Defendant council resolving to grant planning permission for waste incinerator – Claimant local residents seeking to challenge decision – Environmental statement addressing air pollution – Whether report prepared for defendants’ committee inaccurately summarising environmental statement – Whether defendants failing to take material consideration into account – Claim dismissed
Hampshire Waste Services Ltd applied to the defendant county council for planning permission for a new municipal waste incinerator at Marchwood Industrial Park (the site), which was less than 2.15 miles from each of the claimants’ homes. An environmental statement was submitted with the planning application. A planning officer’s report for the defendants’ planning and transport committee (the committee) summarised the environmental statement and stated, inter alia: “the findings showed that concentration of all emissions would be a small percentage of background levels and that total concentration… would not exceed the air quality standards set by the UK Government or the World Health Organisation”. The report’s ultimate conclusion was: “It is considered that the emissions and operation of the proposed plant are capable of meeting existing, and more stringent proposed, European and UK standards. Consequently, there would not be an objection on the grounds of a significant health risk”.
In December 2000 the committee resolved to grant planning permission. The claimants sought judicial review of that decision on the ground that the officer’s report inaccurately summarised the environmental statement regarding nitrogen dioxide and air quality. The claimants submitted that background levels were already in excess of the guidelines. Consequently, it was alleged that the committee failed to take a relevant consideration into account, namely, breaches of the guidelines, or, alternatively, it took irrelevant considerations into account, namely, the absence of any breach.
In addition, the claimants sought the court’s intervention on human rights grounds. They submitted that: (i) their rights under Article 8 of the European Convention on Human Rights were engaged by the resolution to grant planning permission; and (ii) the decision was a determination of the claimants’ civil rights under Article 6, and they had been denied a “fair and public hearing” under Article 6(1).
Held: The claim was dismissed.
The claimants focused their criticism upon air pollution, which was only one of many factors dealt with in the officer’s report. The remainder of the report was admirably clear and there could be no reasonable criticism of it when read as a whole. It was highly questionable whether the claimants’ criticism of that one aspect could invalidate it and make the report as a whole so misleading that the court should intervene. Further, the report did not inaccurately summarise the position in relation to nitrogen dioxide and air pollution. The report was looking forward to see whether any standards would be breached when the incinerator was in operation. It faithfully summarised the spirit and letter of the environmental statement. The claim was therefore dismissed.
Even accepting the claimants’ summary of the factual background, it could not be said that there was reasonable evidence that their quality of life was likely to be affected. The claimants’ Article 8 rights were not engaged by the committee’s decision. Although planning decisions may amount to a determination of civil rights and obligations, the instant case was not such a situation.
Michael Fordham (instructed by Public Interest Lawyers) appeared for the claimants; Timothy Straker QC and Maurice Sheridan (instructed by the solicitor to Hampshire County Council) appeared for the defendants; Lionel Read QC and Stephen Tromans (instructed by Theodore Goddard) appeared for Hampshire Waste Services Ltd as first interested party; Timothy Corner (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment, Transport and the Regions as second interested party.
Sarah Addenbrooke, barrister
