Planning permission – Energy recovery facility for waste – Permit granted for facility by Environment Agency under pollution prevention and control (PCC) regime – Existence of permit taken into account by defendant planning authority in granting planning permission for facility – PPC permit quashed by consent – Whether rendering grant of planning permission unlawful – Claim dismissed
In November 2007, the defendant council granted planning permission to the interested party to construct and operate an energy recovery facility, with ancillary infrastructure including a waste transfer station. The application had been the subject of a detailed and lengthy report compiled by an officer of the defendants, in which he had considered issues of air quality and emissions. He concluded that those matters would be adequately dealt with under the pollution prevention and control (PPC) regime implemented pursuant to Directive 96/61/EC. At the date of the permission, a PPC permit had been granted by the Environment Agency (EA) under the relevant regulations; however, the permit had subsequently been quashed by consent on the ground that the EA’s reasons for its decision were insufficient on the issue of carbon dioxide emissions. The EA subsequently produced a new draft permit, in which its reasons were amplified.
The claimants applied for judicial review of the grant of planning permission on various grounds, including that quashing the PPC permit rendered the planning permission unlawful, since, in granting it, the defendants had taken into account an immaterial consideration, namely a PPC permit that had no effect. The claimants’ application for permission and the substantive hearing were heard together.
Held: The claims were dismissed.
The quashing of a decision was a matter of discretion. The question as to whether the planning permission should be quashed did not depend upon the precise legal effect of quashing the PPC permit. It was instead necessary to establish the reasons why the defendants had relied upon the existence of the permit and the reasons why the permit had been quashed, to determine the effect upon the defendants’ decision. The planning regime administered by local planning authorities and the PPC regime administered by the EA were separate but complementary. The report before the defendants had correctly advised as to the respective functions of the two regimes. It had endorsed the technical conclusions of the EA with regard to emissions and had found that those emissions would be subject to the rigorous controls of the PPC regime. The quashing of the PPC permit on the ground of insufficient reasons did not falsify the report or its conclusion that issues regarding the operation of the facility could and would be sufficiently dealt with under the PPC regime: Gateshead Metropolitan Borough Council v Secretary of State for the Environment [1994] 1 PLR 85 considered. The EA had not conceded, in respect of any of the issues of concern, that they would not be dealt with adequately by the PPC process. It had not been suggested that the EA was not satisfied that a PPC permit could deal satisfactorily with those matters that came within its remit, as against those to be dealt with by the local planning authority in the planning process. The new draft permit was in substance similar to the original one, save that it amplified the EA’s reasons.
Although there was no extant permit, the grant of such a permit was not a legal requirement as a precondition to the grant of planning permission. Moreover, if a future permit were found in future proceedings to be flawed on matters of substance, that would prevent the energy recovery facility from operating but would not mean that the planning permission was invalid, given the separate and complementary nature of the two regimes.
James Pereira (instructed by the legal department of Friends of the Earth) appeared for the claimant in the first application; Richard Harwood (instructed by EarthRights Solicitors, of Saffron Walden) appeared for the first claimant in the second application; Gordon Nardell (instructed by Hedleys, of East Horsley) appeared for the second claimant in the second application; Nathalie Lieven QC and Lisa Busch (instructed by the legal department of East Sussex County Council) appeared for the defendants; David Holgate QC and Daniel Kolinsky (instructed by Bond Pearce, of Bristol) appeared for the interested parties.
Sally Dobson, barrister
