FCC Environment (UK) Ltd v The Secretary of State for Energy and Climate Change Covanta Rookery South Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mitting |
| Judgment Date | 06 February 2014 |
| Neutral Citation | [2014] EWHC 947 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/5245/2013 |
| Date | 06 February 2014 |
[2014] EWHC 947 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Mitting
CO/5245/2013
Mr James Maurici QC and Mr Andrew Byass (instructed by Nabarro WC1X 8RW) appeared on behalf of the Claimant
Mr David Blundell (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
Mr Tim Mould QC (instructed by DLA Piper EC2V 7EE) appeared for the Interested Party
( )
This case concerns the last but one scheme for streamlining the process for determining applications for development consent for major infrastructure projects. The case arises out of an application made by Covanta Rookery South Limited ("Covanta"), on 4 August 2010, for consent to build a combined waste treatment and electricity generating plant on a site of about 116 hectares at a disused clay pit, mostly owned by them in Bedfordshire. When constructed the plant is intended to process about 585,000 tonnes of waste and to generate 65 megawatts of electricity. The application was opposed by local authorities, who did not want a plant of such capacity within their area, and by a rival waste processor and generator, which owned other disused clay pits nearby: FCC Environment (UK) Limited ("the claimants").
Both the local authorities and the claimants had interests in the land on which the plant was to be built. The local authorities owned the subsoil of an access road, which ran across it. The claimants enjoyed the benefit of restrictive covenants, which prohibited the construction and operation of a waste processing plant on the site. Neither were willing sellers. To start on their project Covanta, therefore, required not only development consent, but also the power compulsorily to acquire land interests, if necessary, to carry out their project. A conventional planning process would have required them to obtain first, outline and detailed planning consent from the local planning authority, and then the grant of compulsory acquisition powers. Unless planning consent was given by the local authority, two separate inquiries would have been required.
Recognising that delay in the execution of major infrastructure projects has the potential to cause significant harm to the national economy. Parliament enacted the Planning Act 2008 to speed things up. In section 14(1) it identified Nationally Significant Infrastructure Projects ("NSIPs"), thereby avoiding, by the ordering of the words, a neater acronym. They included the onshore construction in England and Wales of an electricity generating station with a capacity of at least 50 megawatts.
An application for development consent was to be made not to the local planning authority, but to a new body, the Infrastructure Planning Commission, section 37(2). Applications would be determined by the Council of the Commission on the advice of a single commissioner, or by a Panel of Commissioners on the basis of procedures to be adopted by them based mainly on consideration of written submissions (see part 6). There were strict time limits for performance of those tasks.
The Commission could grant or refuse consent. If it granted it, the order granting development consent took effect when made by the Commissioner (section 114(1)(a)). Before it made the order it had to submit a draft to the Secretary of State who was responsible for checking that it conformed with EU law, (section 121(2) and (3)). Section 104 set out the approach which the Commission was required to adopt when determining "an application for an order granting development consent" (section 104(1)). By section 104(3), "[it] must decide the application in accordance with any relevant national policy statement" except in the circumstances specified in subsections (4) to (8), none of which now apply to this dispute.
A "National Policy Statement" is a statement issued by the Secretary of State setting out national policy in relation to one or more descriptions of development (section 5(1)). It must be published and laid before Parliament (section 5(9)). Section 120 set out what may be included in an order granting development consent. An order may include provision for the compulsory acquisition of land and the extinguishment of rights over land (section 124 and paragraphs 1 and 2 of Schedule 5). Section 122 sets out the purpose for which compulsory acquisition may be authorised:
"(1) An order granting development consent may include provision authorising the compulsory acquisition of land only if the decision-maker is satisfied that the conditions in subsections (2) and (3) are met.
(2) The condition is that the land—
(a) is required for the development to which the development consent relates,
(b) is required to facilitate or is incidental to that development, or
…
(3)The condition is that there is a compelling case in the public interest for the land to be acquired compulsorily."
