Cornwall Waste Forum St Dennis Branch v The Secretary of State for Communities and Local Government (1st Appellant) Sita Cornwall Ltd (2nd Appellant)
| Jurisdiction | England & Wales |
| Judge | Carnwath LJ,Moore-Bick LJ,Arden LJ |
| Judgment Date | 29 March 2012 |
| Neutral Citation | [2012] EWCA Civ 379 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2011/2958 & 2972 |
| Date | 29 March 2012 |
[2012] EWCA Civ 379
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE COLLINS
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice Carnwath
and
Lord Justice Moore-Bick
Case No: C1/2011/2958 & 2972
CO/6088/2011
and
Rupert Warren (instructed by Treasury Solicitors) for the 1st Appellant
Richard Phillips QC & Mark Westmoreland Smith (instructed by Bond Pearce LLP) for the 2 nd Appellant
David Wolfe (instructed by Leigh Day & Co, Solicitors) for the Respondent
Hearing date : Monday 27th February, 2012
Introduction
These are appeals by the Secretary of State and by SITA Cornwall Ltd ("SITA") against the judgment of Collins J on 13 October 2011, on an application under section 288 of the Town and Country Planning Act 1990 by Cornwall Waste Forum St Dennis Branch ("the Forum"). The judge quashed a planning permission granted to SITA by the Secretary of State, for a waste treatment plant on land at St Dennis, Cornwall. The judge held, in short, that the Secretary of State had acted unfairly in his treatment of the Forum's arguments relating to the European Habitats Directive (92/443/EEC), and regulations made under it.
The site lies on the edge of an extensive area of existing and former china clay workings to the north and north-west of St Austell. It is close to two Special Areas of Conservation (SACs) designated under the Habitats Directive. One, St Austell Clay Pits SAC, is notable for a particularly rare species, the Western Rustwort ("Marsupella profunda"), which attracts the strongest level of protection under the Directive. The Directive is transposed into domestic law by the Habitats and Species Regulations 2010, SI/2010 No 490 (replacing 1994 Regulations in similar terms, which were in force in the earlier part of the inquiry).
The proposal required two forms of consent: planning permission, granted by the relevant planning authority (the County Council) or by the Secretary of State; and an environmental permit, granted by the Environment Agency. The procedures were operated in parallel:
i) On 20 March 2008 SITA applied to the County Council for planning permission, which they refused on 31 March 2009. SITA's appeal was on 9 th October 2009 recovered for determination by the Secretary of State (rather than an inspector) as a development of more than local significance. A public inquiry was held over 36 days, beginning on 16th March and ending on 7th October 2010. On 3 rd March 2011 the inspector reported to the Secretary of State, who on 19 th May 2011 issued his decision granting permission.
ii) SITA applied to the Environment Agency for an environmental permit in July 2008. On 28 January 2010 the Agency indicated that it was minded to issue the permit. On 8 July 2010 an advance copy of the draft permit was provided to the inquiry, and on 20 August 2010 the draft permit was issued for public consultation. Comments on the draft permit were received by the Inspector both before and after the end of the inquiry. The final permit was issued on 6 th December 2010, after the close of the inquiry, but all parties were notified and offered a further opportunity to comment to the inspector.
Underlying the arguments is an issue as to the allocation of responsibility, as between the Secretary of State and the Environment Agency, to undertake the assessment required by the Habitats Regulations. To show how this arises I turn to the relevant regulations.
The Habitats Regulations
There is no dispute that both the Secretary of State and the Environment Agency were "competent authorities" as defined (reg 7). Decision-making was governed by Part 6, in particular regulations 61 and 65:
i) Regulation 61 ("Assessment of Implication for European Sites…"):
"(1) A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which—
(a) is likely to have a significant effect on a European site ….. (either alone or in combination with other plans or projects), and
(b) is not directly connected with or necessary to the management of that site must make an appropriate assessment of the implications for that site in view of that site's conservation objectives…
(2) A person applying for any such consent, permission or other authorisation must provide such information as the competent authority may reasonably require for the purposes of the assessment or to enable them to determine whether an appropriate assessment is required.
