the specific requirement that the consequences of the development
should be acceptable in terms of environmental impact, he stated that in
granting the necessary pollution control authorisation under the Environmental
Protection Act 1990 (‘the EPA’) HM Inspectorate of Pollution (‘HMIP’) would
determine the emission limits. He considered that it was not the role of the
planning system to duplicate controls under the EPA and that control of
emissions in this case should be regulated by HMIP. The proposal did not
conflict with the development plan and it was clear that its impact in visual
and environmental terms on the surrounding land would not be adverse. Its
impact on the development potential of the surrounding land and possible
deterrents to certain industries was not sufficient to justify dismissing the
appeal. Accordingly, the Secretary of State rejected the inspector’s
recommendation and granted outline planning permission. The council applied to
the High Court under section 288 of the Town and Country Planning Act 1990 to
quash his decision on the principal grounds that: (1) the Secretary of State
could not lawfully abdicate his planning responsibilities to the EPA regime;
(2) there was no evidence on which he could be satisfied that controls under
the EPA would be adequate; (3) if he could not properly be satisfied that these
concerns could be dealt with under the EPA it followed that the proposal would
not comply with the structure plan policy requirement for acceptable
consequences in terms of environmental impact.
The
application was dismissed by Mr Jeremy Sullivan QC, sitting as a deputy judge
of the Queen’s Bench Division: see [1993] 3 PLR 100. The council appealed,
contending that the Secretary of State: (a) had not given proper or adequate
reasons for rejecting the inspector’s recommendation and the reasoning which
led the inspector to that recommendation; and (b) was wrong to say in his
decision letter that the controls under the EPA were adequate to deal with the
emissions and the risk to human health.
was dismissed.
1. It was
commonplace that a decision-maker had to give reasons for the decision. Those
reasons must be proper, adequate and intelligible. Here the Secretary of State
had given coherent and clear reasoning: see pp94F-95B.
2. Once the
information about air quality was obtained it was a matter for informed judgment
what, if any, increases in polluting discharges of various elements into the
air were acceptable and whether the best available techniques, etc would ensure
that those discharges were kept within acceptable limits. Those issues were
clearly within the competence and jurisdiction of HMIP. The Secretary of State
was therefore justified in concluding that the areas of concern which led to
the inspector recommending refusal were matters which could properly be decided
by
p96C-F.
to in the judgments
Westminster
City Council v Great Portland Estate [1985]
AC 661; [1984] 3 WLR 1035; (1984) 50 P&CR 34; [1985] JPL 108; sub nom
Great Portland Estates plc v Westminster City Council [1984] 3 All
ER 744, HL
Appeal against
decision of Mr Jeremy Sullivan QC
This was an
appeal by Gateshead Metropolitan Borough Council against the decision of Mr
Jeremy Sullivan QC (sitting as a deputy judge of the Queen’s Bench Division) on
September 29 1993 whereby he dismissed the council’s application to quash the
decision dated May 24 1992 of the first respondent, the Secretary of State for
the Environment, and whereby he had allowed an appeal by the second
respondents, Northumbrian Water Group plc, against the refusal by the council
to grant outline planning permission for a clinical waste incinerator at
Follingsby Lane, Wardley, Gateshead: [1993] 3 PLR 100.
and Thomas Hill (instructed by Sharpe Pritchard, London agents for Gateshead
Metropolitan Borough Council) appeared for the appellants.
Richards and Richard Drabble (instructed by the Treasury Solicitor) appeared
for the first respondent, the Secretary of State for the Environment.
Hicks and Russell Harris (instructed by McKenna & Co) appeared for the
second respondents, Northumbrian Water Group plc.
following judgments were delivered.
GLIDEWELL
LJ: This appeal relates to an activity which, in
general terms, is subject to planning control under the Town and Country
Planning Act and to control as a prescribed process under Part I of the
Environmental Protection Act 1990. The main issue in the appeal is, what is the
proper approach for the Secretary of State for the Environment to adopt where
these two statutory regimes apply and, to an extent, overlap?
Northumbrian
Water Group plc (‘NWG’) wish to construct and operate an incinerator for the
disposal of clinical waste on a site some 9 acres in extent, comprising about
half of the area of the disused Felling Sewage Treatment Works at Wardley,
Gateshead Metropolitan Borough. Under the Town and Country Planning Act
planning permission is necessary for the construction of the incinerator and
for the commencement of its use thereafter. The proposed incineration is a prescribed
process within section 2 of the Environmental Protection Act 1990 and Schedule
1 of the Environmental Protection (Prescribed Processes and Substances)
Regulations 1991 (SI 1991 No 472) as amended. An authorisation to carry on the
process of incineration is therefore required by section 6 of the Environmental
Protection Act. In this case, the enforcing authority which is responsible for
granting such an authorisation is HM Inspectorate of Pollution (‘HMIP’).