Further protection was afforded to certain classes of landowner, whose land was to be compulsorily acquired. They included local authorities. Section 128(2) and (3) provided that "An order granting development consent is subject to special parliamentary procedure" if a local authority had made and not withdrawn a representation about the application for the order. That was a reference to the Statutory Orders (Special Procedure) Act 1945. The effect was to require an order granting development consent, which included provision authorising the compulsory acquisition of land owned by a local authority to be laid before Parliament (section 1(2) of the 1945 Act). Those opposed had 21 days in which to petition Parliament. A Joint Committee of both Houses would then consider the matter and report to Parliament. If it reported the order without amendment, it would come into effect on the date on which its report was laid before Parliament (section 6(1)). If it reported with amendments, or if it was not approved, legislation would be required (section 6(2) and (3)). The Secretary of State's only responsibility was to publish Parliament's approval. The Secretary of State had a residual power to change or revoke an order once made in the circumstances set out in Schedule 6 (section 153).
After considering extensive written material, and holding oral hearings to consider aspects of the application and objections to it, a Panel of the Commission decided to make an order granting development consent and submitted a draft order to the Secretary of State on 13 October 2011. The order was made on 22 November 2012. The special procedure was then activated by petitions from the local authorities. Others also petitioned, including the claimants. Thirty nine petitions were deposited by 19 December 2011.
Progress then slowed to a snail's pace. The Joint Committee decided upon the procedure it would adopt to consider the petitions on 11 July 2012. Substantive hearings began on 24 October 2012 and concluded on 13 February 2013. On that date the Joint Committee reported the order without amendments. It therefore came into effect automatically and immediately under section 6(1) of the 1945 Act on the same date, just under 15 months after it had been made. The claimants then applied to the Secretary of State to exercise his power to revoke the order. He refused to do so.
A challenge is brought to the order and to the Secretary of State's decision to refuse to revoke it. The informed observer of planning litigation will be unsurprised to learn that the challenge has nothing to do with the underlying merits of the case, but with two familiar issues:
(1) The adequacy of the Panel's reasons for including provision for compulsory acquisition of the benefit of the restrictive covenants enjoyed by the claimants;
(2) A contention that the Environmental Impact Assessment relied on by the Commission was out of date when Parliament approved the order.
The underlying purpose of the claim is not to improve public understanding of the Commission's decision, or to ensure that the habitats of species of birds and mammals is protected, but to protect the claimant's commercial interest in waste processing sites, which it owns, which have been, or might be, brought into operation. Local authorities have not joined in this claim.
The operative parts of the Panel's decision are set out in three chapters. It dealt first with the application for development consent. It directed itself, as required by section 104(3), that it must decide the application in accordance with relevant National Policy Statements. They were National Policy Statements for Energy EN1 and for Renewable Energy Infrastructure EN3. EN1 emphasises the need for energy projects. Paragraph 3.1 states under the hearing "IPC decision making":
"3.1.1 The UK needs all the types of energy infrastructure covered by this NPS in order to achieve energy security at the same time as dramatically reducing greenhouse gas emissions.
3.1.2 It is for industry to propose new energy infrastructure projects within the strategic framework set by Government. the Government does not consider it appropriate for planning policy to set targets for or limits on different technologies.
3.1.3 The IPC should therefore assess all applications for development consent for the types of infrastructure covered by the energy NPSs on the basis that the Government has demonstrated that there is a need for those types of infrastructure and that the scale and...
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The Queen (on the Application of FCC Environment (UK) Ltd) v The Secretary of State for Energy and Climate Change Covanta Rookery South Ltd (Interested Party)
...(Resource Recovery Facility) Order 2011 ("the Order"). The background to the Appellant's claim is set out in Mitting J's judgment: [2014] EWHC 947 (Admin). Facts 2 Covanta applied to the (now abolished) Infrastructure Planning Commission ("the Commission") for an order granting development......