Planning permission – Public inquiry – Legitimate expectation – Application for permission for waste incinerator – Whether legitimate expectation that planning inspector would decide on need for appropriate assessment of effects on special areas of conservation under Conservation of Habitats and Species Regulations 2010 – Whether breach of such expectation – Planning permission quashed – Appeal allowed
The respondent represented objectors at a public inquiry into the second appellant’s application for planning permission for an incinerator to generate energy from waste on land in St Dennis, Cornwall. The site of the proposed development was close to two special areas of conservation (SACs), designated pursuant to Council Directive 92/443/EEC (the Habitats Directive) and the Conservation of Habitats and Species Regulations 2010.
At an inquiry before the first appellant’s inspector, argument and evidence centred on the requirement, in regulation 7 of the 2010 Regulations, for an “appropriate assessment” of the conservation implications of plan or projects likely to have a significant effect on a European site, including an SAC. The respondent contended that the incinerator facility was likely to have significant effects and that an appropriate assessment was therefore necessary. The Environment Agency (EA) disagreed; it applied the “1% rule” under which the effects of the long-term “process contribution” for a pollutant were deemed insignificant if they were less than 1% of the relevant air quality standard. It later granted the necessary environmental permit for the use of the facility without requiring an assessment.
In his subsequent report, the inspector reached no view on significant effects or the need for an appropriate assessment. Instead, he indicated that, out of the two competent authorities whose consent was required for the development, namely the first appellant and the EA, the latter was the “appropriate authority” to assess its conservation implications, within the meaning of regulation 65. The first appellant allowed the appeal and granted planning permission on the inspector’s recommendation.
In proceedings brought by the respondent, the planning permission was quashed on the ground that the inspector had breached a legitimate expectation, derived from pre-inquiry submissions and the course of events at the inquiry, that he would reach his own decision on the need for an appropriate assessment: see [2011] EWHC 2761 (Admin); [2011] PLSCS 254. The appellants appealed.
Held: The appeal was allowed.
Representations made before and during the inquiry had given rise to a legitimate expectation that the inspector and the first appellant would themselves address the issue of significant effects and, if necessary, of appropriate assessment. The clear expectation of all at the beginning of the inquiry was that the inspector, and on his advice the first appellant, would deal with the issue of whether an appropriate assessment was required under regulation 61, as part of the process of arriving at a planning decision on the merits of the proposal as a whole. However, that finding did not lead to the result that the planning permission should be quashed.
First, the relevant “competent authority” was the first appellant, not the planning inspectorate or the inspector. The inspector had no authority to commit the first appellant to an election under regulation 65(2), or to the form of his decision. His task was limited to holding the inquiry and providing a report to the first appellant. Second, the relevant representations reflected the circumstances at the time when they were made. Nothing said then could be treated as a binding commitment as to the position under the regulation 65 if circumstances changed, as they had done, so that the only relevant issues were ones within the competence of the EA. Third, in the context of the planning appeal, the debate about responsibility under the Directive had no practical significance in itself. One aspect of the planning decision for which the first appellant had responsibility was whether there would be harm to acknowledged nature conservation interests. Either as planning authority or as decision-maker under the Habitats Directive, the first appellant was entitled to be guided by the expertise of the relevant specialist agencies, the EA and Natural England, when considering that issue. Only if their guidance was shown to be flawed in some material way would his own decision, relying on that guidance, become open to challenge for the same reason.
By implicitly accepting the reasoning of the EA, which included reliance on the 1% rule, the first appellant had effectively decided that issue. If there was an issue as to the legality of the 1% rule, the respondent could have raised it in the instant proceedings. It had chosen not to do so. It followed that the respondent had not been unfairly deprived of anything. There was no justification for remitting the issue to the first appellant purely on the basis that such a challenge had not been shown to be unarguable, without any persuasive reason to think that the ultimate decision would be any different.
Rupert Warren (instructed by the Treasury Solicitor) appeared for the first appellant; Richard Phillips QC and Mark Westmoreland Smith (instructed by Bond Pearce LLP) appeared for the second appellant; David Wolfe (instructed by Leigh Day & Co) appeared for the respondent.
Sally Dobson, barrister