Two
applications were made to Gateshead, the local planning authority, for planning
permission for the construction of the incinerator.
submitted on October 26 1991. The application was refused by Gateshead by a
notice dated February 4 1991 for six reasons which I summarise as follows. The
proposal is contrary to the provisions of the approved development plan, both
the local plan and the county structure plan; the use of land for waste
disposal purposes conflicts with the allocation of neighbouring land for
industrial and/or warehousing purposes and could prejudice the development of
that land; since there was no national or regional planning framework which
identified the volume of clinical waste which was likely to arise, the proposal
was premature; the applicants have failed to supply sufficient information that
the plant could be operated without causing a nuisance to the locality; the
applicants have failed to demonstrate that the overall effects on the
environment, particularly in relation to health risk, have been fully
investigated and taken account of. Then there was finally a ground relating to
the reclamation and development of the site stating that no proposals have been
submitted demonstrating how contamination arising from its previous use could
be treated. That point does not arise in this appeal.
NWG appealed
against the refusal to the Secretary of State for the Environment. An inquiry
into the appeal was heard by an inspector of the Department of the Environment,
Mr C A Jennings BSc CEng, with the assistance of Dr Waring, a chemical
assessor, between April 9 and May 1 1991. The inspector and the assessor
reported to the Secretary of State on August 3 1992. The inspector recommended
that permission be refused. The Secretary of State by letter dated May 24 1993
allowed the appeal and granted outline permission subject to conditions.
Gateshead applied to the High Court under section 288 of the Town and Country
Planning Act 1990 for an order that the Secretary of State’s decision be
quashed. On September 29 1993 Mr Jeremy Sullivan QC, sitting as a deputy High
Court judge, dismissed the application. Gateshead now appeal to this court. The
relevant provision of the Town and Country Planning Act comprises sections 54A,
72(2) and 79(4). The effect of those sections is that, in determining the
appeal the Secretary of State was required to decide in accordance with the
provisions of the development plan unless material considerations indicated
otherwise and to decide in accordance with other material considerations.
In the
Environmental Protection Act 1990, section 2(1) provides:
The Secretary
of State may, by regulations, prescribe any description of process as a process
for the carrying on of which after a prescribed date an authorisation is
required under section 6 below.
It is agreed
that the operation of the incinerator is such a process. By section 6(1):
No person
shall carry on a prescribed process after the date prescribed or determined for
that description of process by . . .
– relevant
regulations –
except under
an authorisation granted by the enforcing authority and in accordance with the
conditions to which it is subject.
The enforcing
authority in this case means, strictly, the chief inspector, but in practice
HMIP. Section 6(2) provides:
An
application for any authorisation shall be made to the enforcing authority in accordance
with Part I of Schedule 1 of this Act . . .
Section 6
continues:
(3) Where an application is duly made to the
enforcing authority, the authority shall either grant the authorisation subject
to the conditions required or authorised to be imposed by section 7 below or
refuse the application.
(4) An application shall not be granted unless
the enforcing authority considers that the applicant will be able to carry on
the process so as to comply with the conditions which would be included in the
authorisation.
Section 7(1)
deals with conditions which are required to be attached to any authorisation.
By 7(1)(a):
There shall be
included in an authorisation –
.
. such specific conditions as the enforcing authority considers appropriate . .
. for achieving the objectives specified in subsection (2) below.
Those
objectives are:
(a) ensuring that, in carrying on a prescribed
process, the best available techniques not entailing excessive cost will be
used –
(i) for preventing the release of substances
prescribed for any environmental medium into that medium or, where that is not
practicable by such means, for reducing the release of such substances to a
minimum and for rendering harmless any such substances which are so released;
and
(ii) for rendering harmless any other substances
which might cause harm if released into any environmental medium.
Finally by
subsection (4)
Subject to
subsections (5) and (6) below, there is implied in every authorisation a
general condition that, in carrying on the process to which the authorisation
applies, the person carrying it on must use the best available techniques not
entailing excessive cost — . . . for . . .
precisely the
same purposes as those set out in subsection (2). When the inquiry was held an
application had been made to HMIP for an authorisation, but that had not yet
been determined.