(3) The competent authority must for the purposes of the assessment consult the appropriate nature conservation body and have regard to any representations made by that body within such reasonable time as the authority specify.
(4) They must also, if they consider it appropriate, take the opinion of the general public, and if they do so, they must take such steps for that purpose as they consider appropriate.
(5) In the light of the conclusions of the assessment, and subject to regulation 62 (considerations of overriding public interest), the competent authority may agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the European site…"
ii) Regulation 65 ("Co-ordination where more than one competent authority is involved"):
"(1) This regulation applies where a plan or project—
…..
(b) requires the consent, permission or other authorisation of more than one competent authority; …..
…..
(2) Nothing in regulation 61 (1) ….. requires a competent authority to assess any implications of a plan or project which would be more appropriately assessed under that provision by another competent authority…."
It can be seen that regulation 61(1) envisages a two-stage approach: first, consideration whether the proposal is "likely to have a significant effect"; secondly, if it is, an "appropriate assessment" of its implications for the SAC.
I note here a criticism made by Mr Phillips (for SITA) of the judge's summary of the two stage-approach. He had said (para 12):
"First, consideration… is given to whether it can be shown that no adverse effect can possibly result. This is a negative consideration; that is to say if it is not possible to say that no adverse effect might be occasioned then appropriate assessment must be made. That appropriate assessment will then decide whether the project is likely to have a significant effect on the site."
This, says Mr Phillips, misstates the test at both stages. At stage one, the test is not whether no adverse effect can possibly result, but whether there is a likelihood of significant effects. Conversely, at stage two, likelihood of significant effects is not the question; this has been decided at stage one. The question is the implications of those effects in relation to the conservation objectives of the site. He makes a similar criticism of the judge's comments at paragraph 36 ("the approach should be that if it is not possible to rule out any adverse effects then appropriate assessment should be made…")
While I see some force in this criticism, it is clear that the first stage sets a lower hurdle that the strict wording might be thought to imply. This appears from the decision of the European Court in Waddenzee (2004) Case 127/02. According to that judgment (para 45), an "appropriate assessment" will be required in relation to any project–
"… if it cannot be excluded on the basis of objective information that it will have a significant effect on that site…"
In any event the arguments in the present case have turned not on the nature of the test, but on allocation of responsibility for applying it. This depends principally on regulation 65(2). On its face that allowed, but did not require, the Secretary of State to leave the assessment under the regulations to the Environment Agency, if in the circumstances the project would be "more appropriately assessed" by them.
The Forum's case was that, as a result of representations express or implied, made before and during the inquiry, the inspector and through him the Secretary of State were legally committed to making the assessment themselves, but failed to do so. More specifically, it is said, they failed to address an important issue, raised by the objectors, as to the methodology adopted by the Agency for assessing significance.
This was the so-called "1% rule": that is, that if the long term "process contribution" for a pollutant is less than 1% of the relevant Air Quality Standard, its effects are deemed "insignificant" (see Environmental Permit para A3.1(ii)). It was the case of the County Council at the inquiry, supported by the Forum, that this rule should not be applied where pollution levels were already substantially above the "critical load" (see e.g. Power of Cornwall "Post-Closing response" para 4–3-4).
Representations
The sequence of exchanges on which the Forum relies is set out in the judgment. A summary here is sufficient. The following occurred before the opening of the inquiry:
i) In November 2009, when rejecting an email request from the objectors that an appropriate assessment be carried out before the inquiry, Mr Bolton for the Planning Inspectorate said:
"The inspector, on behalf of the Secretary of State, cannot… carry out an appropriate assessment before the inquiry. Evidence of discussion at the inquiry may contribute to the judgment on any likely...
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