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)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan,Lady Justice Black,Lord Justice Aikens |
| Judgment Date | 05 February 2015 |
| Neutral Citation | [2015] EWCA Civ 55 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2014/0666 |
| Date | 05 February 2015 |
[2015] EWCA Civ 55
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE MITTING
CO/5245/2013
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Aikens
Lord Justice Sullivan
and
Lady Justice Black
Case No: C1/2014/0666
and
James Maurici QC and Andrew Byass (instructed by Nabarro LLP) for the Appellant
David Blundell (instructed by Treasury Solicitors) for the Respondent
Emma Harling-Phillips (instructed by DLA Piper UK LLP) for the Interested Party
Hearing date: 27 th January 2015
Introduction
This is an appeal against the Order dated 6 th February 2014 of Mitting J dismissing the Appellant's claim for judicial review of the Rookery South (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
Covanta applied to the (now abolished) Infrastructure Planning Commission ("the Commission") for an order granting development consent under the Planning Act 2008 ("the 2008 Act") for the construction of a Resource Recovery Facility ("RRF"), comprising an Energy from Waste ("EfW") plant with an expected nominal throughput of 585,000 tonnes of residual waste per annum which would generate an average gross output of approximately 65 MWe, and a Materials Recycling Facility ("MRF") which would provide for the management of the incinerator bottom ash produced by the EfW plant, at the Rookery South Pit, near Stewartby, Bedfordshire.
The EfW plant was a nationally significant infrastructure project ("NSIP") for the purposes of the 2008 Act. The application for the order granting development consent also sought compulsory acquisition powers under sections 120 and 122 of the 2008 Act both to acquire land, including land owned by the Appellant and by local authorities and statutory undertakers, and to acquire rights over land, including a right to extinguish a restrictive covenant which benefits land owned by the Appellant.
A Panel of three Commissioners ("the Panel") was appointed to determine the application. Following an examination of the application between the 18 th January 2011 and 15 th July 2011, which included an issue specific hearing on compulsory acquisition between the 27 th June and 1 st July 2011, the Panel set out the reasons for its decision to make the Order in its "Panel's Decision and Statement of Reasons" ("SR") dated 13 th October 2011. The Order was made by the Panel under section 114(1) of the 2008 Act on 22 nd November 2011.
Because the Order authorised the compulsory acquisition of land belonging to local authorities and statutory undertakers which had made representations which they had not withdrawn, section 128 of the 2008 Act (now repealed) provided that the Order was subject to special parliamentary procedure. The Order was laid before Parliament on the 29 th November 2011. Having considered petitions against the Order, the Joint Committee on the Rookery South (Resource Recovery Facility) Order 2011 reported without amendment on the 13 th February 2013, and by virtue of section 6(1) of the Statutory Order (Special Procedure) Act 1945 ("the 1945 Act") the Order came into force on the 28 th February 2013 when the Joint Committee's Report was published in Parliament.
Mitting J's judgment
Before Mitting J the Order was challenged on two grounds:
(1) The Panel had failed to give adequate reasons for its conclusion that there was a compelling case in the public interest for the grant of compulsory acquisition powers, because it had failed to explain why it had concluded that there were no reasonable alternatives to compulsory acquisition.
(2) The Respondent failed, in the light of the long delay between the making of the Order on 22 nd November 2011 and its coming into force on 28 th February 2013, to consider whether it was necessary to update the environmental information in the Environmental Statement which had accompanied the application, so as to ensure that his decision was based on "current knowledge and methods of assessment" as required by Article 5(1) of Directive 2011/92/EU ("the Directive").