The
development plan consisted of the approved Tyne and Wear Structure Plan,
together with a local plan for the area. In the structure plan the relevant
policy is numbered EN16. It reads:
Planning
applications for development with potentially noxious or
satisfied: –
(a) adequate separation from other development
to ensure both safety and amenity;
(b) the availability of transport routes to
national networks which avoid densely built-up areas and provide for a safe
passage of hazardous materials;
(c) acceptable consequences in terms of
environmental impact.
It was agreed
at the inquiry and is agreed before us, that criteria (a) and (b) are met. The
issue revolves around criterion (c), whether the development will have
‘acceptable consequences in terms of environmental impact’.
I comment
first about the relationship between control under the Town and Country
Planning Act and the Environmental Protection Act. In very broad terms the
former Act is concerned with control of the use of land and the Environmental
Protection Act with control (at least in the present respect) of the damaging
effect on the environment for process which causes pollution. Clearly these
control regimes overlap.
Government
policy overall is set out in a White Paper called This Common Inheritance,
Britain’s Environmental Strategy, which is command paper 1200. The main
part of this to which reference was made during the hearing of the appeal and
before the deputy judge is para 6.39 which reads:
Planning
control is primarily concerned with the type and location of new development
and changes of use. Once broad land uses have been sanctioned by the planning
process it is the job of the pollution control to limit the adverse effects the
operations may have on the environment. But in practice there is common ground.
In considering whether to grant planning permission for a particular
development a local authority must consider all the effects including potential
pollution; permission should not be granted if that might expose people to
danger.
There is also
an earlier passage which is relevant in para 1.18 headed ‘Precautionary
action’. The latter part of that paragraph reads:
Where there
are significant risks of the damage to environment, the Government will be
prepared to take precautionary action to limit the use of potentially dangerous
materials or the spread of potentially dangerous pollutants, even where
scientific knowledge is not conclusive, if the balance of likely costs and
benefits justifies it. This precautionary principle applies particularly where
there are good grounds for judging either that action taken promptly at
comparatively low cost may avoid more costly damage later, or that irreversible
effects may follow if action is delayed.
More specific
guidance relating to the application of planning control under the planning Act
is to be given in a planning policy guidance note. That was in draft at the
time of the inquiry. The draft of consultation was issued in June 1992 and, as
I understand it, is still in that state. However, reference was made to it
during the inquiry and Mr David Mole QC, for Gateshead, has referred us to two
paragraphs in particular. These are:
125. It is
not the job of the planning system to duplicate controls which are the
statutory responsibility of other bodies (including local authorities in their
non-planning functions). Planning controls are not an appropriate means of
regulating the detailed characteristics of industrial processes. Nor should
planning authorities substitute their own judgment on pollution control issues
for that of the bodies with the relevant expertise and the responsibility for
statutory control over those matters.
126. While
pollution controls seek to protect health in the environment, planning controls
are concerned with the impact of development on the use of land and the
appropriate use of land. Where the potential for harm to man and the
environment affects the use of land (eg by precluding the use of neighbouring
land for a particular purpose or by making use of that land inappropriate
because of, say, the risk to an underlying aquifer) then planning and pollution
controls may overlap. It is important to provide safeguards against loss of
amenity which may be caused by pollution. The dividing line between planning
and pollution control consideration is therefore not always clear-cut. In such
cases close consultation between planning and pollution control authorities
will be important at all stages, in particular because it would not be sensible
to grant planning permission for a development for which a necessary pollution
control authorisation is unlikely to be forthcoming.
Neither the
passages which I have read from the White Paper nor those from the draft
planning policy guidance are statements of law. Nevertheless, it seems to me
they are sound statements of common sense. Mr Mole submits, and I agree, that
the extent to which discharges from a proposed plant will necessarily or
probably pollute the atmosphere and/or create an unacceptable risk of harm to
human beings, animals or other organisms, is a material consideration to be
taken into account when deciding to grant planning permission. The deputy judge
accepted that submission also. But the deputy judge said at p17 of his judgment
and in this respect I also agree with him
Just as the
environmental impact of such emissions is a material planning consideration, so
also is the existence of a stringent regime under the EPA for preventing or
mitigating that impact for rendering any emissions harmless. It is too
simplistic to say, ‘The Secretary of State cannot leave the question of
pollution to the EPA’.
