R (on the application of Kent) v First Secretary of State and others

Planning permission for waste-disposal site — Environmental impact assessment — Requirement for Environment Agency permit — Whether EIA containing sufficient information for identification and assessment of risks — Whether first defendant entitled to leave detailed consideration of waste types to procedure on permit application — Claim dismissed The claimant lived in the vicinity of a salt mine that the third defendant proposed to use for the disposal of waste, some of which was hazardous waste. The proposals triggered requirements for: (i) the submission and consideration of an environmental impact assessment (EIA) with the application for planning permission, pursuant to regulation 3(2) of the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999; and (ii) an Environment Agency permit to be obtained under the Pollution Prevention and Control (England and Wales) Regulations 2000. The first defendant called in the third defendant’s planning application for his own determination. Following a public inquiry, he accepted his inspector’s recommendation to grant permission subject to conditions. In his decision, he stated that there was sufficient environmental information to comply with the 1999 Regulations. He noted that the EIA contained only an indicative list of acceptable waste types for disposal at the site, and that definitive and comprehensive information as to the precise nature of the waste to be stored in the mine had not been provided. However, he concluded that these were matters for the Environment Agency to consider as part of the permit procedure, for which further information would be required. A permit was later issued. The claimant challenged the secretary of state’s decision under section 288 of the Town and Country Planning Act 1990. He contended that the environmental information did not meet the requirements of the 1999 Regulations, since the indicative list of waste types was inadequate for the main effects of the proposals to be identified and assessed, as required by para 3 of Part II of Schedule 4 to the 1999 Regulations. He submitted that hard data capable of being scientifically validated was required. An issue arose as to the interrelationship between the requirements of the 1999 and 2000 Regulations. Held: The claim was dismissed. The decision maker in the EIA process had been concerned with the impact of the development on the use of land, while the decision maker in the permit process had been concerned with the potential for pollution. Some overlap was inevitable, but the two regimes were separate and had different functions. The decision maker in the planning process had to set the parameters within which the likely significant effects of the development could be assessed. However, within those parameters he was entitled to take into account the fact that some matters could properly be left for subsequent consideration and determination, whether by way of planning condition or permit process. Provided the decision maker in the EIA process had determined the parameters within which the future details could properly be ascertained and established, he or she could place reliance upon the proper operation of those further controls. In the present case, the EIA had not been so deficient that it could not reasonably be described as an environmental statement. The permit process had not been used as a surrogate for the EIA procedure. The EIA contained sufficient information to enable the Secretary of State to identify and assess the main effects of the development on the environment, and to set the parameters within which future details could be worked out. He was justified in leaving the detailed consideration of waste types to the permit process: R v Rochdale Metropolitan Borough Council, ex parte Milne [2001] JPL 470, Smith v Secretary of State for the Environment, Transport and the Regions [2003] EWCA Civ 262; [2003] 2 P&CR 11 and R (on the application of Blewett) v Derbyshire County Council [2004] Env LR 569 applied; Gateshead Metropolitan Borough Council v Secretary of State for the Environment [1995] Env LR 37; [1994] 1 PLR 85 considered. Robert Jay QC and Christiaan Zwart (instructed by Richard Buxton, of Cambridge) appeared for the claimant; Nathalie Lieven and Carine Patry (instructed by the Treasury Solicitor) appeared for the first defendant; Rhodri Price Lewis QC (instructed by Addleshaw Goddard) appeared for the third defendant; the second defendants, Cheshire County Council, did not appear and were not represented. Sally Dobson, barrister