R (Vetterlein) v Hampshire County Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SULLIVAN |
| Judgment Date | 14 June 2001 |
| Neutral Citation | [2001] EWHC 560 (Admin),[2001] EWHC 1736 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/253/2001 |
| Date | 14 June 2001 |
[2001] EWHC 560 (Admin)
IN THE HIGH COURT OF JUSTICE
(THE ADMINISTRATIVE COURT)
Royal Courts of Justice
Strand London WC2
Mr Justice Sullivan
CO/253/2001
MR MICHAEL FORDHAM (instructed by PUBLIC INTERESTED LAWYERS, BIRMINGHAM B3 1QS) appeared on behalf of the Claimant.
MR TIMOTHY STRAKER QC and MR MAURICE SHERIDAN (instructed by HAMPSHIRE COUNTY COUNCIL LEGAL DEPARTMENT, WINCHESTER SO23 8UJ) appeared on behalf of the Defendant.
MR LIONEL READ QC and STEPHEN TROMINS (instructed by THEODORE GODDARD SOLICITORS) appeared on behalf of the Interested Third Party.
MR TIMOTHY CORNER (Instructed by the Treasury Solicitor) appeared on behalf of the Second Interested Party.
This is a challenge to a decision of the Hampshire County Council's Planning and Transportation Committee at a special meeting on 11th December 2000 to grant planning permission to Hampshire Waste Services Limited (“HWS”) for the construction of an energy recovery facility and waste transfer station at Marchwood Industrial Park, subject to conditions, a legal agreement and the Secretary of State not calling in the application for his own determination. In a letter dated 3rd January 2001 the Secretary of State said that he had decided not to intervene.
The 3.8 hectare site occupies part of the former Marchwood Power Station, demolished in 1990, on the south side of the river Test. On the opposite side of the river is Southampton Docks, beyond that there is the city's civic centre and commercial area with extensive areas of housing to the north. The claimants live to the north of the city centre and the docks in residential areas 1.63, 1.79 and 2.14 miles from the centre of the application site, respectively. In excess of 64,000 people live within a radius of 2.14 miles from the centre of the application site.
The energy recovery facility will process by incineration around 165,000 tonnes of waste per annum reducing the volume of the waste by 90 percent. Some of the ten percent residue will be recycled. Approximately 14 mega watts of electricity will be generated and the waste transfer station will deal with around 25,000 tonnes per annum, principally recyclables and waste not suitable for incineration. In the interests of brevity I will refer to the facility as an incinerator and to the process as incineration, although I appreciate that there are significant differences in policy terms between simple incineration and energy recovery.
The Environment Agency, following a consultation which included a public meeting, issued an integrated pollution control (“IPC”) authorisation on 30th June 2000. The authorisation was subject to numerous conditions including in Part 2 conditions regulating the release of substances into air. Those substances included nitrogen dioxide.
The application for planning permission was submitted together with an environmental statement, technical appendices, and a non technical summary on 20th June. The environmental statement was available for inspection and the consultation process included a public meeting arranged by the Marchwood Parish Council.
The County Council received 24 letters of objection, including one from the first claimant, and a letter of support. No objections were raised by Southampton City Council, the New Forest District Council, the South West Hampshire Health Authority or the Environment Agency. Six days before the special meeting on 11th December councillors were supplied with a copy of a lengthy report on the application for planning permission by the county planning officer (“the report”).
The report was made available to the public either two or three working days in advance. The first claimant was allowed to address the special meeting for ten minutes in opposition to the application.
The Claimants' Grounds of Challenge:
On behalf of the claimants Mr Fordham challenges the decision of 11th December on three grounds: two substantive points and one procedural point. The first ground contends that the report was erroneous in a material respect in that it inaccurately summarised the environmental statement. The environmental statement had identified nitrogen dioxide as “the most critical pollutant”.