The inspector,
having considered the advice of his assessor and having set out the evidence
and submissions made to him in very considerable detail in his report,
concluded that save for the effect of discharges from the plant on air quality
and thus on the environment generally, all the other criteria in the structure
plan policy and all other possible objections were met. In particular,
summarising, first, all the responsible authorities agreed that incineration
was the proper solution to the problem of the disposal of clinical waste. It
followed also that one or more incinerators for that purpose were needed to be
constructed in the area generally. Second, this site was at an acceptable
distance from a built-up area and the road access to it is satisfactory. Third,
the inspector found that the construction of this plant on the site might
inhibit some other industrial processes, particularly for food processing, from
being established nearby. But it certainly would not inhibit many other
industrial processes.
assessor considered in some detail the possible malfunction of the plant.
Indeed, we are told that this occupied a major part of the time of the inquiry.
In conclusion, the inspector said in para 488 of this report:
I am
therefore satisfied that an appropriate plant could be designed with sufficient
safeguards included, such that a reliability factor, within usual engineering
tolerances, could be achieved.
He summarised
his conclusions at paras 505 and 506 of his report. In para 505 he said:
. . . I have
examined each of the subject areas that led to GMBC refusing the application
and have come to the following main conclusions:
(1) The maximum emission limits specified by the
Appellants accord with the appropriate standards.
(2) It would be possible to design a plant to
perform within those limits in routine operation.
(3) It would be possible to design sufficient
fail-safe and stand-by systems such that the number of emergency releases could
be reduced to a reasonable level.
(4) While some visual detriment would occur from
the presence of the stack and some industrialists might be deflected from the
locality, neither effect would be sufficient to justify refusal of the proposal
on those grounds alone.
(5) The background air quality of the area is
ill-defined and comparison with urban air standards for this semi-rural area
gives an incomplete picture.
(6) Discharges of chemicals such as cadmium,
although within set limits, are unacceptable on to rural/agricultural areas.
(7) In relation to public concern regarding
dioxin emission, the discharge data is only theoretical and insufficient
practical experience is available for forecasts to be entirely credible.
506. I am
therefore satisfied that while an appropriate plant would be built to meet the
various standards, the impact on air quality and agriculture in this semi-rural
location is insufficiently defined, despite the efforts of the main parties at
the inquiry, and public disquiet regarding fears as to environmental pollution
and in particular dioxin emissions cannot be sufficiently allayed to make the
proposed development of a clinical waste incinerator on this site acceptable. I
have reached this conclusion in spite of the expectation that all of the
conditions suggested would be added to any permission and in spite of the
suggestion that the valuable Section 106 agreement could be provided.
Therefore, in
para 507 he recommended that the appeal be dismissed.
In his
decision letter, the Secretary of State considered environmental impact and the
inspector’s conclusions in the passage leading up to the paragraphs to which I
have just referred, in paras 19, 20 and 21. In para 19 he said that ‘the other
principal environmental impact would be that of emissions to the atmosphere
from the plant’. He noted that NWG, for the purposes of assessing the impact,
indicated that the maximum emission limits for normal operation to which they
were prepared to tie themselves were set out in a document numbered NW9 and
that that
permission. The inspector
. . . also
notes the view of the assessor that these limits were in keeping with current
United Kingdom prescriptive standards and that HMIP accepted these limits were
a valid starting point for their authorisation procedures under Part I of the
Environmental Protection Act 1990. He further notes the Inspector’s statement
that any emission standards set by HMIP in a pollution control authorisation
for the plant would be lower than those indicated in document NW9. The
Secretary of State accepts it will not be possible for him to predict the
emission limits which will be imposed by HMIP but he is aware of the
requirements for conditions which must be included in an authorisation under
section 7 of the Environmental Protection Act 1990.
20. The
Inspector’s conclusion that the impact of some of the maximum emission limits
indicated in document NW9 are not acceptable in a semi-rural area is noted.
While this would weigh against your clients’ proposals, the Secretary of State
considers that this conclusion needs to be considered in the context of the
Inspector’s related conclusions. Should planning permission be granted the
emission controls for the proposed incinerator will be determined by HMIP.
Draft Planning Policy Guidance on ‘Planning and Pollution Controls’ was issued
by the Department of the Environment for consultation in June 1992. It deals
with the relationship between the two systems of control and takes account of
many of the issues which concerned the Inspector. While the planning system
alone must determine the location of facilities of this kind, taking account of
the provisions of the development plan and all other material considerations,
the Secretary of State considers that it is not the role of the planning system
to duplicate controls under the Environmental Protection Act 1990. Whilst it is
necessary to take account of the impact of potential emissions on neighbouring
land uses when considering whether or not to grant planning permission, control
of those emissions should be regulated by HMIP under the Environmental
Protection Act 1990. The controls available under Part I of the Environmental
Protection Act 1990 are adequate to deal with emissions from the proposed plant
and the risk of harm to human health.
