Bowen-West v Secretary of State for Communities and Local Government (1st Respondent) Northamptonshire County Council (2nd Respondent) Augean Plc (3rd Respondent)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice Tomlinson,Lord Justice Kitchin |
| Judgment Date | 18 January 2012 |
| Neutral Citation | [2012] EWCA Civ 321 |
| Docket Number | Case No: C1/2011/2986 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 January 2012 |
[2012] EWCA Civ 321
Lord Justice Laws
Lord Justice Tomlinson
Lord Justice Kitchin
Case No: C1/2011/2986
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(His Honour Judge Stewart QC)
Royal Courts of Justice
Strand, London, Wc2a 2ll
Mr Richard Drabble QC and Ms Zoe Leventhal (instructed by Richard Buxton Environment and Public Law) appeared on behalf of the Appellant.
Mr Rupert Warren (instructed by the Treasury Solicitor) appeared on behalf of the First Respondent
The Second Respondent did not appear and was not represented.
Mr Robert McCracken QC and Ms Annabel Graham Paul (instructed by Dickinson Dees) appeared on behalf of the Third Respondent.
This is an appeal with permission granted by Carnwath LJ against the judgment of His Honour Judge Stephen Stewart QC (sitting as a deputy High Court judge) by which on 3 November 2011 he dismissed the appellant's application brought under section 288 of the Town and Country Planning Act 199) for an order to quash a decision of the Secretary of State set out in a decision letter dated 24 May 2011. By that decision, the Secretary of State granted to the third respondents, Augean plc, a permission to dispose of low level radioactive waste ("LLW") in addition to hazardous waste ("HW") which was already permitted, at a hazardous waste landfill site known as the East Northamptonshire Resource Management Facility.
The grant of permission enures until expiry of the existing permission on 31 August 2013. The appeal requires the court to revisit obligations arising under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 ("the Regulations"), which transpose the requirements of Council Directive 85/337/EEC (the Directive").
The appellant is a local resident, a member of a group called King's Cliffe WasteWatchers, which participated in the inquiry which was to inform the Secretary of State's decision to grant planning permission. Consent for the disposal of HW at the site had been granted in 2006. That consent allowed for the annual deposit of 249,000 metric tons of such waste, together with the emerged materials.
On 21 July 2009 the third respondents applied for permission to fill certain parts of the site, referred to as Phases 4B, 5A and 5B with LLW. The application was refused by the local waste authority (the second respondent), but granted by the Secretary of State on 24 May 2011 after a public inquiry conducted in October and November 2010 by an inspector appointed by the Secretary of State.
The principal issue in this appeal has its genesis in the fact that, before the refusal of planning permission by the second respondents, the third respondents had decided that they would seek permission to extend the period for completion of the proposed works to 2016 and that in 2011 they would also seek a major extension of the landfill site to accommodate one million cubic metres of waste by 2026 with a maximum permitted input rate of 249,999 cubic metres per annum.
According to the Inspector's report (paragraph 7.73, to which I will return), it had not been decided by the time of the inquiry whether only HW was to be disposed of in this extended facility or LLW was to be included. But the prospective application for permission for this larger scheme would clearly allow for the disposal of LLW (see paragraph 9.10 of the witness statement of Dr Gene Wilson prepared on behalf of the third respondents for the enquiry).
There is no contest but that the third respondents' application of 21 July 2009 was for Environmental Impact Assessment (EIA) development, so that an Environmental Statement was required under the regulations. An Environmental Statement was accordingly prepared, but it addressed the environmental effects of the current proposal in isolation. The central question we have to decide is whether the Secretary of State deciding on appeal whether to allow the July 2009 application was bound to treat the intended further proposals as involving or constituting "indirect, secondary or cumulative effects" of the existing proposal within the meaning of paragraph 4 of Part I of Schedule 4 to the Regulations. An Environmental Statement has to include (see paragraph 2.1(a) of the Regulations):
"…such of the information referred to in Part I of Schedule 4 as is reasonably required to assess the environmental effects of the development."
Paragraph 4 of Part I of Schedule 4 stipulates:
".description of the likely significant effects of the development on the environment, which should cover the direct effects and any indirect, secondary, cumulative, short, medium and long-term, permanent and temporary, positive and negative effects of the development, resulting from:
(a)the existence of the development…"
Mr Drabble QC for the appellant also seeks to put an alternative case, namely that the "project" which the Inspector and Secretary of State had to consider was in fact the larger scheme not yet applied for by the third respondents; and for that reason the larger scheme's effects had to be considered. This argument is raised in a supplementary skeleton and I will return to it.
The appellant's principal case, in briefest outline, is that the current development for which planning permission was granted by the Secretary of State in May last year is "demonstrably but Phase 1 of a much larger scheme and will lead to a 'foot in the door' for major further planning permissions on the same site for the same use" (see paragraph 1 of the appellant's principal skeleton). That being so, the appellant says that the deputy judge ought to have concluded that the Secretary of State had erred in failing to treat the intended further proposals as involving "indirect secondary or cumulative effects" and ought, accordingly, to have held that those effects should have been assessed within the EIA process.
There is a further ground of appeal. The appellant says that the deputy judge was also in error in applying the conventional Wednesbury standard of review ( Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 QB 223) as a test of the legality of the Secretary of State's view as to the proper scope of the required EIA. It is submitted that the law of the European Union requires a more intensive judicial scrutiny.
I should first say a little about the consideration given to the case by the Inspector and the Secretary of State. The second respondent authority was alive to the intended further proposals when they considered the July 2009 application. They had been informed of them in June 2010. On 27 July 2010, they approved "initial reasons for refusal" of the application, which included this:
"(a) The application is for piecemeal development of a project that should be the subject of a comprehensive application.
(b) The Environmental Statement submitted with the application assessed the application proposal in isolation, whereas it is in reality part only of a more substantial development: the application cannot be determined without assessment of the cumulative effects of the totality of the project."
It will be apparent from this that the second respondents are, so to speak, in the same camp as the applicant.
The third respondents and second respondents both made representations as to the adequacy of the Environmental Statement to the planning inspectorate. The inspectorate issued a response on 1 October 2010 as follows:
"In the run-up to the inquiry it has emerged that the appellant also desires both to achieve an extension to the ENRMF site, and to achieve an extension to the life of the currently permitted site. Neither of these intentions forms part of the current appeal proposal. Northamptonshire County Council (NCC) and the appellant dispute the extent to which these intentions have previously been made evident to the Council and to the public…
In the Planning Inspectorate's view, the matters raised in relation to a future planning application for extension of the currently permitted site are not in themselves sufficient to support or to justify a requirement for further environmental information to be submitted under Regulation 19 of the [Regulations]."
The issue of the appropriate scope of the EIA in the case was, however, revisited by the Inspector and the Secretary of State. In discussing the second respondent's reasons for refusing planning permission in his report, the Inspector said this:
"7.73. NCC was able to deal with the application that led to this appeal on the basis of the information that it had including the Environment Statement (ES). Augean advises that it only decided in May 2010, after the preparation of the ES, that it will seek to extend the use for hazardous waste until 2026 and, even now (at the time of the inquiry), states that it has not yet decided whether that application will include LLW. The current appeal is not part of a piecemeal proposal or an integral element of a comprehensive scheme; consequently, there would be no cumulative impacts of concern deriving from any future application that might include LLW. This appeal is for a stand-alone proposal which can be and is being considered on its own merits and, no doubt by reason of the precedent arguments outlined above, the appeal decision to be made could be a factor in any decision by Augean about a future application. It is not unusual for applications to be made to...
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