Planning permission – Public inquiry – Legitimate expectation – Application for planning permission for waste incinerator – Objectors arguing that permission not to be given without appropriate assessment of effects on special areas of conservation under Conservation of Habitats and Species Regulations 2010 – Whether inspector breaching legitimate expectation that he would reach decision on need for appropriate assessment – Claim allowed
The claimant, an unincorporated association, comprised three groups that were parties to a public inquiry into an appeal by the second defendant against a refusal of planning permission for the construction of an incinerator to generate energy from waste on land in St Dennis, Cornwall. The fourth defendant, as the waste planning authority, had refused permission on grounds relating to the effect of the development on two nearby 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.
Argument and evidence at the inquiry, before the first defendant’s inspector, 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 claimant contended that the incinerator facility was likely to have significant effects and that an appropriate assessment was therefore necessary. The third defendant, the Environment Agency (EA), disagreed and later granted the necessary permit for the use of the facility without requiring an assessment because it considered that there could be no adverse effects on conservation.
In his final decision, the inspector reached no view on the effects of the facility or the need for an appropriate assessment. Instead, he indicated that, out of the two competent authorities whose consent was required for the development, the EA was the “appropriate authority” to assess its conservation implications, within the meaning of regulation 65. On his recommendation, the first defendant allowed the appeal and granted planning permission.
The claimant applied to quash the planning permission under section 288 of the Town and Country Planning Act 1990. It contended that the inspector had been obliged to reach his own decision on the need for an appropriate assessment and had not been entitled simply to defer to the views of the EA. In that regard, it submitted that the inspector had proceeded throughout the inquiry on the basis that he would decide the appropriate assessment issue and that, by failing to do so, he had breached the claimant’s legitimate expectation.
Held: The claim was allowed.
Where planning permission was sought for a facility, the authority responsible for the planning decision needed to consider whether that facility, if constructed, would inevitably be likely to have an adverse effect on an SAC since, if that were so, then permission should not be granted. It should also consider whether the imposition of controls, by way of conditions in the planning permission, would be appropriate to ensure that no damage was done. It was then for the Environment Agency to consider what steps should be taken to ensure that the emissions were kept as low as possible so as to avoid any damage being caused. There was an obvious overlap and it was not possible to say, in any given case, that the planning considerations should defer to control by the authority responsible for the grant of a permit.
It had clearly been envisaged by all parties that the inspector would need to hear evidence, and reach a decision, on whether an appropriate assessment was needed and also, if possible, on what that appropriate assessment should decide. The inspector had specifically invited the parties to address, in closing submissions, the weight that should be given to the EA’s views. At no point during the inquiry process had he suggested that the first defendant might not be the relevant competent authority for the purposes of the 2010 Regulations, or that he might not consider or decide on the contentions that the EA was wrong in its view that no adverse effects were possible. The objectors had been led to believe that the inspector would deal with the appropriate assessment issue on the basis that the first defendant was the appropriate competent authority. They had not been disabused of that expectation by anything said by the inspector in the course of the inquiry process.
The failure to comply with the objectors’ expectation had resulted in unfairness to them since it meant that there had been no decision on their challenge to the EA’s conclusion that no appropriate assessment was needed. Since it was expected that the inspector would deal with the challenge to the EA’s view, the claimant had seen no need to bring that challenge by way of a judicial review claim in respect of the EA’s decision to issue the permit. The inspector’s report, and the first defendant’s decision, had not been made public until the time limit for such a judicial review challenge had expired. Although evidence had been put before the inspector that the EA had got it wrong, the inspector had failed to deal with it, or reach any decision on it, because he had wrongly taken the view that it was not a matter for the planning process and concluded that the EA, through the environmental permit system, was the competent authority. Where the claimant was contending that the emissions from the incinerator were bound to have an adverse effect and that an appropriate assessment was required, that was a matter for the planning process.
There was no overriding public interest justifying a departure from the fulfilment of the claimant’s expectation: R (on the application of Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363 applied. The Habitats Directive and 2010 Regulations were the law and had to be obeyed. Since there was an arguable issue on the matter, it would be a breach of the regulations not to consider properly whether an appropriate assessment was needed. In those circumstance, the court, having found an error of law, could not properly exercise its discretion to refuse relief and the planning permission should accordingly be quashed.
David Wolfe (instructed by Leigh Day) appeared for the claimant; Rajendra Desai appeared for the claimant for judgment on 13 October 2011; Hereward Phillpot (instructed by the Treasury Solicitor) appeared for the first defendant; Mark Westmoreland Smith (instructed by Bond Pearce) appeared for the second defendant; the third and fourth defendants did not appear and were not represented.
Sally Dobson, barrister