21. An
application for a pollution control authorisation had been made when the
inquiry began, but HMIP had not determined it. However, in view of the
stringent requirements relating to such an authorisation under Part I of the
Environment Protection Act 1990, the Secretary of State is confident that the
emission controls available under the Environmental Protection Act 1990 for
this proposal are such that there would be no unacceptable impact on the
adjacent land. He therefore concludes that the proposed incinerator satisfies
the criteria in Policy EN16 and is in accordance with the development plan.
This is a key point in favour of the proposal.
His overall
conclusions are set out in paras 36, 37 and 38 of the decision letter.
36. The
Secretary of State agrees that it would be possible to design and operate a
plant of the type proposed to meet the standards which would be likely to be
required by HMIP if a pollution control authorisation were to be granted. It is
clear that the predicted maximum emission levels set out in document NW9 which
your clients were prepared to observe raised some concerns with respect to
their impact on a semi-rural area. However
being granted, these concerns could and would be addressed by HMIP in the
pollution control authorisation process. While noting the Inspector’s view that
emission standards set by HMIP would be more stringent than those in document
NW9, the Secretary of State considers that the standards in document NW9 simply
represent the likely starting point for the HMIP authorisation process, and do
not in any way fetter their discretion to determine an application for an
authorisation in accordance with the legal requirements under the Environmental
Protection Act 1990.
37. Those
issues being capable of being satisfactorily addressed, the remaining issue on
which the decision turns is whether the appeal site is an appropriate location
for a special industrial use, taking into account the provisions of the
development plan. The proposal does not conflict with the development plan and
it is clear that its impact in visual and environmental terms on the
surrounding land would not be adverse. Its impact on the development potential
of the surrounding land is more difficult to assess but, while the Secretary of
State accepts the view that an incinerator may deter some types of industry, he
also accepts that the overall impact would not be clear-cut and possible
deterrence to certain industries is not sufficient to justify dismissing the
appeal.
38. The
Secretary of State therefore does not accept the Inspector’s recommendation and
for these reasons has decided to allow your clients’ appeal.
He therefore
granted permission subject to a substantial list of conditions.
Mr Mole’s
argument on behalf of Gateshead on this appeal falls under two heads. First,
the Secretary of State did not give proper or adequate reasons for rejecting
the inspector’s recommendation and the reasoning which led the inspector to
that recommendation. This, submits Mr Mole, is a failure to comply with
‘relevant requirements’. The requirements are to be found set out in the Town
and Country Planning (Inquiries) Procedure Rules 1992 (SI 1992 No 2038), r17.1.
Thus, this is a ground upon which, provided prejudice be shown to Gateshead
(and Mr Mole submits it is) action can be taken to quash the Secretary of
State’s decision under section 288(1)(b).
It is
commonplace that a decision-maker, including both a local planning authority
when refusing permission and particularly the Secretary of State when dealing
with an appeal, must give reasons for the decision. The rules so provide. The
courts have held that those reasons must be ‘proper, adequate and
intelligible’. The quotation is from the speech of Lord Scarman in Westminster
City Council v Great Portland Estate [1985] AC 661 at p683. While of
course accepting that it is necessary to look and see whether the Secretary of
State’s reasons are proper, adequate and intelligible, I do not accept Mr
Mole’s argument that they are not. In the paragraphs of his decision letter to
which I have referred, the Secretary of State says, in effect:
I note that
the Inspector says that the impact of some of the maximum emission limits
indicated in document NW9 would not be acceptable in a semi-rural area. But
HMIP will not be obliged, if they grant an authorisation to adopt those limits.
On the contrary, they have already indicated that the limits they would adopt
would be lower. Thus, HMIP
impact of the emissions acceptable, and impose those limits.
That seems to
me to be coherent and clear reasoning. It depends upon the proposition, which I
accept and I understand Mr Mole to have accepted in argument, that in deciding
what limits to impose, HMIP are entitled, indeed are required, to take into
account the nature of the area in which the plant is to be situated and the
area which will be affected by the maximum deposit of chemicals from the stack.
That brings me
to Mr Mole’s main argument. I summarise this as follows. Once planning
permission has been granted, there is in practice almost no prospect of HMIP
using their powers to refuse to authorise the operation of the plant. Thus,
whatever the impact of the emissions on the locality will be, HMIP are likely
to do no more than ensure that the best available techniques not entailing
excessive costs be used, which may leave the amounts of deleterious substances
released at an unacceptable level.