Mitting J rejected both of these grounds. In grounds 2 and 3 of its appeal to this Court the Appellant contends that Mitting J erred in rejecting its challenge on grounds (1) and (2) (above). When dealing with ground (1), Mitting J accepted in paragraph 17 of his judgment the Respondent's submission as to the interrelationship between section 122(3) of the 2008 Act, which required the Panel to include the provisions authorising compulsory purchase in the Order only if it was satisfied that there was a compelling case in the public interest for the land to be acquired compulsorily, and section 104(3) of the Act which required the Panel (subject to subsections (4)-(8)) to decide the application in accordance with any relevant national policy statement ("NPS"). The relevant NPSs in this case were the Overarching National Policy Statement for Energy (EN-1), and the National Policy Statement for Renewable Energy Infrastructure (EN-3). These said that the need for new renewable energy projects was urgent (paragraph 3.4.5 of EN-1), and that the Commission "should act on the basis that the need for infrastructure covered by this NPS has been demonstrated." There is no challenge to this paragraph of Mitting J's judgment.
In paragraph 18 of the judgment Mitting J went somewhat further, and expressed his own view as follows:
"18. For my part I find it difficult to conceive of circumstances in which the Panel in applying statutory guidance, as it must, which established an urgent need for development, could legitimately conclude that there was not a compelling case as a necessary element of the scheme, justifying compulsory acquisition of rights in land. To that extent, the established distinction between tests for the grant of planning consent and the grant of a power of compulsory acquisition (see Trusthouse Forte Hotels Ltd v Secretary of State for the Environment (1986) 53 P&CR 293 at page 299, paragraph 2 and page 300, paragraph 6) has been modified by statute."
Ground 1
In ground 1 of its appeal the Appellant contends that the reasoning in paragraph 18 of the judgment is erroneous in a number of respects. I can deal briefly with this ground of appeal because it was agreed by all three parties that:
(a) the judge did err in this paragraph of his judgment (see paragraph 10 below); but
(b) the error in paragraph 18 of the judgment does not affect the outcome of the appeal because there is no suggestion that the Panel made the same, or (subject to the challenge in ground 2 (below) to the adequacy of the Panel's reasons in the SR) any other legal error in its decision to grant development consent.
The parties were agreed that the relationship between sections 104 and 122 of the 2008 Act was correctly set out in paragraphs 35 and 36 of Mr. Blundell's Skeleton Argument, as follows:
"35…..
(1) Section 104(3) of the 2008 Act requires "the application" to be decided in accordance with any relevant NPS;
(2) The tests for whether to grant powers of compulsory acquisition are set by section 122(2) and (3) of the 2008 Act and include, in section 122(3), that there must be "a compelling case in the public interest";
(3) Where "the application" includes proposed powers of compulsory acquisition of land, in assessing whether there is a "compelling case in the public interest" pursuant to section 122(3), the decision-maker will have to make that assessment in accordance with the contents of any relevant NPS by virtue of section 104(3);
(4) However, where, as in the present case, the NPS establishes an urgent need for development, this does not mean that the "compelling case in the public interest" test is automatically and necessarily met – section 104(3) means that, in assessing whether there is a "compelling case in the public interest", the need for the development must be treated as established and cannot be questioned, but it may be possible to meet the need without the use of the requested powers of compulsory acquisition;
(5) This is a reflection of the fact that section 104(3) is a broad provision, dealing with the determination of the application as a whole and leading to an order granting development consent which may include compulsory acquisition provisions, whereas section 122(3) is a narrower test dealing specifically with compulsory acquisition powers;
(6) The full and proper application of the section 122(3) test is guaranteed by section 104(6) which disapplies the requirement in section 104(3) where it would lead to unlawfulness under any enactment (i.e. including under a different provision of the 2008 Act) – thus, if there was any potential conflict between sections 104(3) and 122(3), the "compelling public interest" test in section 122(3) would not be overridden by section 104(3).
36. In this way, there is no conflict between section 104(3) and section 122(3). They each operate distinctly in the determination of the application overall (in the case of section 104(3)) and a request for compulsory acquisition powers (in the case of section 122(3)). To the extent that any conflict might otherwise arise because of the terms of particular provisions in an NPS, the conflict is avoided by virtue of section 104(6)."
The parties were...
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