Waste-treatment facility — Planning permission — Condition requiring submission of further information as to emissions — Whether environmental impact assessment inadequate — Whether further information should have been required before permission granted — Claim allowed
The claimant group had been formed to oppose proposals by the interested party to develop a waste-treatment and recycling facility. The defendant planning authority granted planning permission for the facility after considering the developer’s detailed environmental impact assessment (EIA), and following the recommendation contained in the planning officer’s report. The officer did, however, express concerns as to the efficacy of the proposed “negative air pressure” system for controlling emissions. Thus, one of the conditions attached to the permission stated that no development should take place until a report had been submitted specifying the expected levels of all pollutants from the facility and their predicted emission level into the atmosphere. Other conditions related to the containment of emissions and required the installation of suitable and sufficient plant to abate dust, odour and other pollutants prior to the release of processed air into the atmosphere.
The claimant sought to quash the planning permission by way of judicial review. It contended that the EIA was insufficient to enable the defendants to assess, as they were required to do under the Town and Country Planning (Environmental Impact Assessment) Regulations 1999, whether the effects upon the environment would be significant. The claimant argued that, because the environmental statement indicated that there could be significant environmental effects, the defendants should have required additional information prior to granting permission and not as a condition of the development. The claimant also argued that the defendants had failed to give effect to the principles of best practicable environmental option (BPEO), since they had rejected an alternative site following the planning officer’s erroneous report that it was located on a flood plain.
Held: The claim was allowed.
1. The material principles to be applied were as follows: (i) the decision as to whether a process or activity had significant environmental effects was a matter for the judgment of the planning authority, and in making that judgment they had to have sufficient details of the nature of the development, its effect upon the environment and any mitigating measures; (ii) it was for the planning authority to decide whether they had sufficient information, which did not all need to be available material so long as it was adequate to enable them to reach a clear decision; (iii) in making their determination, the authority could have regard to mitigating measures, provided that they were sufficiently specific, were available and there was no real doubt as to their effectiveness; (iv) if there were uncertainty, such that the authority could not be sure whether or not the effects would be significant, they should seek further information from the developer before reaching a conclusion, and should not seek to regulate any future potential difficulties merely by the imposition of conditions; and (v) where the possibility of significant effects was uncertain, the authority could not dispense with the need for further information on the basis that other enforcement agencies would ensure that steps were taken to prevent improper pollution, although they should assume that such agencies would act competently and should not therefore anticipate problems on the basis that the agencies might not do so: Smith v Secretary of State for the Environment, Transport and the Regions [2003] EWCA Civ 262; [2003] 2 P&CR 11 and Gillespie v First Secretary of State [2003] EWCA Civ 400; [2003] Env LR 30 applied.
In the present case, the planning officer had not, in his report, reached the view that there were no significant environmental effects, but instead had left that open. Given his concerns about the efficacy of the negative-pressure system, it was doubtful whether he could have been satisfied that the mitigating measures did not need to be subject to the consultation process. In the circumstances, the information that the planning authority required, and that they had stipulated should be made available prior to the commencement of development, should have been made available before the planning permission was granted. The permission was therefore flawed and should be quashed.
2. The claimant’s second ground of challenge would be dismissed. The planning officer’s report had made it clear that the alternative site was subject to flood-plain constraints; that was not the same as saying that it was in fact within the flood plain. The officer had clearly formed the unambiguous view that the alternative site was not BPEO and that there was a major flooding problem.
David Wolfe (instructed by Public Interest Lawyers) appeared for the claimant; Timothy Jones (instructed by the solicitor to Herefordshire County Council) appeared for the defendants; the interested party, Estech Europe Ltd, did not appear and was not represented.
Sally Dobson, barrister