This, submits
Mr Mole, could be prevented by refusing planning permission, which would then
presumably leave it to NWG, if they were able to do so, to seek additional
evidence to support a new application which would overcome the inspector’s
concerns. The Secretary of State was thus wrong to say at para 20 of his
decision that the controls under the Environmental Pollution Act are adequate
to deal with the emissions and the risk to human health. By so concluding, the
Secretary of State: (1) misunderstood the powers and the functions of HMIP; (2)
contravened the precautionary principle; and/or (3) reached an irrational
conclusion.
I comment
first that the matters about which the inspector and his assessor expressed
concern were three. First, the lack of clear information about the existing
quality of the air in the vicinity of the site, which was a necessary starting
point for deciding what impact the emission of any polluting substances from
the stack would have. It was established that such substances from the stack
would have. It was established that such substances would include dioxins,
furans and cadmium. Second, in relation to cadmium though not in relation to
the other chemicals, any increase in the quality of cadmium in the air in a
rural area is contrary to the recommendations of the World Health Organisation.
This, however, would not be the case in an urban area. In other words, an
increase would not of itself contravene World Health Organisation
recommendations relating to an urban area. Third, there is much public concern
about any increase in the emission of these substances, especially dioxins,
from the proposed plant. In the absence of either practical experience of the
operation of a similar plant or clear information about the existing air
quality, those concerns cannot be met. It was because of those concerns that
the inspector recommended refusal.
I express my
views as follows. Public concern is, of course, and must be recognised by the
Secretary of State to be, a material consideration for him to take into
account. But if in the end that public concern is not justified, it cannot be
conclusive. If it were, no industrial development — indeed very little
development of any kind — would ever be permitted.
The central
issue is whether the Secretary of State is correct in saying
with the concerns of the inspector and the assessor. The decision which was to
be made on the appeal to the Secretary of State lay in the area in which the
regimes of control under the Planning Act and the Environmental Pollution Act
overlapped. If it had become clear at the inquiry that some of the discharges
were bound to be unacceptable so that a refusal by HMIP to grant an
authorisation would be the only proper course, the Secretary of State following
his own express policy should have refused planning permission.
But that was
not the situation. At the conclusion of the inquiry, there was no clear
evidence about the quality of the air in the vicinity of the site. Moreover,
for the purposes of deciding what standards or recommendations as to emissions
to apply, the inspector described the site itself as ‘semi-rural’, while the
area of maximum impact to the east he described as ‘distinctly rural’.
Once the
information about air quality at both those locations was obtained, it was a
matter for informed judgment: (i) what, if any, increases in polluting
discharges of various elements into the air were acceptable; and (ii) whether
the best available techniques, etc would ensure that those discharges were kept
within acceptable limits.
Those issues
are clearly within the competence and jurisdiction of HMIP. If in the end the
inspectorate conclude that the best available techniques, etc would not achieve
the results required by sections 7(2) and 7(4), it may well be that the proper
course would be for them to refuse an authorisation. Certainly, in my view,
since the issue has been expressly referred to them by the Secretary of State,
they should not consider that the grant of planning permission inhibits them
from refusing authorisation if they decide in their discretion that this is the
proper course.
Thus, in my
judgment, this was not a case in which it was apparent that a refusal of
authorisation will, or will probably be, the only proper decision for HMIP to
make. The Secretary of State was therefore justified in concluding that the
areas of concern which led to the inspector and the assessor recommending
refusal were matters which could properly be decided by HMIP and that their powers
were adequate to deal with those concerns.
The Secretary
of State was therefore also justified in concluding that the proposed plant
met, or could by conditions on an authorisation be required to meet, the third
criterion in policy EN16 in the structure plan and thus accorded with that
plan.
For those
reasons, I conclude that the Secretary of State did not err in law, nor did he
reach a decision which was irrational or in any other way outside his statutory
powers.
I have not in
terms referred to much of the judgment given by the deputy judge. This is
mainly because the matter was somewhat differently argued before us.
Nevertheless, I agree with the conclusions he reached in his careful and
admirable judgment. So agreeing and for the reasons I have sought to set out, I
would dismiss this appeal.
HOFFMANN
LJ: I agree.
HOBHOUSE
LJ: I also agree.
Appeal
dismissed. Both respondents to have their costs. Leave to appeal to the House
of Lords refused.