Among the applicable standards and guidelines it set out the World Health Organisation (“WHO”) guideline of 40 micrograms per cubic metre as an annual mean. In the remainder of this judgment I will omit further reference to micrograms per cubic metre when dealing with the question of standards. The air quality assessment annex 4 to the environmental statement (“the assessment”) showed that this current guideline was being exceeded in a number of locations in Southampton, thus any nitrogen dioxide which would be emitted by the incinerator would worsen an existing breach of WHO guidelines.
The point made on behalf of the claimants is summarised in the following way by Mr Watson, a partner in Public Interest Consultants, an environmental consultancy specialising in energy and waste issues, as follows:
“The background levels were already around and in excess of the air quality guidelines. The incinerator was a significant further contributor to pollution, which was going to make matters even worse. Even if the incinerator was not “leading to” breach of the standards, because of existing levels, that did not mean there would be no breach. Nor did it mean that the breach would not be made worse because of the incinerator. And it certainly did not follow that there was no risk to health. The air quality standards, designed to reflect public safety, were exceeded (ie breached).”
He added this:
“I have focused on one issue, namely nitrogen dioxide and the air quality standard. There are other points which could be made about other aspects, and would call for scrutiny were there some forum for public scrutiny of the evidence. However, I have stuck to an outline of what I consider to be the strongest point, appreciating that if this does not assist the Court others will not do so.”
Mr Fordham submits that the report erroneously told members that there was no breach of any standard and that therefore there was no health risk. Since members were not told of the existing breaches of the WHO guideline, members were, in effect, lulled into a false sense of security as to the lack of any health risk. As a result of the misleading report they failed to take into consideration a relevant factor (the existing breaches). Alternatively, they took account of an irrelevant consideration (the erroneous assertion that there was no existing breach). This first ground of challenge is based on “conventional” judicial review grounds.
The second ground is based on the proposition that the claimants' rights under article 8 of the Europe Convention on Human Rights (“the Convention”) to respect for their private and family lives and homes were engaged by the decision to grant planning permission. There is a direct link between the pollution complained of (adding further nitrogen dioxide emissions in an area where the WHO guidelines are already exceeded) and the claimants' quality of life. The County Council failed to acknowledge that article 8 applied on the false premise that there was no breach of the WHO guidelines.
The third ground, the procedural point, contends that the County Council's decision on 11th December was a determination of the claimants' civil rights for the purposes of article 6(1) of the Convention. No point is taken as to the independence of the Council as the decision taker, but it is said that in the absence of a public inquiry at which evidence could be tested, the claimants were denied the “fair and public hearing” to which they were entitled under article 6(1).
Procedural Issues:
Before turning to these three grounds of challenge, I should deal with a number of procedural issues. Pursuant to an order of Harrison J on 22nd March, the application for permission to apply for judicial review and the substantive hearing of this application have been dealt with together at this rolled up hearing. It was agreed by all parties that Mr Fordham should be allowed to present his full arguments on behalf of the claimants. He had prepared a detailed skeleton argument which he amplified during the first of the two days set aside for this hearing. In the course of his submissions he helpfully referred me to all of the relevant documents in a trial bundle which exceeded 600 pages in length and to the relevant authorities in a two-volume composite bundle of authorities which had been agreed between the parties.
Against this background I am satisfied that all the arguments open to the claimants on matters of fact and law have been placed before the Court. In the circumstances it would be wholly artificial to consider the by now academic question: is the claimants' case arguable? Having heard the arguments I am in a position to determine the substantive application for judicial review on its merits.
When these proceedings were commenced the Divisional Court had recently given judgment in R (Alconbury Developments Limited and Others) v Secretary of State for the Environment, Transport and the Regions, now reported in [2001] 2 Weekly Law Reports 1389 (“the Alconbury case”).
The claimants in these proceedings sought a declaration that the County Council's powers under the Town and Country Planning Act 1990 were incompatible with article 6. Accordingly, Harrison J invited the Secretary of State to exercise his right to intervene under section 5 of...
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