Planning – Environmental impact assessment – Risk assessment – Defendants granting permission for construction of anaerobic digestion plant – Claimant applying for judicial review – Whether defendants erring in failing to comply with Environmental impact assessment (EIA) Directive and implementing regulations – Whether defendants failing to comply with waste local plan policy – Whether proviso attached to conditional planning permission unlawfully enabling relaxation of restricted area for collection of feedstock for plant – Application allowed in part
The defendant local authority granted planning permission to the interested party to construct and operate an anaerobic digestion plant to produce energy in the form of heat and electricity through the breaking down of organic material by bacteria, in the absence of air. An essential part of the development was a sealed, underground slurry tank to store pig slurry, which was used to trigger the anaerobic digestion process. The pig slurry would be delivered in sealed tankers and discharged directly into the slurry tank.
An environmental impact assessment (EIA) was required for projects which fell within Schedule 2 of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (“the EIA Regulations”) and were likely to have significant effects on the environment. Where an EIA was carried out, an environmental statement had to be submitted by the developer, with a description of the development, explaining the likely significant effects on the environment and a description of the measures envisaged to prevent, reduce and offset any significant adverse effects on the environment.
In the present case, the original screening decision had treated the development as Schedule 2 development under the EIA regulations. Consequently the defendants had to decide whether the development was likely to have significant effects on the environment. If so, an environmental impact assessment (EIA) would have to be carried out. The opinion adopted by the defendants concluded that an EIA was not required.
The claimant applied for judicial review of the decision to grant permission. She asserted that: (i) the screening decision taken by the defendants, to the effect that no EIA was required was wrong in law because it relied upon mitigation measures relating to the risk of pollution of groundwater when the content of those measures was unknown: (ii) the defendants had erred in law by failing to require a bio-aerosol risk assessment, as required by its own policy; (iii) Condition 11 attached to the planning permission unlawfully enabled the defendants to relax restrictions on the geographical area for collection of feedstock for the digestion plant.
Held: The application was allowed in part.
(1) The defendants had lawfully taken into account all relevant considerations and lawfully concluded, as an exercise of judgment, that the proposed development did not constitute EIA development for which an EIA would be required. The relevant statutory consultee, the Environment Agency, had confirmed that incorporation of the necessary measures to address the management of both existing and surface water systems would ensure that the development would not lead to any significant adverse environmental impacts. Therefore, the defendants were reasonably entitled to conclude that the development was not likely to have significant effects on the environment and the screening opinion was not unlawful. To act as they did was not Wednesbury unreasonable nor otherwise unlawful: Gillespie v First Secretary of State [2003] EWCA Civ 400; [2003] 3 PLR 20 distinguished.
(2) The Suffolk Waste Local Plan (WLP) required that an applicant submit a bio-aerosol risk assessment in connection with an anaerobic digester. Whilst that policy was current the interested party had failed to submit a bio-aerosol risk assessment and the health risk issue was not covered in its environmental summary or the air quality assessment. The defendants’ pre-action response had been that residents and workers on the estate were protected by normal health and safety legislation. However, the WLP did not draw a distinction between employees, who would be left to the Health and Safety at Work Act 1974, and other persons who might be affected by bio-aerosols. The defendants’ policy chose to require assessment of those matters. Accordingly, the defendants had erred in considering the interests of the occupiers of premises on the interested party’s land differently from other occupiers nearby. Tenants, who might include employees of a landlord, might be in particular need of protection and reliance on generic health and safety at work legislation might be insufficient.
Notwithstanding that error, it was inappropriate to provide relief by way of judicial review. The evidence did not support the proposition that the alleged bio-aerosol risk was real. Overall it had been given proportionate consideration and advice obtained. By the time the permission was granted, the material considerations had changed so that the relevant part of WLP was no longer extant. The defendants would simply follow the current requirements which did not require a bio-aerosol assessment.
(3) Condition 11, which provided that feedstock “shall originate from locations within a 30 mile radius of the anaerobic digester facility unless otherwise approved in writing by the waste planning authority” could not lawfully be applied arbitrarily or without proper and proportionate consideration or reasoning, as any such application would render the defendants liable to judicial review. Further, and centrally, the condition did not allow for a key element of the planning consent for the anaerobic digestion plant to be changed at all. Nevertheless it had not been suggested by the defendants that the tailpiece was supported by any clear reasoning. Accordingly, the appropriate order was that relief be granted to the extent that the words “unless otherwise approved in writing by the waste planning authority” be severed from the consent. To that limited extent relief would be granted: R (on the application of Midcounties Co-operative Ltd) v Wyre Forest District Council [2009] EWHC 964 (Admin); [2009] PLSCS 222 and R (Salford Estates (No 2) Ltd) v Salford City Council [2011] EWHC 2097 (Admin) considered.
Richard Harwood QC (instructed by Richard Buxton Environmental and Public Law, of Cambridge) appeared for the claimant; Paul Stinchcombe QC and Jonathan Moffett (instructed by Suffolk Legal) appeared for the defendants.
Eileen O’Grady, barrister
